ISSUE 1:12, December 2013-Recent Developments

December 22, 2013

Records of Treating Physicians as Evidence of Causation in a Medical Malpractice Suit

Milliun v. New Milford Hospital, — A.3d —, 2013 WL 6670720 (Conn. 2013)

This very recent and important decision of the Connecticut Supreme Court looked into the following questions:

1. Can a patient use records compiled by her treating physicians as a causation evidence in a medical malpractice suit against her previous doctor?

2. Can a patient compel those physicians to testify as causation experts in the abovementioned suit?

These questions arose under the following set of facts:

A patient treated for a rare disabling neurological disorder, the “stiff man syndrome” or SMS for short, had an anoxic incident that severely impaired her cognitive functioning, speech, memory, and motor skills. She attributed that outcome to her doctors’ negligent monitoring of her condition and administration of a contraindicated medication. To establish the requisite causation, she offered into evidence medical records compiled by the Mayo Clinic doctors who started treating her after the anoxic incident. Those records verified the patient’s causation claim.

The Mayo Clinic’s doctors have refused to testify as experts, pursuant to the Clinic’s policy, but appeared at a deposition hearing. At that hearing, one of them testified that he relied on medical information indicating that while the patient was in the defendant’s care, “her rate of breathing was reduced to somewhere between one and four breaths per minute” and that upon his review of the relevant materials “he concluded that her cognitive deficits were caused by this anoxic event.” The doctors also used the differential etiology method—acceptable under Connecticut law—to rule out the patient’s SMS or some other neurodegenerative condition as a cause of her cognitive incapacitation, which left the anoxic incident as the only plausible cause of that incapacitation.

The Connecticut Supreme Court ruled that the records are admissible as evidence of causation because the defendant was able to cross-examine the Mayo Clinic’s doctors at the deposition hearing. This ruling made it unnecessary for the Court to decide whether these and similarly situated doctors can be subpoenaed to testify as experts on causation.

December 17, 2013

Uncertain Future for the Same-Specialty Law in Florida

Florida statute, § 766.102(12) (2012), lays down a strict same-specialty requirement for expert witnesses supporting medical malpractice allegations. Specifically, it provides that

“If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005.”

The Florida Bar Code and Rules of Evidence Committee recommended the Florida Supreme Court to adopt this statutory provision “as a rule of procedure to the extent that it is procedural.”

The Board of Governors (the governing body for the State University System) recommended the Court to reject the Committee’s proposal “on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.”

The Court declined to follow the Committee’s recommendation due to the concerns raised. See here. The Court had another good reason for declining to adopt this recommendation: the provision in question is substantive rather than procedural. See here.

December 10, 2013

(reposted from Bill of Health)

Anti-Abortion Practices at Catholic Hospitals as Medical Malpractice

The New York Times has recently reported about a suit filed by ACLU against the United States Conference of Catholic Bishops for requiring Catholic hospitals to avoid abortion “even when doing so places a woman’s health or life at risk.” The suit unfolds a disturbing story about an 18-week pregnant woman who rushed to the Mercy Health Partners in Muskegon, Michigan – the only one in her county – after breaking water. According to the suit, the plaintiff’s pregnancy was not viable but posed significant risks to her health. Instead of inducing labor or surgically removing the fetus to reduce the plaintiff’s chances of infection, the doctors at Mercy Health sent her home. The doctors also did not tell the plaintiff that her pregnancy is not viable and that it poses risk to her health. The plaintiff returned to the hospital next morning and was sent home again (!!) despite her bleeding and pain. On her third visit to the hospital – with severe pain and fever – the plaintiff miscarried and her fetus died shortly thereafter.
Described by the NYT as opening “a new front in the clash over religious rights and medical care,” the suit was filed in federal court in Michigan.

Michigan law, however, does not offer the plaintiff much because:

(1) reportedly, she sustained no permanent injuries (and her luck as a patient is also her doctors’ luck);

(2) her avoidable pain and suffering did not last for long and do not appear to be extreme.

(3) she will have hard time proving that a timely referral to another hospital would have minimized her pain and suffering;

(4) she cannot recover for lost chances to achieve a better medical outcome, as Michigan statute, Mich. Comp. Laws Ann. § 600.2912a(2), precludes such suits; and

(5) under Michigan’s “locality rule,” Mich. Comp. Laws Ann. § 600.2912a(1)(a), the plaintiff must take the rural hospital she went to for treatment as she finds it.

It seems therefore that the plaintiff’s best chance is to proceed on informed-consent-violation grounds and claim compensation for her emotional and dignitary harm, as well as punitive damages. Alas, the plaintiff would face obstacles proving her emotional harm that is also capped together with pain-and-suffering damages: presently, at $433,400. Mich. Comp. Laws Ann. § 600.1483, as adjusted to the consumer price index here. Also: a few states that recognize dignitary harm as actionable do not presently include Michigan.

As for punitive damages, winning them in a medical malpractice case is an uphill battle. But because this case is special, the plaintiff and ACLU will probably do well to wage this battle.

December 5, 2013

Pre-suit Notice in Maine

Frame v. Millinocket Regional Hospital, — A.3d —, 2013 WL 6237698 (Me.), 2013 ME 104 (Me. 2013)

Maine Health Security Act (MHSA) provides that, prior to filing a malpractice suit against any healthcare provider, a plaintiff must send a sworn notice of claim to each defendant and to the pre-litigation screening panel. 24 M.R.S. §§ 2903(1)(A), 2852(2) (2012). Doing so tolls Maine’s three-year limitations period for malpractice suits under 24 M.R.S. § 2902 (2012) for 90 days.

In the case at bar, the plaintiff submitted an unsworn notice of claim that the court below properly dismissed. Meanwhile, the statute of limitations has run its course. The plaintiff argued before the Maine Supreme Court that her unsworn notice of claim tolled the statute of limitations, but the Court disagreed. The Court explained that the oath requirement is far from being a technicality: its purpose is to fend off malpractice suits that are unsubstantiated or downright false. An unsworn notice of claim thus cannot properly open the proceedings against the defendant.

Luckily for the plaintiff, the Court nonetheless permitted her to amend the defective notice of claim by having it sworn to and having the amendment relate back to the original filing date. The Court based this decision on the Maine rules of civil procedure that give courts the general power to promote fairness. It also relied on the United States Supreme Court decision, Edelman v. Lynchburg College, 535 U.S. 106, 108-09, 118 (2002), that allowed a claimant who filed a charge “to verify it outside the statute of limitations and have it relate back to the filing date of the original, defective charge.” Specifically, the Court decided that the plaintiff’s procedural mistake was relatively minor and that barring her suit against the defendant would therefore be harsh and unfair.