Author Archives: Alex Stein

Suits against labs for failure to identify illness or genetic disorder sound in ordinary negligence rather than medical malpractice

May 9, 2014

Ho–Rath v. Rhode Island Hospital, — A.3d —, 2014 WL 1765421 (R.I. 2014)

Last week, the Supreme Court of Rhode Island decided that suit against a lab for failure to identify illness or genetic disorder sounds in ordinary negligence and not in medical malpractice. The “ordinary negligence” sound is music to the plaintiffs’ ears: it exempts them from the statutory caps on damages, from the restrictive limitations and repose provisions, from demanding requirements for expert testimony, and from other procedural burdens. See here.

This ruling was based on Rhode Island’s statutory definition of healthcare provider. The Court held that this definition excludes labs because they do not treat patients and have a separate licensing system. In the case at hand, the Court’s ruling enabled the plaintiffs to toll the statute of limitations by invoking the broad undiscoverability exception not available in suits for medical malpractice.

Doctrinally, this precedent exposes labs to an increased prospect of tort liability, but I doubt that it will affect lab prices. The lab industry follows established protocols that minimize errors. Compliance with those protocols indicates adequate care that virtually guarantees the lab an immunity against suit. Also: the vast majority of lab errors result from mistakes made by clinicians and hospital administration. See here.

On the “Similar Specialty” Requirement and the Exceptions Thereto

April 24, 2014

Torres v. Carrese, — A.3d —, 2014 WL 1464334 (Conn.App. 2014)

The plaintiff sued her obstetricians/gynecologists for negligent removal of her placenta following a C-section. The placenta invaded the wall of the plaintiff’s bladder causing substantial bleeding and requiring a hysterectomy. The plaintiff claimed that the defendants were unprepared for the required procedure and carried it out without adequate care. As a result, she sustained damage to her bladder and uterus and became incontinent. The defendants moved to dismiss the suit because it was not accompanied by an opinion from a “similar health care provider,” as required under Connecticut statute, Gen. Stat. § 52–190a (a). Specifically, they argued that the suit was accompanied by an expert opinion from a urologist, as opposed to a board certified ob-gyn.  See Bennett v. New Milford Hospital, 12 A.3d 865 (Conn. 2011) (holding that a written opinion letter pursuant to § 52–190a must be from a “similar health care provider,” as defined in § 52–184c, and that an insufficient written opinion letter requires dismissal of action).

The plaintiff relied on the exception to the “similar health care provider” requirement, Gen. Stat § 52–184c (c).  Under this exception, where “the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.” The plaintiff argued in this connection that the treatment she received from the defendants was urological.

The appellate court rejected the plaintiff’s argument. The court explained that, although a substantial part of the plaintiff’s alleged damage was urological, this damage occurred when one of the defendants, an ob-gyn, “was performing a hysterectomy, an obstetric-gynecological procedure, because of the plaintiff’s condition of placenta percreta, an obstetric condition.” The applicability of the Gen. Stat § 52–184c (c) exception – held the court – is determined strictly by the nature of the procedure carried out by the defendant.

Medical Malpractice or General Negligence? A Redux

April 20, 2014

Dawkins v. Union Hospital District, — S.E.2d —, 2014 WL 1386880 (S.C. 2014)

Whether a tort action sounds in “medical malpractice,” as opposed to “general negligence,” or vice versa, is often critical. Medical malpractice actions must satisfy special requirements that include shortened limitations periods, statutes of repose, expert affidavits, and merit certificates. Suits sounding in ordinary negligence need not satisfy those requirements. Filing and prosecuting those suits is therefore not as onerous and expensive as filing and prosecuting medical malpractice actions.

