Category Archives: Pennsylvania

Medical Malpractice Causation Revisited

January 17, 2014

Klein v. Aronchick, — A.3d —, 2014 WL 46648 (Pa. Super. 2014)

Evidence law requires the plaintiff to prove every element of her suit by a preponderance of the evidence. Under this requirement, an aggrieved patient will not succeed in her suit against the doctor unless she adduces persuasive evidence of causation. This evidence must demonstrate that it is more probable than not that the doctor’s malpractice caused the patient’s damage. Satisfying this requirement is difficult because doctors can virtually always blame the patient’s damage on her preexisting medical condition. This factor makes causation in a medical malpractice case an extremely complex issue. In the absence of special legal rules, this issue could present an insurmountable evidentiary obstacle for many wronged patients. Courts responded to this problem by relaxing the causation requirements for medical malpractice suits. They have developed what I call the “relaxed causation” doctrine: see Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1216-26 (2012). The doctrine’s idea is to close the exit from liability for negligent doctors: these doctors should not go scot free because of the patient’s preexisting condition that complicates the causation issue.

This doctrine was at play in a recent case Klein v. Aronchick, — A.3d —, 2014 WL 46648 (Pa. Super. 2014). This case involved a patient whose doctor treated her chronic constipation with Visicol. The doctor was the inventor and patent-holder of Visicol – a drug that was tested and approved as a preparation to cleanse the colon for a colonoscopy. The doctor’s prescription of Visicol for the patient’s treatment of chronic constipation thus was an off-label use. The patient developed a kidney disease, which she attributed to Visicol. Her expert testified that Visicol was contraindicated and that its prolonged use by the patient caused the disease. The doctor’s experts attributed he disease to the patient’s medical history that included bulimia, hypertension, and an extensive use of non-steroidal anti-inflammatory drugs (aspirin, ibuprofen, etc.). The jury found the doctor negligent but decided that the patient failed to prove causation and dismissed the suit.

Pennsylvania’s governing precedent on relaxed causation, Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978), holds that jurors can (but do not have to) deem causation established whenever they find that the negligent doctor substantially increased the patient’s risk of illness or injury. Another decision, Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990), indicated that the “increased risk” theory of recovery will only be available to an aggrieved patient who has no sustainable claim of direct causation because of her preexisting condition. Direct causation and “increased risk” thus came to be understood as mutually exclusive theories of recovery. Based on that understanding, the trial judge declined to give the jurors the “increased risk” instruction.

The appellate court, however, has decided that the trial judge was wrong. The court held that an aggrieved patient with a preexisting condition is entitled to both instructions. Put differently, the patient can try to prove causation directly, and if she fails, she could still prove it under the “increased risk” theory.

This is an important and correct decision. For various policy reasons, articulated in the above-cited article, courts should narrow doctors’ entry into “negligence” but a negligent doctor’s exit from liability should be narrow as well. Courts across the United States follow this policy with remarkable and commendable unanimity.

Medical Publications as Evidence

January 17, 2014

Klein v. Aronchick, — A.3d —, 2014 WL 46648 (Pa. Super. 2014)

This important causation decision, analyzed separately in this Journal, features a defense expert who testified about the truth of the scientific conclusions that appeared in certain medical treatises. The expert also bolstered his testimony by referring to the New England Journal of Medicine as “probably the world’s most prestigious medical journal,” “the final word on most things,” and “proven good science.” He further testified that “If you published there you made the big time. All the important authors, and professors, and doctors want to get published in the New England Journal” and that “You can’t get an article in the New England Journal unless it’s topnotch and your colleagues believe it’s state-of-the-art and it’s proven good science.”

The trial court admitted this testimony over the plaintiff’s objection. However, the appellate court agreed with the plaintiffs, who complained that the testimony was an implicit invitation to the jury to view the publications’ substance as true. The court decided that the expert “was clearly bolstering, attempting to use medical articles published in the New England Journal to increase the credibility of his own opinion in the minds of the jury.” This finding was among the court’s reasons to reverse and remand the case for a new trial.

I can see nothing wrong in what the trial judge did here, assuming that the publications were only “read into evidence but not received as an exhibit.” See Fed. R. Evid. 803(18), and I can’t believe that Pennsylvania has a law that differs from this rule.

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.