ISSUE 1:11, November 2013–Recent Developments

November 27, 2013

Pre-Suit Notice Again: The Dangers of Noncompliance

Stevens v. Hickman Comm. Health Care Serv., — S.W.3d —, 2013 WL 6158000 (Tenn. 2013)

Tennessee statute, Tenn. Code Ann. § 29–26–121(a)(2)(E), requires a person initiating a medical malpractice suit to send prospective defendants a pre-suit notice authorizing them to obtain complete medical records from each other. The Supreme Court of Tennessee held that a plaintiff cannot obtain an excuse for failing to comply with that statute by asserting extraordinary cause. The Court also set the penalty for noncompliance: dismissal of the suit without prejudice. The Court declined to decide whether this dismissal would operate as a dismissal with prejudice when the statute of limitations runs its course (Cf. Putnam v. Morris, 833 F.2d 903, 904–05 (10th Cir.1987) ( “Dismissal for failure to serve within the time period is without prejudice. It may, however, operate as a dismissal with prejudice when the action will be time-barred.”).

November 24, 2013

Pre-suit notice and the statute of limitations

Salah v. St. Joseph Hospital of Orange, 2013 WL 6091605 (Cal.App. 4 Dist. 2013)

In order to file a suit for medical malpractice in a California court, the plaintiff must give the defendant “at least 90 days’ prior notice of the intention to commence the action” that “shall notify the defendant of the legal basis of the claim and the type of loss sustained, including with specificity the nature of the injuries suffered.” Code of Civ. Pro. Section 364 (a) & (b). The purpose of this prerequisite for filing a suit is to establish procedure that encourages the parties “to negotiate outside the structure and atmosphere of the formal litigation process.” Preferred Risk Mutual Ins. Co. v. Reiswig, 980 P.2d 895, 899 (Cal. 1999). For that reason, “If the notice is served within 90 days of the expiration of the applicable statute of limitations, the time for the commencement of the action shall be extended 90 days from the service of the notice.” Code of Civ. Pro. Section 364 (d).

The applicable statute of limitations, Code of Civ. Pro. Section 340.5, provides that “In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.” The three-year limitations period can be tolled in following cases: “(1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person.” Id.

In Salah v. St. Joseph Hospital of Orange, 2013 WL 6091605 (Cal.App. 4 Dist. 2013), the plaintiffs’ attorneys sent the defendant hospital a letter notifying it about their intent to sue the hospital for malpractice on the plaintiffs’ behalf and asking it not to contact the plaintiffs directly. This notice was forwarded to the hospital shortly before the expiration of the one-year limitations period. The plaintiffs subsequently used it to extend the limitations period, which in the meantime had expired, for 90 days, pursuant to Code of Civ. Pro. Section 364 (d).

The Appellate Court held that the notice was defective in that it did not specify the legal basis of the contemplated suit and the injuries sustained by the patient. The notice therefore did nothing to promote the evaluation or encourage the resolution of the plaintiffs claims out of court. For that reason, the Court explained, it did not toll the statute of limitations, and the plaintiffs consequently lost their ability to sue the hospital. Their suit against the hospital was time-barred.

November 17, 2013

Compensation for a Patient’s Lost Chances to Recover from Illness: A Redux

The Estate of Ruth M. Dormaier v. Columbia Basin Anesthesia, P.L.L.C., — P.3d —, 2013 WL 6037098 (Wash.App. Div. 3 2013)

Three days ago, Washington’s Court of Appeals issued a decision explaining the state’s Supreme Court precedents that entitle patients wronged by their doctors to recover compensation for their lost chances to recover from illness: Herskovits v. Group Health Cooperative of Puget Sound, 664 P.2d 474 (Wash. 1983), and Mohr v. Grantham, 262 P.3d 490 (Wash. 2011). The Court of Appeals ruled that this compensation entitlement is limited to cases in which the injured patient cannot prove causation by a preponderance of the evidence due to her preexisting condition. The Court explained that when a doctor’s malpractice reduces the patient’s chances to recover by more than 50%, the patient would be able to satisfy the preponderance requirement and recover full compensation. The Estate of Ruth M. Dormaier v. Columbia Basin Anesthesia, P.L.L.C., — P.3d —, 2013 WL 6037098 (Wash.App. Div. 3 2013).
This decision also has continued the prevalent, but mistaken, “arithmetical approach” to lost chances. Under this approach, when a doctor’s malpractice reduces his patient’s chances to recover from illness from 75% to 25%, and the patient ultimately does not recover, the doctor must pay the patient 50% (75%-25%) of her damage.

