ISSUE 1:10, October 2013-Recent Developments

October 31, 2013

Teamwork as Malpractice

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.

October 25, 2013

“Injury notice” needed for accrual of cause of action that starts the limitations period under FTCA

Amburgey v. United States— F.3d —, 2013 WL 5745866 (6th Cir. 2013)

Under FTCA, 28 U.S.C. § 2401(b), a person’s right to sue the government for tort damages expires within two years after the accrual of the cause of action. During this period, an aggrieved person must file a claim for damages with the appropriate agency. The Sixth Circuit has recently held that “accrual” incorporates “injury notice.”  That is, a plaintiff’s medical-malpractice claim accrues not only when she becomes actually or reasonably aware of her injury, but when she also knows or has a reason to suspect that this injury was caused by malpractice. The Court based that interpretation on United States v. Kubrick, 444 U.S. 111 (1979).

Based on that interpretation, the Court held that the plaintiff’s wrongful-death claim accrued only after she had received a coroner’s autopsy report indicating that her husband’s death may have resulted from medical malpractice. Beforehand, she justifiably believed a doctor who told her that her husband had died as a result of aspirating a blood clot associated with lung cancer.

October 25, 2013

Bifurcation of Expert Standards

Ward v. Ramsey, — A.3d —, 2013 WL 5716164 (Conn. App. 2013)

As I wrote previously, the “same specialty” requirement that became widespread in medical malpractice cases – see herehereherehere, and here – applies only to experts who testify about the physician’s duty of care and whether s/he breached it. Experts testifying about causation must satisfy a different set of requirements under the general law of evidence. Depending on jurisdiction, these requirements either align with Frye or with Daubert and are generally more flexible than the “same specialty” rule.

A few days ago, the Appellate Court of Connecticut has confirmed this understanding. In Ward v. Ramsey, — A.3d —, 2013 WL 5716164 (Conn. App. 2013), the defendant alleged that only a surgeon qualifies as an expert who can testify about a “surgical outcome” (bowel perforation that led to sepsis that led to multiorgan failure and death) and that a board certified gastroenterologist – eligible to testify about the alleged gastroenterological malpractice – cannot testify about causation.

The Court rejected the “causation specialty” argument and allowed the gastroenterologist to testify about causation after finding that he has the requisite medical knowledge.

October 22, 2013

Caveat Veterans: Limitations and Repose in Medical Malpractice Actions under FTCA

Augutis v. United States— F.3d —, 2013 WL 5553084 (7th Cir. 2013)

To be able to sue the government under the Federal Tort Claims Act (FTCA), an aggrieved person must first present his claim to the appropriate agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). When the agency fails to make a final disposition within six months, the claim is deemed denied and the person may sue the government in federal court. 28 U.S.C. § 2675(a). Alternatively, he may continue the process with the agency. If the agency ultimately denies the claim, he would have another six months to file a suit. 28 U.S.C. § 2401(b).
Augutis v. United States — F.3d —, 2013 WL 5553084 (7th Cir. 2013), features a medical patient that did exactly this. Alas, when he sued the government for medical malpractice, allegedly committed by his doctors at the Veterans Affairs Hospital in Illinois, it was too late. His suit was blocked by the Illinois statute of repose (735 ILCS 5/13–212(a)) that nullifies an aggrieved patient’s right to sue his doctor within four years of the date of the alleged malpractice. The patient argued that this statute was preempted by the abovementioned provisions of FTCA, but the Seventh Circuit disagreed.

Here is why:

Unlike statutes of limitations that bar suit as a matter of procedure, statutes of repose are substantive in nature. As the Court explained, a repose statute “extinguishes any right to bring any type of cause of action against a party, regardless of whether such action has accrued.” Under FTCA, “The United States shall be liable … in the same manner and to the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The jurisdictional grant to hold the government liable for tort damages thus “only covers ‘circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’” (quoting Morisch v. United States, 653 F.3d 522, 530 (7th Cir. 2011)). Hence, FTCA “does not expressly preempt state statutes of repose … to the contrary, it expressly incorporates [them].”  FTCA only sets aside limitations statutes conflicting with 28 U.S.C. §§ 2401(b), 2675(a).

The patient also argued that the administrative claim he filed with the Veterans Affairs Department was a timely action against the government, but the Court again disagreed. The Court explained that a person can avoid the statute of repose only when she files her suit in a court and not with a federal agency.

The complex relationship between FTCA and state medical malpractice laws sets several traps for the unwary. For another recent example of a patient who fell into one of those traps, see Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013). Hopefully, an article I am presently working on will untangle this complexity.

October 21, 2013

Ohio Supreme Court grants state-employee immunity against malpractice suits to physicians affiliated to state university medical schools

Ries v. Ohio State University Medical Center— N.E.2d —, 2013 WL 5647636 (Ohio 2013)

The Ohio Supreme Court held that that a physician who treats a patient within the scope of his employment as a faculty member at OSU Medical School has a state-employee immunity from personal liability for medical malpractice. As a result, the aggrieved patient can only sue the state of Ohio in the special Court of Claims, where the state’s liability for the physician’s malpractice will be determined in a bench trial.