In Dawkins v. Union Hospital District, — S.E.2d —, 2014 WL 1386880 (S.C. 2014), a hospital emergency room admitted a patient complaining about instability and possible stroke symptoms. Prior to receiving treatment, the patient attempted to use the restroom and fell, fracturing her right foot. In the ensuing malpractice suit, the patient claimed that the hospital was negligent in “failing to keep a watchful eye on a person who had originally complained of dizziness, headaches and instability.” The hospital moved to dismiss the suit due to the patient’s failure to file an expert affidavit and “notice of intent,” in violation of S.C. Code Ann. § 15–79–125(A) (Supp. 2012) – a statute providing that “Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness.” The patient argued that this special filing was not required because her suit sounded in premises liability and not in medical malpractice. Specifically, she claimed that she was the hospital’s business invitee and that the hospital owed her a duty to guard against premises hazards. The trial court agreed with the hospital and dismissed the patient’s suit. The appellate court affirmed that decision.

The South Carolina Supreme Court reversed. The Court observed that “the distinction between medical malpractice and negligence claims is subtle” and that “there is no rigid analytical line separating the two causes of action” (citing Estate of French v. Stratford House, 333 S.W.3d 546, 555-56 (Tenn. 2011)). The Court also underscored that, although adjudication of medical malpractice actions generally requires medical expert testimony, “not every injury sustained by a patient in a hospital results from medical malpractice or requires expert testimony to establish the claim.” Examples of actions falling into the latter “general negligence” category are abundant. According to the Court, they include cases involving injuries caused by “falling ceiling tiles or improperly maintained hallways or parking lots” or by “nonmedical, administrative, ministerial, or routine care” mistakes.

Based on these criteria, the Court categorized the patient’s complaint as general negligence because it “makes clear that she had not begun receiving medical care at the time of her injury, nor does it allege [that] the Hospital’s employees negligently administered medical care. Rather, the complaint states that [the patient’s] injury occurred when she attempted to use the restroom unsupervised, prior to receiving medical care.”

The Court’s decision is open to criticism. First, for patients already admitted to hospital, falling accidents are generally categorized as medical malpractice (Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011) (categorizing suit by a hospital patient who slipped on a wet floor while getting out of a bathtub as a “healthcare liability” claim); Littlepaige v. United States, 528 Fed.Appx. 289, 2013 WL 2501744 (4th Cir. 2013) (veteran patient’s FTCA claim against hospital alleging failure to follow dementia-related falls-precaution protocol categorized as sounding in medical malpractice under North Carolina law, which obligated patient to submit certification from a qualified medical expert)). For not-yet-admitted patients, the categorization can go both ways depending on the specifics of the negligence allegations against the hospital.

As in many other areas of tort law, here too, everything depends on the “untaken precautions” analysis (for seminal accounts of the “untaken precautions” approach, see Mark F. Grady, Untaken Precautions, 18 J. Legal Stud. 139 (1989); Mark F. Grady, A New Positive Economic Theory of Negligence, 92 Yale L.J. 799 (1982)). In the case at bar, no allegation was made that the restroom was unsafe for people’s use (e.g., that its floor was dangerously slippery). The alleged untaken precaution was the ER personnel’s failure to accompany the patient in the restroom. This failure could only constitute medical malpractice rather than ordinary negligence. The reason is simple: premises owners have no duty to accompany an adult person in a restroom. The patient’s claim that she ought to have been accompanied in the restroom was based on her medical condition, of which the ER personnel arguably should have been aware. If so, the fact that the patient hasn’t yet been admitted to ER was inconsequential. The extent to which hospitals are obligated to give medical attention to patients not yet admitted to ER depends on the applicable medical standards and the specifics of the “emergency room doctrine” in the given jurisdiction (see here).

The patient therefore had to submit the requisite expert affidavit and notice of intent. She could not use her “not admitted” status to categorize her suit as “premises liability” while complaining about the hospital’s failure to take precautions that only need to be taken for protecting patients in a certain medical condition. Importantly, not all individuals awaiting ER admission need to be accompanied in the restroom. To establish her entitlement to this special precaution, the patient could only rely on the applicable ER standards, as opposed to general premises liability. For further discussions of “medical malpractice vs. general negligence,” see hereherehereherehere, and here.

