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Blog Rules

I created this blog to establish open communication with and between the Journal’s readers. Feel free to comment on my and other readers’ postings. If interested to post an independent or longer commentary, please e-mail it to medmal@professoralexstein.com. Readers’ posts will not be edited, but they should be limited to the blog’s subject-matter: the law of medical malpractice.  

I look forward to seeing and responding to your posts and comments. 

A.S.

Governmental immunity for EMTs

July 1, 2013

Applewhite v. Accuhealth, Inc.— N.E.2d —, 2013 WL 3185185 (N.Y. 2013)

According to the New York Court of Appeals’ decision of last week, governmental immunity is a starting point for any inquiry into EMTs’ liability for malpractice. The Court based this immunity on the famous “duty to all is duty to none” principle: in providing a vital emergency service to public in general, EMTs function in a governmental capacity and owe no duty to any specific individual. The Court explained that EMTs differ from the regular providers of medical care—doctors and nurses, who are subject to stringent licensing requirements and must have extensive educational and training credentials—in that they provide only emergency medical stabilization in Basic (as opposed to Advanced) Life Support ambulances. EMTs are also funded and remunerated differently from doctors and nurses: they operate on a limited municipal budget that depends on the taxpayers’ money and cannot afford malpractice payouts. Dilution of the EMTs’ budget might limit the municipal emergency response systems to mere transport service—a consequence that society can ill-afford.

For these reasons, the Court held that EMTs will be protected by the governmental immunity against liability for negligent omissions and misfeasance. As with the governmental immunity generally, EMTs (i.e., the municipality) might still assume liability for negligence when they have a “special relationship” with the victim. The “special relationship” exception, according to the Court, requires the presence of four conditions: (1) EMTs’ assumption of an affirmative duty to act on behalf of the victim; (2) EMTs’ knowledge that inaction could lead to harm; (3) direct contact between the EMTs and the victim; and (4) the victim’s reliance on the EMTs’ affirmative undertaking.

However appropriate they may be for other governmental agencies, these conditions become rather broad when it comes to EMTs. Under these conditions, EMTs will virtually always expose themselves to liability when they start treating the person in distress. This is exactly what happened in the case decided by the Court. After finding that the plaintiff’s mother asked the EMTs to promptly drive her daughter—who experienced a cardiac arrest—to a nearby hospital, instead of treating her at the scene, the Court held that the exception to the governmental immunity might apply and that the EMTs are consequently not entitled to a summary judgment in their favor. For that reason, as Judge Abdus-Salaam aptly remarked in her concurrence, the Court could do better by limiting the immunity to the dispatch of the ambulance by the 911 operator and by refusing to extend the immunity to EMTs’ care and treatment of the person in distress.

The Court seems to have missed the following insight, well-established in law & economics: chilling effects are best prevented by “safe harbor” rules. From an economic standpoint, the Court should either have given EMTs an unqualified immunity or adopted the distinction drawn by Judge Abdus-Salaam, while limiting EMTs liability to “willful and wanton” inflictions of harm (as under Texas Civil Practice & Remedies Code, Section 74.153, that for some inexplicable reason covers only hospital-based providers of emergency care: see here).

The Court’s decision therefore strikes me as rather unfortunate: it motivates EMTs to work defensively and opens the courts’ doors to an inflow of expensive litigation that will have no beneficial effects on primary behavior.

 

A.S.

 

The Tylenol Debate: Can Hospitals be Sued for Excessive Markups on Medications and Devices?

Steven Brill’s Time Magazine blockbuster article, Bitter Pill: Why Medical Bills are Killing Us, uncovers the CHARGEMASTER: a publicly undisclosed pricelist accountable for what we see in hospital bills. What we see there doesn’t look good: it includes acetaminophen sold for $1.50 a tablet (you can buy 100 of those for the same price at Amazon); $77 for a box of sterile gauze pads (Amazon’s prices vary between $6 and $11); $18 for a single diabetes test strip (sold for 54 cents by Amazon); $108 for antibacterial Bacitracin ointment (Amazon’s prices vary between $2.50 and $6.50); and so forth. Charges for stay, scans, surgeries, canes, and wheelchairs skyrocket as well.

