ISSUE 1:4, April 2013 – Recent Developments

April 28, 2013

“Medical Malpractice” or General Negligence?

Categorization of a tort action as a suit for “medical malpractice,” as opposed to general negligence, or vice versa, can be crucial. By making this categorization, courts determine whether the suit must satisfy the special requirements for filing “medical malpractice” suits that include shortened limitations periods, statutes of repose, expert affidavits and merit certificates.

Two very recent decisions, described below, deal with this important issue.

Churchill v. Columbus Community Hosp., — N.W.2d —, 285 Neb. 759, 2013 WL 1776746 (Neb. 2013)

The plaintiff underwent aquatic physical therapy at the defendant’s clinic. When the session ended, as she was descending the steps of the clinic’s aboveground pool, she slipped and fell on the wet tile floor, injuring her arm and wrist. She sued the defendant, arguing that her suit is subject to the general 4-year limitations period that had not expired, rather than to the 2-year limitations period for “professional negligence” suits that had expired.

Nebraska Supreme Court disagreed: it decided that the 2–year statute of limitations, Neb. Rev. Stat. §§ 25–208 & 25–222, applied. The Court reasoned – rightly – that physical therapy is a professional service that requires licensing and accreditation and rejected the plaintiff’s characterization of her suit as based upon premises liability.

In support of this decision, the Court cited a number of important precedents: Swassing v. Baum, 240 N.W.2d 24 (Neb. 1976) (a blood-typing test incorrectly reported by doctor’s employee is “professional negligence”); Stanley v. Lebetkin, 123 A.D.2d 854 (N.Y. 1986) (suit by a plaintiff who fractured an ankle while getting off a doctor’s examining table is a “medical malpractice” action barred by the special statute of limitations following the plaintiff’s failure to bring her claim within the timeframe for “medical malpractice” actions); Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011) (categorizing suit by a hospital patient who slipped on a wet floor while getting out of a bathtub as a “health care liability” claim).

The Court also quoted Rome v. Flower Memorial Hosp., 635 N.E.2d 1239 (Ohio 1994) –a decision in which it addressed two consolidated cases. In one of those cases, the plaintiff fell off an x-ray table and alleged that the defendant’s employee failed to properly secure the footboard. In the second case, the plaintiff was injured after a component of his wheelchair collapsed while he was being transported from the physical therapy department. The Court decided that both cases presented a “medical claim” barred by the special 1–year statute of limitations.

I’d like to add two decisions to the Court’s collection: Husby v. S. Ala. Nursing Home, Inc., 712 So. 2d 750, 751–54 (Ala. 1998) (suit involving a nursing home resident who fell out of bed, fractured her femur and died shortly after femoral surgery categorized as “medical malpractice”) and Chandler v. Opensided MRI of Atlanta 682 S.E.2d 165 (Ga. App. 2009) (instructing a lower court to determine whether a suit by a patient who sustained injury from falling on the floor from an MRI table alleges “medical malpractice” rather than garden-variety negligence against the MRI technician and his employer).

Egan v. Chambers, — P.3d —, 2013 WL 1775452 (Nev. 2013)

This decision involved a suit alleging surgery-related negligence against a podiatric doctor. The plaintiff filed her suit without submitting to court an affidavit-of-merit that, under Nevada statute, must accompany any suit alleging “medical malpractice” against “physicians, hospitals, and hospital employees.”

The Court held that the affidavit-of-merit requirement only applies to “medical malpractice or dental malpractice” actions, rather than to all suits for professional negligence (the Court overruled its previous precedent that required a merit affidavit for any professional negligence suit). The Court ruled that, since podiatrists are not licensed physicians, suits against them do not fall into the “medical malpractice” category. The Court therefore decided that the plaintiff’s suit can proceed without an affidavit from a medical expert.

April 25, 2013

New Jersey Supreme Court Tightens Up the Eligibility Requirements for Experts Testifying in Medical Malpractice Cases

Nicholas v. Mynster, — A.3d —, 2013 WL 1760434 (N.J. 2013)

We already had similar updates from other states: the plaintiff’s expert must practice medicine in the same specialty as the defendant doctor (through board certification or credentialing by a hospital).

The plaintiffs — Mr. Nicholas and his wife — sued two hospital doctors, board certified in emergency medicine and family medicine, for improperly treating Mr. Nicholas’s carbon monoxide poisoning. The plaintiffs’ expert was a board-certified physician in internal and preventive medicine. This misalignment disqualified the plaintiffs’ expert and doomed the suit.