This approach is mistaken for the following reasons:

In probabilistic terms, the doctor’s malpractice moves the patient from the group of 100 patients, of which 75 recover and 25 do not, to an altogether different group of 100 patients of which only 25 recover and 75 do not. Of these 75 injured patients, 50 are victims of the doctor’s malpractice and the remaining 25 are patients that could not be cured to begin with (and for whom the doctor’s malpractice did not change anything). Hence, the patient’s probability of having been harmed by the doctor’s malpractice equals 50/75, i.e., 2/3. This probability makes the patient’s causation claim against the doctor more probable than not (>1/2). The patient consequently becomes entitled to full compensation under the preponderance requirement.

For illustrations of how courts systematically mishandle lost chances by applying the “arithmetical approach,” see Mays v. United States, 608 F. Supp. 1476 (D.C. Colo. 1985) (when doctor’s malpractice reduces patient’s recovery chances from 40% to 15%, patient should receive 25% of her damage); Herskovits v. Group Health Cooperative of Puget Sound 664 P.2d 474 (Wash. 1983) (upon finding that medical malpractice reduced patient’s chances to survive from 39% to 25%, the court held that patient’s widow is entitled to recover 14% of the full compensation amount for wrongful death); McKellips v. Saint Francis Hospital, 741 P.2d 467 (Okla. 1987) (upon finding that medical malpractice reduced patient’s chances to survive from 40% to 25%, the court held that plaintiff is entitled to recover 15% of the full damage); Alberts v. Schultz, 975 P.2d 1279, 1287 (N.M. 1999) (attesting that when doctor’s malpractice reduces patient’s chance to recover from 50% to 20%, patient should receive 30% of his total damage); Jorgenson v. Vener, 616 N.W.2d 366, 372 (S.D. 2000) (when doctor’s malpractice reduces patient’s chance to recover from 40% to 20%, patient should recover 20% of his total damage); Matsuyama v. Birnbaum, 890 N.E.2d 819 (Mass. 2008) (attesting that when doctor’s malpractice reduces patient’s chances to survive from 45% to 15%, and patient subsequently dies from his illness, the compensation amount for wrongful death should be set at 30%).

As I explained above, the patient should have recovered 29% of the total damage in Mays; 19% of the total damage in Herskovits; 20% of the total damage in McKellips; 37.5% of the total damage in the Alberts example; 25% of the total damage in the Jorgenson scenario; and 35% of the total damage in the Matsuyama example. For more details, see Ariel Porat & Alex Stein, Indeterminate Causation and Apportionment of Damages, 23 Oxford J. Legal Stud. 667 (2003); Ariel Porat & Alex Stein, Tort Liability Under Uncertainty 124 (2001).

Incidentally, Restatement (Third) of Torts: Physical & Emotional Harm § 26, cmt. n, relied upon by the Court of Appeals, agrees with this criticism of the “arithmetical approach” and with the calculation of lost chances proposed by Ariel Porat and myself. The “arithmetical approach” is only suitable for compensating plaintiffs for the wrongfully imposed risk of future illness or injury, as I explain here and here.

November 15, 2013

The “Emergency Room” Doctrine: Substance and Procedure

Johnson v. Omondi, — S.E.2d —, 2013 WL 6009480 (Ga. 2013)

Under Georgia statute, allegations of medical malpractice “arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department” must show “gross negligence” and be proven by “clear and convincing evidence.” OCGA § 51–1–29.5(c). Failure to prove the defendant’s gross negligence by clear and convincing evidence should result in a dismissal of the plaintiff’s suit.