The American Hospitals Association (AHA) rejects Brill’s analysis. According to AHA, the chargemaster aggregates the hospital’s overall costs on delivering quality care to patients: “In order to take medications in a hospital, even over-the-counter medicines, they must be prescribed by a doctor (a little bit of cost for the doctor), that order gets transmitted to the pharmacy (a little more cost), the order gets filled by a pharmacist or pharmacy tech who retrieves just one Tylenol pill and individually packages that one pill (still more cost), the pill gets transported from the pharmacy to the nursing unit where the patient resides (a little more cost), then the pill is retrieved by a registered nurse who personally gives the pill to the patient and then must document the administration of that pill in the patient medication administration record (a little more cost). All of this process to give a patient a single dose of Tylenol in a hospital bed [must also be] in compliance with all pertaining regulations (a little more cost).”

This post will not try to resolve the Tylenol Debate. Nor will it say anything about the government as a plausible substitute for the eccentric chargemaster.  Instead, I will raise a legal question: Can patients sue hospitals for excessive markups on medications and devices?

My answer to this question is a qualified YES. Entrepreneurial and business aspects of running a hospital fall under states’ consumer protection laws (Brookins v. Mote, 292 P.3d 347 (Mont. 2012)). Those aspects certainly include billing (Jaramillo v. Morris, 750 P.2d 1301, 1304 (Wash. App. 1988); Ambach v. French, 216 P.3d 405 (Wash. 2009)). The key question here is whether an excessive markup on medications and devices amounts to deceit or an unfair trade practice. If it does, the hospital would be in violation of the relevant state consumer protection law. This might happen to hospitals whose billing practices—to which patients gave no informed consent—are particularly aggressive. Those hospitals might face class action suits and the prospect of paying treble damages. They also may be stripped of the special protections given to defendants in medical malpractice suits (that include shortened limitations and repose periods for filing suits, caps on damages, and charitable immunities). For my account of the competition between medical malpractice and consumer protection rules, click here.

Brill and other participants in the Tylenol Debate call on the government to start regulating hospital prices. My short advice to hospitals: get rid of unconscionable markups forthwith.

A.S.   

Third party negligence in medical malpractice cases: the quiet demise of res inter alios acta

July 6, 2013

Martinez ex rel. Fielding v. The John Hopkins Hosp., — A.3d —, 2013 WL 3337277 (Md. App. 2013)

Hospitals and doctors must take patients as they come. The patient’s condition at checking-in is the baseline for evaluating the propriety of the treatment she subsequently receives from her doctors. Prior negligence that brought about this condition – be it the patient’s or a third party’s negligence – is immaterial. Courts usually exclude evidence of such prior negligence under the “res inter alios acta” rule or under the general relevancy standard. See my discussion of this rule here, on pages 1223-24.

But things are not always that simple. There are cases in which prior third-party negligence is relevant and admissible for both malpractice and causation purposes. Martinez was one of those cases. There, a minor plaintiff, Enzo Martinez, sued the Johns Hopkins Hospital for alleged failure to perform a timely Caesarean section at his birth. This failure, claimed Martinez, was negligent and resulted in his cerebral palsy, retardation, and other disorders.

The hospital responded by claiming that Martinez’s mother had chosen to deliver him at home, with the assistance of a registered nurse midwife and a doula. This delivery didn’t go well, and when Martinez’s mother checked into the hospital, she already experienced serious complications. The hospital alleged that its doctors and staff did everything they could to resolve those complications, but did not succeed. According to the hospital, the midwife’s negligence was solely responsible for the plaintiff’s tragedy.

To prove this “third party negligence” defense, the hospital called in evidence from which the jury could learn about the specifics of the unsuccessful home birth delivery. This evidence aimed to show the jury that the midwife managed the delivery negligently. Pursuant to Martinez’s objection, the trial judge ruled that this evidence was inadmissible.

The Maryland Court of Appeals overturned that decision. The court reasoned that the evidence suppressed by the trial judge was potentially probative in two respects: (1) it could help the hospital show the jury that its staff treated the plaintiff’s mother properly, given the nature and origin of her complications; (2) it could causally disassociate the hospital and its staff from the plaintiff’s ailments by showing that they could not be prevented, given his mother’s condition at checking in and the circumstances of the failed home birth delivery. Hence, the evidence was admissible and its suppression constituted a reversible error.

This decision is unquestionably correct. It is also a well reasoned decision that references precedents from other state courts. Defendants will certainly use this decision as a handy citation.