New Jersey Supreme Court decided that the plaintiffs’ expert is not authorized to testify to the standard of care applicable to the treatment of carbon monoxide poisoning by the defendants. Emergency medicine, family medicine, internal medicine, and preventive medicine – explained the Court – are all distinct specialty areas. Doctors practicing in those areas may treat carbon monoxide poisoning, but their standards of care may be different.

I estimate that this trend will soon become nationwide.

The current bright-line-rule approach to medical negligence allows the medical profession to figure out its own rules and “safe harbors” for doctors. This approach regulates patients’ litigation behavior: courts do not even try to induce improvements in medical care.

Consequently, a doctor becomes exposed to a potentially successful malpractice suit only when she does something professionally unheard of – you may call it “gross negligence.” For that reason, I oppose low damage caps. They are unnecessary, unjust, and economically anomalous. Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1255-56 (2012)..

 April 24, 2013

Ohio Supreme Court Interprets the “Apology Statute”

Estate of Johnson v. Randall Smith (Ohio, 2013)

Yesterday, Ohio Supreme Court delivered a decision interpreting the “Apology Statute” – R.C. 2317.43 – that prescribes the following:

“In any civil action brought by an alleged victim of an unanticipated outcome of medical care or in any arbitration proceeding related to such a civil action, any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a health care provider or an employee of a health care provider to the alleged victim, a relative of the alleged victim, or a representative of the alleged victim, and that relate to the discomfort, pain, suffering, injury, or death of the alleged victim as the result of the unanticipated outcome of medical care are inadmissible as evidence of an admission of liability or as evidence as an admission against interest.”

This statute was invoked by a doctor defending against medical malpractice suit filed by his patient’s estate. The patient experienced complications after a gall bladder removal surgery and became very upset. The doctor tried to calm the patient by holding her hand and saying “I take full responsibility for this. Everything will be okay.” The plaintiffs offered this statement into evidence as an express or implied admission of malpractice by the doctor. They counted on the fact that the doctor made the statement before the Apology Statute came into effect.

The Court ruled that the Apology Statute applies to all medical malpractice actions filed after the statute’s effective date: September 13, 2004. The fact that the doctor made the disputed statement prior to that date was held to be immaterial. The Court categorized the statute as a change of adjudicative practice and procedure that “is properly applied prospectively if it has been enacted after the cause of action but before the trial of the case.” Hence, in any medical malpractice action filed after the statute came into effect, the doctor is entitled to suppress evidence of her sympathetic and compassionate gestures toward the patient.

This decision is correct in its bottom line. I have some doubts about the Court’s categorization of the Apology Statute as a regulation of procedure and evidence. The statute has a broader ambition: it ascribes legal meaning to the way in which many doctors deal with distressed patients as part of their practice of medicine. When doctors convey sympathy, compassion or regret to a distressed patient, they follow their professional practice. Admission of doctors’ expressions of compassion, sympathy and regret into evidence would chill this good practice as factfinders might interpret it as an acknowledgment of fault. The statute’s primary purpose is to remove this chilling effect. The statute therefore should be categorized as substantive.

The procedure/substance divide matters for diversity suits filed against doctors. Categorizing Ohio’s Apology Statute as procedural or evidential would make it inapplicable in those suits, as it will be trumped by the Federal Rules of Evidence (pursuant to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). Under these rules, courts will have a broad discretion to admit doctors’ expressions of compassion, sympathy and regret into evidence (see Fed. R. Evid. 401, 403). On the other hand, categorizing the statute as “substantive” would require federal courts to grant its protection to Ohio doctors.

This issue is unsettled as courts are yet to develop a consistent differentiation between “substance” and “procedure”: see my article The Trial-Time/Forum Principle and the Nature of Evidence Rules, in Current Trends in Criminal Procedure and Evidence 81 (2009).

April 20, 2013

Connecticut Supreme Court Determines the Relationship between the Merit Certificate Requirement and Statute of Limitations

Santorso v. Bristol Hosp., 2013 WL 1668331 (Conn. 2013)

In Plante v. Charlotte Hungerford Hosp., 12 A.3d 885 (Conn. 2011), the Connecticut Supreme Court ruled that when a court dismisses a malpractice suit for failure to provide an opinion letter authored by a similar healthcare provider (Connecticut’s “merit certificate”), the plaintiff must submit a properly substantiated suit within the original limitations period. Failure to do so will time-bar the suit unless the plaintiff shows that his “failure in the first action to provide an [appropriate] opinion letter was the result of mistake, inadvertence or excusable neglect, rather than egregious conduct or gross negligence on the part of the plaintiff or his attorney.”