Mental Therapist’s Duty to Prevent Patient’s Crime

April 18, 2014

Connecticut Supreme Court in Greenwald v. Van Handel, — A.3d —, 2014 WL 1388181 (Conn. 2014)

A clinical social worker hears from his patient about the patient’s interest in child pornography, but does nothing to solve the problem. Later on, the police raids the patient’s house to find evidence that he illegally downloaded, viewed and possessed child pornography. The patient now faces criminal charges.

Can he sue the social worker for malpractice? Would a similar suit be available against a psychiatrist?

This issue came up before the Connecticut Supreme Court in Greenwald v. Van Handel, — A.3d —, 2014 WL 1388181 (Conn. 2014). The Court decided that harms originating from the patient’s criminal investigation, trial, conviction, and punishment are not actionable.  Holding mental therapists accountable for those harms—it explained—would violate public policy.

The Court backed this decision by three precedents from other jurisdictions: Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So.2d 953, 954–55 (Ala.1993) (precluding father’s tort action against soft drink company when son was killed tilting vending machine while attempting to steal drinks); Orzel v. Scott Drug Co., 537 N.W.2d 208 (Mich. 1995) (denying compensation to plaintiff who fraudulently obtained drugs from negligent pharmacy, owned by defendant, and developed addiction); Barker v. Kallash, 468 N.E.2d 39 (N.Y. 1984) (precluding action against gunpowder supplier for blast injuries that plaintiff sustained while constructing illegal pipe bomb). Based on these precedents, the Court held that the social worker owed no duty to the patient.

This decision strikes me as wrong. In each of the precedents cited by the Court, the plaintiff claimed to be entitled to precautions that could have made it safer for him to carry out his criminal activity. This claim obviously runs against public policy. In the case at bar, however, the plaintiff made no such claim. Instead, he argued that the defendant could prevent him from committing the crime by doing what he was professionally obligated to do as a clinical social worker. For that reason, the court’s resort to the principle “one’s criminal conduct cannot give him a cause of action” (ex dolo malo nor oritur actio) was misguided.

As suggested by Justice Eveleigh in his dissenting opinion, the plaintiff’s suit ought to have failed or partially succeeded on causation grounds. The law-enforcement actions he was subjected to responded to his criminal activities. Hence, if the plaintiff acted voluntarily, he may have been contributorily negligent (or 100% comparatively negligent). Alternatively, the plaintiff’s mental condition may have weakened his ability to curb his perverse desire for child pornography, in which case his comparative negligence would be less than 100%. The plaintiff therefore deserved a trial after showing that the defendant was professionally obligated to guard against his engagement in child pornography.

Implications of the NAF Fiasco for Nursing Home Agreements

April 6, 2014

Until recently, the National Arbitration Forum (NAF) was a designated arbitrator in thousands of nursing home agreements. When a nursing home resident complained about medical malpractice or other mistreatment, her complaint had to be arbitrated before NAF and according to NAF’s rules. If the resident or her successors were to sue the nursing home in court, the court would have to stay the proceeding and compel arbitration, as mandated by Section 2 of the Federal Arbitration Act (FAA) that deems written arbitration agreements “valid, irrevocable, and enforceable.”

Five years ago, things have changed dramatically. In July 2009, the Minnesota Attorney General filed a complaint against NAF and related entities, accusing them of violations of the Minnesota Prevention of Consumer Fraud Act. The complaint alleged that NAF held itself out to the public as an independent arbitration company, while at the same time working against consumers’ interests and that it “earns revenue when it convinces companies to place mandatory predispute arbitration agreements in their customer agreements and then to appoint the Forum to arbitrate any future disputes.” Shortly thereafter, the parties entered into a consent judgment under which NAF agreed that it would not administer, process, or participate in any consumer arbitration filed on or after July 24, 2009.

This judgment effectively annulled the arbitration clause in thousands of agreements between nursing homes and residents.