October 21, 2013

Medical Malpractice and Wrongful Death under Maryland’s Statutes of Limitations and Repose

Mummert v. Alizadeh— A.3d —, 2013 WL 5663105 (Md. 2013)

On October 18, Maryland’s Court of Appeals has delivered a precedential ruling on the applicability of the state’s limitation and repose statutes to suits for wrongful death that allegedly resulted from medical malpractice.

This ruling dealt with the following set of facts:

A family doctor failed to address his patient’s cancer symptoms between 1997 and 2004. In 2004, the patient was diagnosed with cancer that could not be treated successfully. The patient died of cancer on March 14, 2008. On March 8, 2011, her surviving family members filed a wrongful death action against the doctor, who claimed in response that the action was time-barred. The doctor relied on the 3-year limitations period set for wrongful death actions generally and on Maryland’s Health Care Malpractice Claims Act that sets two alternative expiration dates for suits against physicians: “(1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.” (§ 5–109 of the Courts and Judicial Proceedings Article of the Maryland Code).

The Court dismissed both defenses and allowed the plaintiffs to proceed with their suit.


The Court properly ruled that the wrongful death action—that amasses all death-related damages—had not expired because it was filed six days prior to the end of the 3-year limitations period. The doctor argued that this ruling was precluded by the language of Maryland’s wrongful death statute that requires that a “wrongful act” be one “which would have entitled the party injured to maintain an action and recover damages if death had not ensued.” Based on this language, the doctor claimed that, in order to allow the decedent’s survivors to sue him, the decedent must have had a legally viable suit against him at the time of her death. Because the decedent’s right to sue the doctor had expired prior to her death, the doctor claimed that the survivors’ right to sue him had expired as well.

The Court rejected this interpretation of the wrongful death statute because of its absurdity. Prior to a tort victim’s death, neither she nor her survivors accrue a death-related cause of action against the tortfeasor. For that reason, the victim’s passing away marks the beginning of the limitations period (her pre-death injuries, on the other hand, may not be actionable due to their statutory expiration).

The Court dismissed the doctor’s first claim for other reasons as well, but I see no need to discuss those reasons.


This claim strikes me as absolutely correct, as far as the statutory repose provision (Courts and Judicial Proceedings Article § 5–109 (1)) is concerned. This provision extinguishes a patient’s right to sue her doctor upon expiration of a five year period following the alleged malpractice. In the case at bar, the doctor’s negligent misdiagnosis of the decedent ended in 2004. Hence, after 2009, the doctor could no longer be sued in connection with that misdiagnosis.

The Court, however, decided that the repose statute does not bar the plaintiffs’ wrongful death action because it refers to suits for “injury,” as opposed to “death.” According to the Court, medical malpractice that kills the patient is not subject to repose.

This part of the Court’s decision strikes me as unpersuasive, if not patently wrong. Courts across the nation are split over what the word “injury” means in the limitations and repose context. Some courts interpret this word as injury as a matter of fact, which makes it different from “death” (especially when the statute uses the “injury or death” terminology). Other courts, however, take it to stand for “legal injury” or “wrongdoing.” See, e.g., Rathje v. Mercy Hospital, 745 N.W.2d 443 (Iowa 2008) (discussing the abovementioned split). Maryland’s statute of repose sets the repose period at “five years of the time the injury was committed.” As a matter of ordinary language, a person cannot commit injury, nor can s/he commit a wrongful death. There is therefore every reason to believe that the statute’s drafters had in mind the legal, as opposed to factual, meaning of “injury.” If so, then “legal injury” clearly encompasses wrongful death. The Court therefore should have accepted the doctor’s second claim.

October 8, 2013

Georgia tightens up the “same specialty” requirement for expert witnesses

Hankla v. Postell, — S.E.2d —, 2013 WL 5508611 (Ga. 2013)

The Georgia Supreme Court decided yesterday that a board-certified obstetrician and gynecologist who had handled over a thousand deliveries in her career and had experience performing obstetrical maneuvers to address shoulder dystocia is not eligible to testify as a defense expert witness that a certified nurse midwife had not breached the standard of care in her delivery of the plaintiff’s son. The Court reasoned that this expert had failed to satisfy the “same profession” requirement of OCGA § 24–7–702(c)(2)(C) or the “supervision” requirement of subparagraph (c)(2)(D).  The Court also mentioned in its decision that tort reform objectives require it “to construe the “same profession” requirement to apply to all proffered medical experts, even those experienced in the procedure at issue through active practice.”

October 7, 2013

Oregon takes a relaxed approach to experts’ eligibility to support medical malpractice suits

Trees v. Ordonez, — P.3d —, 2013 WL 5497249 (Or. 2013)

This case features a malpractice suit supported by an expert testimony from a biomechanical engineer closely familiar with use of the medical device – a Synthes plate – installed on plaintiff’s cervical spine by the defendant neurosurgeon. The expert was a distinguished university professor and researcher who acted as a scientific reviewer for a variety of academic publications, including the Spine journal, and lectured to doctors. He testified that the plate was not correctly installed as it had not been bent to follow the curvature of the plaintiff’s spine. This misalignment did not allow the screws to be fully seated in the plate and properly fasten it. The expert also testified that some of the screw heads protruded above the plate because it was too short.