In Santorso, the plaintiffs failed to make this showing and the Court decided that their right to sue the defendant had expired. The fact that the plaintiffs’ original suit — unaccompanied with the requisite healthcare provider letter — was filed within the limitations period was of no consequence.

This approach to the limitations doctrine will motivate plaintiffs to rely on opinion letters and merit certificates coming from experts whose specialty completely aligns with the defendant’s.

April 20, 2013

Texas Supreme Court Rules on the Expert Report Requirement for Medical Malpractice Suits

Potts v. Certified EMS, 2013 WL 561471 (Tex.)
Presbyterian Hospital of Denton v. Moreno, 2013 WL 1366028 (Tex.)

Earlier this month, the Supreme Court of Texas delivered a precedential decision, Potts v. Certified EMS, 2013 WL 561471 (Tex.), that clarified the statutory requirement for an expert report that plaintiffs suing doctors for malpractice must submit in advance of trial. This decision has a nationwide significance, as Texas’s expert-report requirement parallels similar requirements that exist in other states.

The decision resolved an issue that frequently arises in medical malpractice litigation: Does the expert’s report need to cover each and every theory of liability alleged against the defendant? The Court ruled that the report only needs to substantiate one of multiple liability theories to allow the entire suit to proceed to trial. To see how this threshold standard works, consider a patient complaining that her doctor negligently delayed her surgery and then erred in performing the surgery and in delivering postsurgical care. To proceed to trial, this patient will have to submit an expert report that verifies one of her three complaints. Subsequently, the patient will have to decide whether she wants to pursue her outstanding complaints against the doctor. If she decides to pursue those complaints, she would need to produce additional expert testimony at her trial. The patient, however, is not required to substantiate these complaints ahead of trial by adducing an expert report.

The Court’s ruling makes perfect sense. The requirement that plaintiffs advance their expert reports serves a dual purpose. First, it helps courts separate between medical malpractice suits that potentially have merit and those that do not. Relatedly, this requirement forces a plaintiff to reveal at an early stage of the proceeding whether he evaluates his suit as meritorious. Plaintiffs evaluating their suits as meritorious will upfront their investment in the expert testimony. Plaintiffs whose suits are speculative or frivolous will hesitate to do so.

This rationale explains why it is enough for a plaintiff’s medical expert to verify only one liability theory out of many. As the Texas Supreme Court explains, this verification identifies the plaintiff’s suit as potentially meritorious. Later on, if the plaintiff decides to pursue all of his liability theories, he might need to adduce additional expert testimony. The plaintiff, however, need not commit himself to this trial strategy – and incur the additional cost of engaging a medical expert – at the outset of the proceeding.

This decision strikes a good balance between patients’ access to justice and doctors’ interest not to be exposed to unmeritorious malpractice suits.

Roughly at the same time, the Supreme Court of Texas decided Presbyterian Hospital of Denton v. Moreno, 2013 WL 1366028 (Tex.) – a case featuring vaginal delivery of twins, one of whom suffered blood loss and a hypoxic-ischemic insult that damaged his nervous system and kidneys. The plaintiff submitted to court (with some delays, for which she was excused) expert reports that came from an obstetrician-gynecologist, a pediatric nephrologist, and a pediatric neurologist. The ob-gyn’s report identified the defendants’ malpractice: a decision to deliver the twins vaginally rather than by a C-section. The nephrologist’s report explained that “asphyxia during the birth process caused the baby’s kidney injury.” The neurologist’s report attested that “the hypoxic-ischemic event during the labor and delivery process caused the baby’s brain injury.”

The defendant argued that none of those reports covers the plaintiff’s allegations of malpractice, damage, and causation, but this argument failed. The Texas Supreme Court found it inconsequential. Specifically, it ruled that plaintiffs can combine several expert reports to verify their malpractice allegations against doctors.

This ruling is unquestionably correct as well.

April 20, 2013

Stringent Standard for Admitting Medical Expert Testimony in Alabama

Hegarty v. Hudson, 2013 WL 1364686 (Ala.)

In this April 5 decision, the Alabama Supreme Court interpreted a statutory requirement that an expert who comes to court to support a malpractice suit against a physician must be “similarly situated” to that physician in the line of practice.