On a number of occasions, the nursing home claimed that the arbitration clause is still valid and that the parties are now obligated to substitute NAF by a different arbitral forum, pursuant to FAA, Section 5. This claim did not succeed. Courts have rejected it by applying the “ancillary/integral” distinction. Riley v. Extendicare Health Facilities, Inc., 826 N.W.2d 398 (Wis.App. 2012); Estate of Cooper v. Evangelical Lutheran Good Samaritan Soc., 2013 WL 4526274 (N.M.App. 2013); Miller v. GGNSC Atlanta, 746 S.E.2d 680 (Ga. App. 2013); Sunbridge Retirement Care Associates v. Smith, — S.E.2d —, 2014 WL 1227725 (Ga.App. 2014).

Specifically, the courts held that Section 5 only applies when “the agreement shows that the selection of a particular [arbitration] forum was merely an ‘ancillary logistical concern.’” Conversely, “If the selection of a particular forum is integral to the agreement, Section 5 does not apply, and the entire agreement is deemed impossible to enforce.” The nursing home agreements combined NAF’s designation as an arbitrator with a provision that the arbitration will follow the NAF’s Code of Procedure. Based on these two factors, the courts ruled that the choice of NAF was integral to the agreement. The aggrieved nursing home residents and their successors are now free to file their suits in court.

Medical Malpractice Decision of the Year: Florida Supreme Court voids the $1M cap on noneconomic damages for a patient’s wrongful death

March 14, 2014

McCall v. United States, — So.3d —, 2014 WL 959180 (Fla. 2014)

We are just in mid-March, but yesterday’s decision of the Florida Supreme Court, McCall v. United States, — So.3d —, 2014 WL 959180 (Fla. 2014), is – and will likely remain – the most important medical malpractice decision of 2014.

The case at bar presented a particularly egregious example of medical malpractice: a young woman died after delivering a healthy baby as a result of preventable loss of blood. This tragic event took place at an air-force base hospital. The victim’s survivors therefore filed their medical malpractice suit with a federal court pursuant to the Federal Tort Claims Act (FTCA). Under FTCA, the suit was governed by Florida law. Following bench trial, the United States District Court found the United States liable, but applied Florida’s $1,000,000 cap on wrongful-death noneconomic damages recoverable for medical malpractice. On appeal, the victim’s survivors challenged the cap’s constitutionality. The Eleventh Circuit affirmed the District Court’s decision, but certified questions of Florida constitutional law with regard to the cap.

The Florida Supreme Court rephrased the certified questions as follows:

Does the statutory cap on wrongful death noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?

Florida’s Equal Protection Clause mandates that “All natural persons, female and male alike, are equal before the law.” Hence, “everyone is entitled to stand before the law on equal terms with, to enjoy the same rights as belong to, and to bear the same burden as are imposed upon others in a like situation.” Caldwell v. Mann, 26 So.2d 788, 790 (Fla. 1946).

The challenged statute, Fla. Stat. § 766.118, provided that “The total noneconomic damages recoverable by all claimants from all practitioner defendants [in the event of wrongful death] shall not exceed $1 million in the aggregate.” The capped damages included pain, suffering, lost consortium, emotional distress and other noneconomic losses.

Based on its previous precedent, St. Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla. 2000), the Court ruled that the cap violates the Equal Protection Clause “because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants.” The Court explained that, under this cap, medical malpractice claimants “will not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims.” For example, in the case at bar, the noneconomic damages suffered by the victim’s parents were assessed at $1,500,000 and her surviving son’s noneconomic damage was determined to be $500,000. The cap reduced those damages by 50% for each claimant (from $2M to $1M in the aggregate). If the cap were to apply, each of the victim’s parents would have recovered $375,000 and her son would have received $250,000. Contrast this case with an identical scenario featuring a victim with no parents: under that scenario, the victim’s child would recover $500,000 rather than $250,000.

After finding this inequality, the Court went on to determine whether it can be justified by a compelling state interest. In that most important part of its decision, the Court has found no rational relationship between the cap and its stated purpose: “the alleged medical malpractice insurance crisis in Florida.” The Court ruled in that connection that the Task Force responsible for the cap’s enactment based its recommendations to the Legislature on fact-free speculations about “medical malpractice crisis” and the cap’s ability to resolve it. Based on amici briefs and important studies by Tom BakerNeil Vidmar and other leading scholars, the Court determined that there is no medical malpractice insurance crisis in Florida. Moreover, the Court used empirical data to project that, had there been such a crisis, it could not be alleviated by caps on noneconomic damages (for my argument that excessive medical liability should be fixed by narrowing the applicable liability rules rather than by capping damages, see here, at pp. 1253-57).