In a very recent case, Johnson v. Omondi, — S.E.2d —, 2013 WL 6009480 (Ga. 2013), the Supreme Court of Georgia interpreted and applied this provision. Based on its prior decisions, the Court defined “gross negligence” as the defendant’s “failure to exercise even a slight degree of care.” The Court also ruled that in deciding a motion for summary judgment, the trial judge “must view the evidence presented through the prism of the substantive evidentiary burden”: clear and convincing evidence. Hence, it is the plaintiff’s burden to produce evidence upon which a reasonable jury could determine that the defendant completely failed to deliver the requisite medical care. Specifically, the plaintiff’s expert witness must give an unequivocal account of the defendant’s profound unprofessionalism. Absent such testimony, the trial judge should dismiss the suit summarily.

In the case at bar, a 15-year old patient complaining of chest pain was examined by an emergency room doctor—the defendant—who run a series of tests and ruled out asthma, pericarditis, myocardial infarction, pneumothorax, and, specifically, pulmonary embolism as causes of the pain. Two weeks later, the patient returned to the emergency department, where he died of a pulmonary embolism.

The plaintiffs’ expert testified that the patient’s symptoms presented “classical” indications of pulmonary embolism and that the defendant’s diagnostic measures “did nothing to prove or disprove the presence” of this condition and were “totally irrelevant” and “ridiculous.” The Supreme Court ruled that this testimony constitutes evidence upon which a reasonable jury could find the disputed medical treatment “grossly negligent” under the “clear and convincing” standard. The Court distinguished the case at bar from another case, Pottinger v. Smith, 667 S.E.2d 659 (2008), in which the disputed ER treatment included some unquestionably proper diagnostic measures. The Court explained that under such circumstances a reasonable jury could not find that the ER physician “failed to exercise even slight care and was therefore grossly negligent.” Hence, the plaintiff’s suit will survive a summary judgment motion only when her expert testifies that the disputed ER procedure—diagnosis or treatment—was totally off mark. Presumably, the same restrictive standard will apply to merit affidavits that need to be filed with the suit.

This standard gives Georgia’s ER physicians an ironclad protection against unmeritorious malpractice suits (and against some meritorious suits as well). Therefore, as I wrote in one of my previous posts, Georgia’s law of medical malpractice needs no far-reaching reforms.

November 14, 2013

Tampering with expert witnesses in a medical malpractice case

Wellstar Health Systems, Inc. v. Kemp, — S.E.2d —, 2013 WL 5976853 (Ga. App. 2013)

This case reveals a rather disturbing set of facts: an expert who provided the requisite affidavit for the plaintiffs’ malpractice suit against a hospital was successfully pressured by the defendant’s attorney to withdraw from the case. The campaign against the expert included an implicit threat of being fired from his job at another hospital.

After establishing these facts, the trial judge disqualified the defendant’s attorney, struck the defendant’s answer to the complaint, and entered a default judgment on the malpractice issue. The appellate court affirmed the attorney’s disqualification, but decided that striking the defendant’s answer was too harsh because the plaintiff could find another eligible expert to support his allegations against the hospital and its doctors. Any hardship that the plaintiff might encounter in this regard, held the court, “can be addressed by the trial court with a number of less severe sanctions than the complete foreclosure of [the defendant’s] defenses to liability.” The case was remanded for trial.

This decision strikes me as reasonable, but I would have felt much better about it if the appellate court also allowed the plaintiff to use the intimidated expert’s affidavit as evidence. This ruling was necessary, in my opinion, because Georgia has no “forfeiture by wrongdoing” exception to the hearsay rule. Cf. Federal Rule of Evidence 804(b)(6) (rendering admissible an out-of-court statement offered against a party that wrongfully caused the declarant’s unavailability). Alternatively, the court should have shifted the persuasion burden on the malpractice issue to the defendant, as provided by the spoliation doctrine.

November 6, 2013

Negligent Credentialing under Utah Law

Waddoups v. Noorda, — P.3d —-, 2013 WL 5864481 (Utah 2013)

Three years ago, Utah’s Supreme Court held that hospitals can be sued in torts for negligently credentialing doctors: Archuleta v. St. Mark’s Hosp., 238 P.3d 1044 (Utah 2010). The legislature decided to abolish this precedent by a statutory provision, Utah Code section 78B–3–425, that reads as follows: 

“Prohibition on cause of action for negligent credentialing. It is the policy of this state that the question of negligent credentialing, as applied to health care providers in malpractice suits, is not recognized as a cause of action.” 

