October 31, 2013
Grove v. Peace Health St. Joseph Hospital, — P.3d —, 2013 WL 5786888 (Wash.App. Div. 1 2013)
A team of doctors employed by the same hospital had failed to properly monitor a patient after his heart surgery in order to rule out a well-known neurological complication. The patient subsequently developed an irreversible neurological disorder, and a suit ensued.
The patient’s expert identified the team’s omission as malpractice. However, he was unable to attribute the omission to any specific member of the doctors’ team. Under the common law doctrine of vicarious liability, because the omission could be attributed to the team as a whole, the patient could still win his suit against the hospital. This doctrine holds that a hospital employing a team of doctors assumes vicarious liability for the team’s malpractice even when there is no way to single out the defaulting team member.
Washington’s appellate court, however, has decided that this doctrine was inapplicable because medical malpractice is a statutory, rather than common law, tort under Washington law. Washington’s statute defines medical malpractice as a physician’s failure “to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances.” According to the Court, this provision requires an aggrieved patient to produce expert testimony that identifies an individual physician’s malpractice as a cause of her injury. In the case at bar, the patient “did not present evidence that but for any one of those particular individuals’ failure to adhere to the standard of care, he would not have been injured.” For that reason, the Court held that the patient “failed to prove proximate cause” and affirmed the lower court’s JNOV in the hospital’s favor.
The Court’s reasoning is perplexing. First, it is not clear to me why it chose to describe the “hole” in the patient’s case as a failure to prove “proximate cause.” What the patient failed to prove was the tortfeasor’s individual identity, rather than proximate cause. Second and most important, why care which doctor was individually responsible for the failure to properly monitor the patient, given that the entire team of doctors—that included the doctor/s who made the mistake—worked for the hospital? In short, I do not see the connection between Washington’s definition of “medical malpractice” and the Court’s insistence on individualized evidence of wrongdoing.
Intentionally or not, the Court’s decision has created a normatively indefensible gap between malpractice by commission and malpractice by omission. In a case in which the alleged teamwork error occurs during surgery and thus constitutes an active or “affirmative” misconduct, the patient’s suit against the hospital would be allowed to proceed on the res ipsa loquitur theory (see, e.g., States v. Lourdes Hospital, 792 N.E.2d 151 (N.Y. 2003)). The res ipsa presumption allows a plaintiff to move her case to the jury without adducing individualized evidence of malpractice. In Grove, the patient could not take advantage of the res ipsa presumption (generally applicable under Washington law: see Ripley v. Lanzer, 215 P.3d 1020 (Wash.App. Div. 1 2009)) because what he complained about was an omission: his doctors’ failure to properly monitor his condition. Courts, however, have no good reason for being more meticulous with doctors’ omissions.
Under current Washington law, a patient injured by his doctors’ teamwork will do well to explore two alternative ways of suing the hospital:
A. Corporate negligence. The hospital might be directly liable for failing to establish a protocol with an appropriate checklist for doctors’ post-surgical monitoring of patients.
B. Spoliation. The hospital might be accountable for missing and non-compiled records documenting the work done by each individual member of the doctors’ team. Absence of the required records is a reason for shifting the burden of proof to the hospital. The hospital would then have to prove that none of its doctors acted negligently toward the patient.