A New Trend? Hospital Successfully Sues its Patient’s Attorneys for Filing a Vexatious Malpractice Suit

July 10, 2013

Charlotte Hungerford Hospital v. Creed — A.3d —, 2013 WL 3378824 (Conn. App. 2013)

Connecticut’s Appellate Court ruled in yesterday’s decision that hospitals and doctors can successfully sue their patients’ attorneys for filing a vexatious malpractice suit. The Court also ruled that the trial judge’s decision that the patient’s suit was vexatious will often create an estoppel against the attorney. The attorney will consequently be precluded from contesting that decision. The only issue will then be the amount of damages—double or treble—that the attorney and her firm will be obligated to pay the hospital or the doctor.

Whether this is going to be a trend in our medical malpractice law remains to be seen. In the meantime, I provide the details of that important decision.

Attorneys representing the family of a psychiatric patient, who committed suicide, filed a malpractice suit against a hospital and some of its doctors. They alleged that the defendants prematurely discharged the patient from the hospital’s emergency room while she was still experiencing a severe mental health crisis. Allegedly, this untreated crisis was the cause of the suicide that the patient committed four days later.

The suit was supported by an opinion letter from a registered nurse (!!). Under Connecticut law, as in many other states, the supporting opinion letter must come from “a similar health care provider.” The attorneys thus should have retained a psychiatrist, rather than a nurse, as an expert supporting the suit. Their failure to do so rendered the suit defective and the trial judge properly struck it out.

The attorneys subsequently filed a second malpractice suit against the same defendants. This suit was accompanied by an opinion letter from a board certified psychiatrist, but it was filed after the expiration of the limitations period. The attorneys relied on a statutory extension given to plaintiffs whose first suit had been dismissed due to a “matter of form.” However, the trial court ruled that “The plaintiff’s lack of diligence [in the first action] can only be characterized as blatant and egregious conduct which was never intended to be condoned and sanctioned by the ‘matter of form’.” Pursuant to this ruling, the judge dismissed the second suit as time barred.

Encouraged by its immensely successful appearance as a defendant, the hospital decided to try its hand as a plaintiff. It sued the attorneys under the following provision of Connecticut law:

“Any person who commences and prosecutes any civil action or complaint against another, in his own name or the name of others … (1) without probable cause, shall pay such other person double damages, or (2) without probable cause, and with a malicious intent unjustly to vex and trouble such other person, shall pay him treble damages.”

In that suit, the hospital alleged that the malpractice actions it had to defend itself against were lacking “probable cause.” Moreover, the hospital claimed that the collateral estoppel rule precludes the attorneys from denying this allegation. The trial court’s decision on that claim triggered appeals from both parties.

The Appellate Court decided that a medical expert’s opinion letter “is not the end-all and be-all of the issue of probable cause to bring the first action.” This decision made it open for the attorneys to show that their first suit was not vexatious despite its problematic appearance. However, the Court also ruled that the attorneys were “legally barred from bringing the second action because of [their] blatant and egregious conduct in the first action.” According to the Court, the trial judge’s ruling that the second action had no “probable cause” did create an estoppel against the attorneys because they had been in control of their clients’ action (as explained in § 39 of 1 Restatement (Second), Judgments (1982)).

Utah Court of Appeals holds that a physician cannot testify about the post-operative standard of care required of nurses

July 11, 2013

De Adder v. Intermountain Healthcare, — P.3d —, 2013 WL 3475379 (Utah App. 2013)

The Utah Court of Appeals held that a physician cannot testify about the post-operative standard of care required of nurses attending a patient who received a CPM (continuous-passive-motion) therapy following knee replacement surgery. The Court reaffirmed the same-specialty requirement for malpractice experts and ruled that “an exception to the general rule that a physician cannot testify as an expert against another provider who has a different specialty” does not apply. For this exception to apply, explained the Court, “a medical expert witness brought in to testify [must be] knowledgeable about the applicable standard of care”; alternatively, his specialty’s standard of care must be “the same as the standard of care in the alleged negligent doctor’s specialty.” The plaintiff’s expert failed to show eligibility under this exception. His opinion was stricken out and the plaintiff’s suit was dismissed.

Georgia Supreme Court rules that physicians working at the Medical College of Georgia as state employees are entitled to the official immunity against tort actions

July 11, 2013

Shekhawat v. Jones, — S.E.2d —, 2013 WL 3475325 (Ga. 2013)

The Georgia Supreme Court ruled that physicians working at the Medical College of Georgia as state employees are entitled to the official immunity against tort actions. The effect of that immunity for the aggrieved patient, explained the Court, is that she “may still seek relief [on vicarious liability grounds] against the state government entity for which the state officer or employee was acting” (as under the parallel arrangement of the Federal Tort Claims Act). In the case at bar, parents of the infant allegedly mistreated by the physicians can only sue the Board of Regents of the University System of Georgia, as they did.