This interpretation was needed for the following set of facts:

The plaintiff arranged with a board-certified family practitioner to deliver her baby through a C-section. The family practitioner carried out the C-section and delivered the baby, but he wasn’t able to locate and remove the placenta that detached from the baby’s umbilical cord. The plaintiff consequently required an additional surgery to remove the placenta from her abdomen. Before that surgery, she sustained severe abdominal pain and dramatic weight loss.

Her malpractice suit against the family practitioner was supported by a board-certified obstetrician-gynecologist. This specialist came to court to testify that it was malpractice on the defendant’s part to close the plaintiff’s incision without retrieving the placenta. The Alabama Supreme Court ruled that board-certified ob-gyns and board-certified family practitioners belong to different specialties. Both types of doctors deliver babies and perform C-sections, but they are still not “similarly situated,” contrary to the Alabama statute. Hence, the ob-gyn’s testimony was not admissible: he was not an eligible expert witness to support the plaintiff’s suit against a board-certified family practitioner.

I can’t argue against the Alabama statute and its interpretation by the ultimate insider to Alabama law. That said, could the plaintiff not rely on the res ipsa loquitur presumption? Does the ABFM has a standard that could vindicate the defendant?

April 20, 2013

Arizona Supreme Court Tightens Up the Eligibility Requirements for Experts Testifying in Medical Malpractice Cases

Baker v. University Physicians Healthcare, 296 P.3d 42 (2013)

Under Arizona statute, A.R.S. § 12–2604, experts testifying in medical malpractice actions must specialize “in the same specialty” as the defendant doctor (when the allegedly negligent treatment of the patient falls within that specialty).

In Baker, the plaintiff attributed negligence to a board-certified pediatric hematologist-oncologist who treated his seventeen-year-old daughter for blood clots. The plaintiff claimed that his daughter died as a consequence of that medical negligence. His expert witness was a board-certified physician specializing in internal medicine as well as in hematology and medical oncology. The defendant received his certification from the American Board of Pediatrics. The expert witness’s certification, on the other hand, came from the American Board of Internal Medicine. Both Boards affiliate to the American Board of Medical Specialties (“ABMS”).

The Supreme Court of Arizona held that the difference between the doctor’s and the witness’s certifications makes them different, rather than “same,” specialists. Moreover, the Court decided that the statutory “same specialty” requirement refers to sub-specialties as well, and that specialties and sub-specialties need not be recognized by ABMS. All that needs to be shown to establish a “specialty” is that the defendant doctor was licensed to deliver the treatment in question. The Court consequently ruled that the plaintiff’s expert was not eligible to testify against the defendant and approved the summary dismissal of the suit.

The plaintiff also challenged the statute on constitutional grounds. He complained that the statute is “special law” that unduly restricts medical malpractice victims’ access to courts. The Court, however, upheld the statute’s constitutionality after finding it to be sufficiently general and non-discriminatory. The Court ruled in this connection that the statute “conceivably furthers a legitimate interest by decreasing medical malpractice insurance rates and the reluctance of physicians to practice in Arizona.”

One can’t argue with the Court’s understanding of Arizona’s Constitution. The Court’s stringent interpretation of “specialty,” on the other hand, is deeply problematic. This interpretation substantially reduces the pool of eligible expert witnesses, which expands the doctors’ opportunity to form the infamous conspiracy of silence—an implicit mutual undertaking of the narrowly defined specialists and sub-specialists not to testify against each other. Reduction of medical malpractice insurance rates should be among the economic consequences of this ruling, as many negligent doctors will now go scot free. Whether this reduction should come at the expense of medical malpractice victims is, of course, an altogether different question. The Court may have felt that victims should pay this price to motivate doctors to practice in Arizona, but its decision might encourage suboptimal care as well.

April 20, 2013

Medical Malpractice Goes to the Supreme Court

Levin v. United States, 568 U.S. ___ (2013)

This doesn’t happen very often (on a previous occasion, Hui v. Castaneda, 559 U.S. 799 (2010), the Court ruled, unanimously, that an immigration detainee who allegedly received negligent medical treatment pursuant to the Public Health Service Act can only sue the United States under the Federal Tort Claims Act and cannot sue the government’s employees for civil rights’ violation under Bivens).

In Levin, the Government called into question the plain meaning of the Gonzalez Act, 10 U.S.C. § 1089, that makes the remedy against the United States under the Federal Tort Claims Act (FTCA) the only recourse for victims of malpractice allegedly committed by the armed forces medical personnel (subsection (a)), while providing, in subsection (e), that “For purposes of this section, the provisions of section 2680(h) of title 28 shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical, dental, or related health care functions…”.