I predict that this important decision will soon be used to challenge similar caps that exist in other states. Whether those challenges will succeed is hard to tell at this point.

Merit Affidavits and the Poor

March 8, 2014

Traylor v. Gerratana, — A.3d —, 2014 WL 839165 (Conn.App. 2014)

Two days ago, the Appellate Court of Connecticut affirmed the dismissal of an indigent plaintiff’s action to void a statute requiring plaintiffs to support malpractice suits against medical professionals by an opinion letter from a similar healthcare provider. The plaintiff claimed that this statute, Conn. General Statutes § 52–190a, is unconstitutional insofar as it applies to indigent plaintiffs who cannot afford paying medical experts’ fees. The plaintiff filed this action against the State of Connecticut, a number of state legislators and courts, and the Connecticut Medical Insurance Company. He asked the court to grant him declaratory judgment, injunctive relief, and compensation.

The court dismissed the action due to the presence of the sovereign and legislative immunities and the plaintiff’s failure to show a violation of his constitutional entitlement. The Appellate Court affirmed that decision.

In most states, similar merit-affidavit requirements presented no constitutional problems. Arkansas, Oklahoma, and possibly Florida are exceptions. Expert testimony is a must in nearly every medical malpractice case: proof of malpractice and causation is virtually never possible without an expert. Asking plaintiffs to upfront their expenditure on that testimony doesn’t strike me as too onerous.

The merit-affidavit requirement does not worsen the dismal situation of indigent plaintiffs. There is no reason to believe that a plaintiff who cannot hire an expert ahead of trial would somehow become able to do so when his case goes to trial. At both points in time, he will depend on charity and litigation funding. The legal system should eliminate this dependency and the consequent denial of access to justice to the poor. Things are bad enough when the haves come out ahead most of the time. Allowing a malpractitioner to go scot free when the patient he injured is too poor to file a suit will make things much worse.

More about the “Emergency Room” Doctrine

March 7, 2014

Abdel–Samed v. Dailey, — S.E.2d —, 2014 WL 696525 (Ga. 2014)

Under Georgia statute, previously discussed here, allegations of medical malpractice “arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department” must show “gross negligence” and be proven by “clear and convincing evidence.” OCGA § 51–1–29.5(c). Failure to prove the defendant’s gross negligence by clear and convincing evidence should result in a dismissal of the plaintiff’s suit.

Abdel–Samed v. Dailey, — S.E.2d —, 2014 WL 696525 (Ga. 2014), is the statute’s most recent application by the Supreme Court of Georgia.

The plaintiff arrived at a hospital’s emergency room shortly after midnight after accidentally shooting paint thinner into his finger with a high pressure paint sprayer. His finger was examined by two doctors. The doctors decided that the plaintiff must be transferred to another facility for an urgent surgery that required a hand surgeon, but waited till the morning to implement this decision. According to the plaintiff, this delay resulted in amputation of the tip of his finger and reduced range of motion, as well as increased pain and sensitivity, in his finger and hand.

Based on this evidence, the Court held that the doctors’ omission may constitute gross negligence and that the case must go to trial.

The Apology Rule

March 7, 2014

Lawrence v. Mountainstar Healthcare, — P.3d —, 2014 WL 685594 (Utah App. 2014)

In this case, Utah’s Court of Appeals sharpened the distinction between two categories of doctors’ statements: (1) “we messed up” statements that acknowledge a complication or fault; and (2) statements expressing the doctor’s benevolence and apology for what happened to the patient. The Court held that fault statements are admissible as a party admission, whereas apology statements are privileged under Utah’s “apology rule”: Utah Code Ann. § 78B–3–422, Utah R. Evid. 409. The “apology rule” renders privileged care-providers’ statements that express “apology, sympathy, commiseration, condolence, or compassion; … and a general sense of benevolence”; or describe “the sequence of events relating to the unanticipated outcome of medical care.”