Proximate Cause in Georgia

July 17, 2013

Georgia Clinic v. Stout, — S.E.2d —, 2013 WL 3497703 (Ga. App. 2013)

This tragic case features an elderly patient with an arthritic knee. Her doctors injected that knee with medication drawn from a multi-dose vial. They did so at their clinic under non-sterile conditions that included poor infection controls, failure to maintain sterile field, and poor hand-washing facilities (the clinic had no sinks and alcohol hand cleaners in the examination rooms). As a result, the patient’s knee was infected with methicillin-sensitive staphylococcus aureus (“MSSA”). Four other patients of the same clinic were also infected with MSSA from the same multi-dose vial.

The patient developed excruciating pain in her knee and became depressed. The doctors treated her for the pain in the knee but neglected the depression. They failed to refer the patient to a psychiatrist. After a short period of time, the patient committed suicide by jumping from the window of her 14th floor apartment. She left behind a suicide note saying that she can’t take her pain anymore and prefers to die. The patient’s estate won the wrongful-death action against the doctors and was awarded, on top of compensatory damages, punitive damages in the amount of $250,000. This punitive-damage award was unquestionably correct. The defendants acted without malice and hence they did not deserve to pay a seven-digit-figure amount in punitive damages. At the same time, the defendants’ malpractice—which they were savvy enough not to contest—exhibited a profound want of care and indifference to consequences. Expectedly, therefore, the Court of Appeals affirmed the award.

Proximate cause was a more difficult part of the Court’s decision to affirm the verdict. Why would a general doctor or an arthritis specialist be in charge of her patient’s psychiatry as well? In technical terms of the Third Restatement of Torts, why would a patient’s psychiatric condition fall within the scope of the risk associated with a doctor’s delivery of a non-psychiatric treatment? To fall within the scope of that risk, the patient’s psychiatric problem must be part of the treating physician’s duty of care, as determined by her specialty.

The plaintiffs’ expert witness was a specialist in psychiatry and depression, not in general medicine or arthritis care. He testified that “the potential consequences of failing to treat depression are increased suffering, health complications, and suicide, and that chronic pain and lack of mobility can worsen depression symptoms.” The expert also attested that “the combination of [the patient’s] untreated depression, the severe pain caused by the infection in her knee, and her decreased mobility and independence amounted to a ‘perfect storm’ in contributing to [her] suicide.”

However persuasive it may be, this testimony could only establish cause-in-fact, not the proximate cause. To satisfy the proximate cause requirement, the plaintiffs had to call a different expert who could identify the scope of the risk for arthritis specialists and general doctors. That expert would have to attest that taking care of a patient’s depression symptoms is part and parcel of those physicians’ customary practices.  Proximate cause and duty of care are interconnected.

The Court of Appeals and the court below seem to have missed this pivotal point. The effect of that omission could be quite dramatic, given that many patients get depressed while being treated for pain and other ailments.

Would a patient’s referral to a psychiatrist now become part of the defensive medicine protocol of other doctors?

The Laches Defense not Available in Medical Malpractice Actions

July 29, 2013

Naccache v. Taylor, — A.3d —, 2013 WL 3820942 (D.C. 2013)

The DC Court of Appeals has ruled last week that the laches defense does not apply in actions for medical malpractice. The Court reasoned that laches is only available in equity proceedings but not in actions at law. For actions at law, held the Court, the applicable time bars are set by the statute of limitations. This statute, the Court explained, accounts for all relevant tradeoffs between plaintiffs’ and defendants’ interests. Hence, “To import laches as a defense to actions at law would [improperly] pit the legislative value judgment embodied in a statute of limitations … against the equitable determinations of individual judges.” In making this ruling, the Court also took notice of the fact that forty-eight states bar laches as a defense for actions at law.

This ruling appears impeccable, but it has a wrinkle.