Section 2680(h) of Title 28, excludes from the general waiver of the Government’s sovereign immunity from tort suits under FTCA a number of intentional torts, including battery. That is: although the Government generally stays immune against suits for battery and other intentional torts listed in 28 U.S.C. § 2680(h), the Gonzalez Act makes medical battery and other intentional torts that constitute medical malpractice actionable against the Government.

Mr. Levin’s sustainable complaint was about informed consent (he failed to support his negligence claim by an expert witness). As a veteran, Mr. Levin underwent cataract surgery at the Naval Hospital in Guam. The surgery was carried out by an ophthalmic surgeon serving in the Navy. Mr. Levin argued that he withdrew his consent to the surgery but the surgeon nonetheless went on to perform it, to his detriment. Mr. Levin consequently sued the United States for battery under FTCA.

The Government managed to persuade the District Court and, subsequently, the Court of Appeals for the Ninth Circuit to dismiss this suit. The Ninth Circuit adopted the Government’s interpretation of 28 U.S.C. § 2680(h), holding that this provision aims to prevent “clever tort plaintiffs” from asserting battery claims against military doctors on the spurious theory that the Gonzalez Act’s preclusion works against negligence claims only. This interpretation contradicts the provision’s plain meaning (that the Government itself had endorsed in a previous litigation before the Supreme Court!).

Unsurprisingly, the Supreme Court ruled, unanimously, that FTCA allows all kinds of medical malpractice suits against the United States: those that sound in negligence and those that assert battery, assault or another intentional tort.

This decision is unquestionably correct. And it also brings about an unintended beneficial consequence: it forestalls a serious anomaly that could beset our system of medical malpractice if the Court were to side with the Government. Specifically, the Court’s interpretation of 28 U.S.C. § 2680(h) prevents a distortionary disposition of suits for informed-consent violation that can be asserted against the Government under FTCA. FTCA’s core function is to remove the Government’s sovereign immunity against tort suits: this Act does not establish the causes of tort actions against the Government. Those causes of action are determined by state law. Conditions under which patients can successfully sue doctors for informed-consent violations differ from one state to another. Some states allow patients to proceed on a regular negligence theory. Other states, however, allow patients to sue doctors for informed-consent violations only upon battery or assault theories. Adoption of the government’s interpretation of 28 U.S.C. § 2680(h) would therefore have created an intolerable “venue discrimination” between patients receiving medical treatment in different military facilities.

Take a veteran who undergoes surgery at the VAMC Hospital in Philadelphia, Pennsylvania. Assume that the veteran’s doctors fail to inform him about the surgery’s risks and benefits, thereby violating his right to informed consent. Under Pennsylvania law, violations of informed consent are only actionable under the assault / battery theory (see, e.g., Morgan v. MacPhail, 704 A.2d 617 (Pa. 1997)). Had the Government’s interpretation of 28 U.S.C. § 2680(h) been adopted, this and similarly situated veterans would not be able to sue the Government for violating their right to informed consent. The veteran, however, would be able to assert an informed-consent violation against the Government if he chose to undergo surgery in a negligence jurisdiction: say, in New York or New Jersey. This arbitrariness is intolerable and the Court did well to prevent it.

April 20, 2013

ERISA, MCOs, and Hepatitis C in Nevada

Cervantes v. Health Plan of Nevada, 263 P.3d 261 (Nev. 2012); Lynam v. Health Plan of Nevada, Inc., 2012 WL 991705 (Nev.)

The most significant recent development in the ERISA preemption field (ERISA, §§ 502, 514) unfolded in Nevada’s “Hepatitis C” litigation: Cervantes v. Health Plan of Nevada, 263 P.3d 261 (Nev. 2012); Lynam v. Health Plan of Nevada, Inc., 2012 WL 991705 (Nev.). Both cases featured a patient who underwent the endoscopy procedure with a provider affiliated to the Health Plan of Nevada, Inc. (HPN). The procedure was delivered as part of the patient’s employment-related health benefit plan. Allegedly, the provider failed to implement a quality assurance program at its facility, contrary to Nevada’s statute. As a result, the patient became infected with Hepatitis C during the procedure.