In a case decided last week, Waddoups v. Noorda, — P.3d —-, 2013 WL 5864481 (Utah 2013), the Court ruled that this statute was substantive, rather than merely procedural or declaratory, and thus did not apply retroactively to claims that accrued prior to its enactment.

An interesting question here is whether an aggrieved patient can still sue the hospital for negligent supervision of a doctor who was not properly credentialed. My sense is that the patient would be able to file such a suit. The traditional common-law doctrine of corporate negligence imposes on hospitals “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment; (2) a duty to select and retain only competent physicians; (3) a duty to oversee all persons who practice medicine within its walls as to patient care; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.” Welsh v. Bulger, 698 A.2d 581, 585 (Pa. 1997). For good or ill, Utah’s legislature repealed only the second item on that list.

November 4, 2013


Valence v. Jefferson Parish Hosp. Dist. — So.3d —-, 2013 WL 5849724 (La. App. 5 Cir. 2013)

Every lawyer with some experience in medical malpractice knows that a doctor’s mistake in diagnosing or treating a patient does not necessarily amount to negligence. Doctors sometimes make mistakes that are unavoidable or just reasonable, given the constraints under which they treat patients. For that reason, a patient would be ill-advised to sue her doctor on the mistake theory. Doing so could be a very serious mistake.

Valence v. Jefferson Parish Hosp. Dist. — So.3d —-, 2013 WL 5849724 (La. App. 5 Cir. 2013), provides a textbook illustration of that point. At the close of the plaintiff’s hernia repair surgery, his surgeons forgot to retrieve a hemostat from his abdomen. Minutes later, while the plaintiff was still in the operation room, this mistake was discovered by an instrument count and confirmed by an x-ray. Following this discovery, the surgeons retrieved the hemostat from the plaintiff’s abdomen, which fixed their mistake at a minimal pain. Alas, this mistake was accompanied by another: according to the plaintiff, the device that the surgeons used to affix an oval mesh patch to his abdomen misfired twenty-one staples into his abdomen. Allegedly, twenty of those staples could not be retrieved.

The plaintiff thought that these mistakes would allow him to proceed in his action against the surgeons without an expert witness. He was wrong. The plaintiff’s action was summarily dismissed by the trial judge, and the court of appeals affirmed that dismissal. The plaintiff’s action was doomed because it did not satisfy the “common knowledge” exception to the expert witness requirement. Specifically, it did not allege an “obvious negligence that could be inferred by a lay person [as in cases] where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body.” Pfiffner v. Corea, 643 So.2d 1228, 1234 (La. 1994). The surgeons’ mistakes looked bad, but they may have still been non-negligent because doctors are afforded a permissible margin of error. To show that the surgeons’ mistakes fell outside that margin, the plaintiff had to call an expert witness.

For the same reason, the plaintiff could not benefit from the res ipsa loquitur presumption. This presumption moves the case to a jury when the plaintiff’s injury “is a type which ordinarily would not occur in the absence of negligence.” Cangelosi v. Our Lady of the Lake Reg. Med. Ctr., 564 So.2d 654, 667 (La. 1989). To establish this prerequisite in a medical malpractice action that falls outside the narrow scope of the “common knowledge” exception, the plaintiff must produce expert testimony.

Finally, the plaintiff also could not rely on the “foreign object” exception to the expert testimony requirement. For that exception to apply, the forgotten hemostat ought to have stayed in the plaintiff’s abdomen for more than just a few minutes. Valence, id. at *4. As for the surgical staples, the plaintiff, once again, ought to have called an expert witness “to establish the standard of care in the use of the tacking device and number or type of staples appropriate for [his] surgery, the placement and type of mesh patch appropriate for such surgery, and the proper procedure for instrument counts and instrument retrieval following surgery.” Valence, id. at *4.