The Court carried out this analysis in connection with a patient’s malpractice suit against a hospital. The Court ruled that the patient was entitled to adduce the hospital’s “we messed up” statements that acknowledged its nurse’s negligence (but nevertheless dismissed the patient’s appeal).

This decision presents an interesting puzzle. Under Utah law, when a doctor approaches his patient’s spouse and says “I am sorry we messed up,” this sentence will be redacted into the privileged “I am sorry” and the unprivileged “We messed up.” This approach motivates doctors to formulate their apologies narrowly and never apologize spontaneously. But calculated apologies are not what the “apology rule” wanted to incentivize. Calculated apologies are lacking the genuine apologies’ virtue and benefit the patient and her family only when the doctor is insincere. This undesirable consequence is an example of what T.M. Scanlon calls “the teleological paradox” in his book What We Owe to Each Other (1998).

Merit Affidavits and Causation

February 28, 2014

Nield v. Pocatello Health Services, — P.3d —, 2014 WL 585944 (Idaho 2014)

Idaho is one of many states that require plaintiffs to accompany suits against doctors by expert affidavits. An affidavit must verify the plaintiff’s allegations about the doctor’s substandard treatment that caused him injury. The Idaho Supreme Court has recently applied this requirement in Nield v. Pocatello Health Services, — P.3d —, 2014 WL 585944 (Idaho 2014).

This case involved a plaintiff who filed a suit against medical center in which she complained about negligent wound care and unsanitary conditions that resulted in the amputation of her leg. An expert affidavit filed with that suit opined that the center’s negligence was responsible for the plaintiff’s injury. The plaintiff’s expert, however, failed to address alternative causes of the injury that the defendant and its expert claimed to be dominant. These causes included the plaintiff’s preexisting medical conditions.

The Idaho Supreme Court ruled that the affidavit nonetheless makes a prima facie case for the plaintiff. The Court observed that the plaintiff’s expert did not follow – and did not have to follow – the differential etiology method that involves “an analysis of all hypotheses that might explain the patient’s symptoms or mortality. After identifying all of the potential causes of symptoms, the expert then engages in a process of eliminating hypotheses in order to reach a conclusion as to the most likely cause.” The Court explained that when a plaintiff files an expert affidavit that relies on differential etiology, the trial court would be “justified in excluding the expert’s testimony if the expert fails to offer an explanation why an alternative cause is ruled out.” However, the Court clarified in this connection that “Differential diagnosis is merely an alternate means of establishing causation where there are several potential causes of symptoms and there is insufficient scientific basis to conclusively establish any one potential cause. Where a specific cause of a patient’s symptoms can be stated to a reasonable medical certainty, there is no place for this alternate means of establishing causation.”  Consequently, a plaintiff’s expert only needs to show that the defendant’s malpractice was among the potential causes of the injury. This showing, held the Court, should move the plaintiff’s case to the jury.

This decision is correct. The plaintiff’s expert fully verified her allegations of malpractice against the defendant. The expert could not conclusively verify the requisite causal nexus because of the plaintiff’s preexisting medical condition. This problem is systemic and well-known: patients with serious preexisting conditions are generally unable to causally associate their injuries to their doctors’ malpractice. Aware of this problem, courts across the nation have designed special rules that allow wronged patients to recover compensation even when they are unable to prove causation by a preponderance of the evidence. Those rules prevent malpractitioners from finding refuge in the causal indeterminacy of their victims’ injuries. Under those rules, differential etiology is one of several methods of proving causation. This method is optional and plaintiffs are free to use alternative methods.

The Idaho Supreme Court thus continued the nationwide policy of narrowing malpractitioners’ exits from liability. This policy interplays with the stringent procedural and evidentiary requirements that narrow doctors’ entry into liability for equally good reasons. See here. The expert’s affidavit, as I already mentioned, have satisfied these requirements.