Every statute of limitations has two components: the time bar and the tolling mechanism. The laches defense cannot shorten the statutory window for filing a suit: that would run against the legislature’s expressed intent. But there might be a room for integrating laches within the tolling mechanism. Conceptually, this mechanism is grounded in equity, similarly to the laches defense: see, e.g., Albright v. Keystone Rural Health Center, 320 F.Supp.2d 286 (M.D. Pa. 2004). Using laches to deny tolling therefore would not create the law-equity mismatch that the Court feared about. Substantively, by reviving a dated claim, tolling often creates a risk of injustice for defendants who face stale evidence of misconduct. Arguably, these defendants need to be protected by the laches defense. As the Supreme Court put it, “Statutes of limitation, like the equitable doctrine of laches … are designed to promote justice by preventing surprises through the revival of claims that have been allowed to slumber until evidence has been lost, memories have faded, and witnesses have disappeared.” Order of Railroad Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-49 (1944).

The case adjudicated by the DC Court of Appeals illustrates this point vividly. In that case, the Court dismissed an appeal from a $6.5 million malpractice judgment against an obstetrician. The obstetrician was sued by the plaintiff nearly twenty years after the alleged malpractice. The plaintiff filed the suit on behalf of her son who was entitled to toll the three-year limitations period due to his minorship and mental disability (DC ST. § 12-302(a)(1)&(2)). The plaintiff alleged that in the Spring of 1987, when she was pregnant with her son, the defendant failed to give her antibacterial medications following her urine tests that showed a significant level of bacteria: 2+ on a 4-point scale. As a result, she developed severe cramping, early contractions, and other complications. The plaintiff’s son was born prematurely while suffering from infection, seizures, oxygen deprivation, underdeveloped lungs, brain hemorrhaging, and brain damage. As a result, he developed cerebral palsy and retardation.

Expectedly, the key evidence in this case was the plaintiff’s medical records. Alas, several years before the trial began, the defendant’s clinic had shredded those dated records pursuant to DC’s document-retention guidelines. The only available records were the documents that the plaintiff’s attorneys received from the clinic back in 1990.  Critically, those documents presented a paradigmatic example of stale evidence. The lab report of the plaintiff’s urine culture that the defendant ordered in March 1987 was not among those documents. Absence of this report could improperly lead to the jurors’ inference that the defendant had never received and, consequently, never seen it (see Stephen A. Saltzburg, A Special Aspect of Relevance: Countering Negative Inferences Associated with the Absence of Evidence, 66 Cal. L. Rev. 1011 (1978)). For obvious reasons, this inference was devastating to the defendant’s case. The laches defense could have given the defendant full protection against this unwarranted inference, but as we just saw, the DC Court of Appeals ruled against this defense.

The Court reassures us that the trial judge “consistently protected [the defendant] before, during, and at the end of trial from any adverse inference that the lab report’s absence from the medical records could serve as a basis to conclude that [he] never saw it.”  This protection included the judge’s instructions to the plaintiff’s counsel and the jury. Specifically, the judge prohibited the plaintiff’s counsel from suggesting to the jury that the absence of the urine culture lab report supported the theory that the defendant never reviewed it.

This brings me to a 6.5 million dollar question: did this protection actually work?

Conflict of Laws and Consumer Protection in Medical Malpractice Litigation

August 7, 2013

Jones v. Clinch, — A.3d —, 2013 WL 3940814 (D.C. 2013)

The patient underwent an expensive eye surgery that proved to be ineffectual and sued her doctor for violation of DC’s Consumer Protection Procedures Act. The doctor argued that his dispute with the patient is governed by Maryland law that exempts doctors from its consumer protection laws.

The Court agreed with the doctor for the following reasons:

1. The place of the patient’s alleged injury was Maryland.

2. The consultation during which the patient decided to undergo eye surgery took place in the doctor’s Maryland office.

3. The patient resided in Virginia, but none of the activities relevant to her suit took place in that state.

4. The doctor’s clinic advertised its eye surgeries in DC, but this general advertisement was not as significant as the patient’s individual dealings with the doctor, all of which took place in Maryland.

The patient offered no evidence to show the doctor’s negligence nor was she able to prove an informed-consent violation. The District of Columbia Court of Appeals consequently affirmed the dismissal of her suit.

This decision is unquestionably correct.

However, the exemption from consumer protection laws that Maryland gives doctors is troubling. Leaving the financial side of the doctor/patient relationship unregulated is hardly a good idea. Under Maryland law, when a doctor induces his patient to undergo an expensive treatment instead of an equally effective but inexpensive one, the patient has no redress. The only meaningful protection the patient can count on is her health insurance that will refuse to authorize an unnecessarily expensive treatment. But what if the patient is uninsured?