The trial court decided that this testimony did not establish that the neurosurgeon failed to meet the standard of care in treating the plaintiff. This decision was upheld by the Court of Appeals that reasoned that the expert’s testimony had “failed to bridge the gap between the biomechanical construct of the plate and the methods with which they were intended to be installed and whether compliance with those same methods as a medical matter set the standard of care for [neurosurgeons].”

The Oregon Supreme Court disagreed. The Court held that Oregon law does not require medical malpractice suits to be supported by medical specialists. Any expert, it ruled, will be eligible to support a suit so long as she has the requisite knowledge and experience. The Court accompanied this ruling with an observation that “Even in jurisdictions that require a medical doctor to establish the standard of care, the rationale for that rule is grounded in the knowledge and experience of the expert.” Consistent with this view, the Court decided that the engineer’s testimony was “sufficient for [the] plaintiff to survive a motion for a directed verdict on the standard of care and breach of the standard of care” and reversed the directed verdict.

This decision is unsatisfactory. Medical malpractice has a very precise meaning in Oregon and all other states. A doctor commits malpractice when she deviates from her specialty’s standards of practice. To identify those standards and the defendant’s deviation therefrom as precisely as possible, courts need an insider to the specialty to testify as an expert witness. Other specialists might be able to do so as well, but there is no assurance that it will happen in every case or even in the majority of cases. Absent this assurance, doctors would not be able to rely on their internal standards of practice as a safe harbor that protects them against malpractice suits. They would consequently try to cover their bases and intensify their resort to defensive medicine. Contrary to the Court’s view, jurisdictions that require medical doctors to establish the standard of care do not try to select the most knowledgeable and experienced expert witness. Rather, they want courts to make liability findings that doctors can predict and avoid.
In the case at bar, the biomechanical engineer was certainly a good witness on the Synthes plates theory.  In practice, however, a Synthes plate may not always fully align with the patient’s spine. Whether this alignment was requisite and achievable is a question for a neurosurgeon or an orthopedic surgeon familiar with the practice of installing those plates. Only one of those specialists could properly identify the standards and protocols that doctors have adopted for this procedure. The Court of Appeals had it right.

October 4, 2013

Oregon’s Unfulfilled Tort Reform

Klutschkowski v. Oregon Medical Group, — P.3d —, 2013 WL 5377913 (Or. 2013)

Oregon has a statute capping noneconomic damages recoverable in medical malpractice suits at $500,000.

The Oregon Supreme Court decided that this cap is unconstitutional insofar as it clashes with a person’s right to recover full jury-assessed compensation for injuries recognized as actionable in 1857 when Oregon adopted its constitution. Specifically, it ruled that Article I, sections 10 and 17, of the Oregon Constitution entrench this right and deny the legislature the power to curtail it: see Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001), and Hughes v. PeaceHealth, 178 P.3d 225 (Or. 2008). This ruling separated the constitutionally protected pre-1857 causes of action, which the statutory cap cannot curtail, from the constitutionally unprotected causes of action that came into existence after 1857 and that can consequently be capped.

Consequently, in order to reduce a jury’s award of noneconomic damages to $500,000, the defendant must show that the plaintiff’s complaint was not actionable before 1857. To adjudicate such claims, courts must carry out an historical investigation into Oregon’s medical malpractice law.

The Court’s most recent decision on that issue, Klutschkowski v. Oregon Medical Group, — P.3d —, 2013 WL 5377913 (Or. 2013), made this task easy to perform. This decision reviewed a jury verdict obligating an obstetrician, who delivered the plaintiffs’ baby, to pay the plaintiffs (inter alia) $1,375,000 in noneconomic damages. The jury based this verdict on the following facts: the baby was too big to be delivered vaginally; the obstetrician therefore ought to have delivered the baby by a C-section; the vaginal delivery and the McRoberts maneuver carried out by the obstetrician caused the baby brachial plexus injury that impaired his use of one of the arms.

The obstetrician asked the trial court to cap the plaintiffs’ noneconomic award at $500,000. He claimed that the error the jurors found him responsible for was not actionable before 1857 and that babies born at that time also could not sue doctors responsible for their delivery. The Oregon Supreme Court disagreed: it held that it was enough for the plaintiffs to show that medical malpractice was recognized as a cause of action in the pre-constitution period. Because medical malpractice was generally actionable at that time, capping the jury’s $1,375,000 award at $500,000 would have been unconstitutional.

This decision makes Oregon’s cap ineffectual in the vast majority of medical malpractice cases. The cap provision will only apply in a small category of cases that involve violations of the patient’s right to give her informed consent to a noninvasive procedure or treatment. In the pre-constitution era, the right to informed consent did not extend to noninvasive treatments and procedures. Importantly, damages for informed-consent violations recoverable in cases in which the underlying procedure or treatment was invasive will not be capped. In those cases, an aggrieved patient can sue the doctor for assault, which she could also do before 1857. Assault has been actionable in torts since very early days.