The two cases differed from each other in one respect. In Cervantes, it was established that the patient’s ERISA plan employed HPN to help it set up a network of providers who individually contracted with the plan for delivering medical care to the enrollees. This retail contracting affiliated the providers to the ERISA plan. In Lynam, on the other hand, the patient argued that HPN leased out its entire network of providers to the plan or, alternatively, used that network to sell the plan a comprehensive health insurance package. This wholesale bargain established a discrete legal relationship between the ERISA plan and HPN, while HPN’s individual providers contracted with HPN alone without affiliating themselves to the plan.

The difference between these two contractual frameworks—wholesale and retail—proved to be crucial. In the retail setup—the Cervantes case—the court ruled that the plaintiffs’ malpractice suit is preempted. The court reasoned that the retail bargaining between the ERISA plan and the individual providers associated with HPN has created a single integrated ERISA-governed healthcare framework that Nevada’s legislature cannot regulate. The quality assurance statute, upon which the plaintiffs based their suit, consequently was inapplicable. Allowing it to interfere with the plan’s administration, held the Court, would contradict the ERISA preemption doctrine that aims to secure the exclusivity of federal regulation in that area.
In the wholesale setup—the Lynam case—the Court allowed the plaintiff to proceed with his malpractice suit against HPN because Nevada’s quality assurance statute regulated HPN’s internal affairs independently of the ERISA framework. As a bundle of providers and services, HPN offered medical care to Nevada’s residents independently of the different ERISA plans operating in Nevada. These plans were free to contract with any provider individually and build their own network of providers. Importantly, the ERISA plans were also free not to enter into wholesale agreements with HPN and its likes. The plans, in other words, were free to choose between setting up their own networks, free of Nevada’s regulation, by taking on board individual providers, and contracting with HPN or a similar organization that offers a bundle of services regulated by Nevada’s quality assurance statute.

As the Lynam Court explained, “ERISA would preempt the application of [Nevada’s quality assurance statute] to a managed care organization (MCO) or HMO if they had merely facilitated the selection of providers by the ERISA plan; however, preemption would [not] apply if the MCO or HMO had leased out its existing network of providers … or if the ERISA plan had simply purchased an insurance plan from a MCO or HMO.”

These decisions may be criticized for making the ERISA preemption’s applicability depend on formal contracting, but I think that these are excellent decisions. They give ERISA plans operating in Nevada a menu to choose from. A plan may select to bypass Nevada’s quality assurance statute by integrating individual providers on a retail basis. Alternatively, the plan may select a wholesale transaction: it may purchase a bundle of services from a regulated Nevada-based organization of providers. The first option will reduce the cost and quality of medical care offered by the plan, but the plan would have to incur substantial bargaining costs in realizing this option. The second option will raise the quality of medical care offered by the plan, but it will also cost more. By choosing this option, however, the plan will save the cost of bargaining with individual care providers. This saving will reduce the cost-difference between the higher and the lower quality care.

The Nevada Supreme Court decisions bring about a socially beneficial consequence. They motivate ERISA plans to funnel into healthcare money that would otherwise be expended on bargaining. Put differently, these decisions increase the transaction costs for ERISA plans that choose to bypass the state’s quality of care requirements for local providers. These decisions therefore deserve commendation.

One final remark. The plaintiffs in the two cases might have been able to avoid the ERISA preemption by suing their providers for improper treatment (as opposed to an improper management of their facilities that violated Nevada’s quality assurance statute). By choosing this cause of action, the plaintiffs would have to prove that the providers acted negligently, which seems difficult. But the plaintiffs could have tried to apply the res ipsa loquitur presumption, recently extended to cases in which patients became infected: see Sides v. St. Anthony’s Medical Center 258 S.W.3d 811 (Mo. 2008). Whether this argument would have succeeded under Nevada law is uncertain, but it was worth trying.

April 20, 2013

Causation, Spoliation, Alternative Liability, and Lost Chance in Rhode Island

Almonte v. Kurl, 46 A.3d 1 (R.I. 2012)

All medical malpractice lawyers and students must read Almonte v. Kurl, 46 A.3d 1 (R.I. 2012).

This case features a psychiatric patient who was brought to a psychiatrist for involuntary evaluation and possible committal to a psychiatric hospital after undergoing an acute episode. The psychiatrist examined the patient, but opened no committal process. As a result, the patient was released to commit suicide, apparently with the same gun that he threatened to use in the episode that triggered the evaluation.

The Rhode Island Supreme Court approved the trial judge’s decision that the psychiatrist’s failure to open the committal process amounted to malpractice. Yet, the psychiatrist was still able to summarily defeat the wrongful death action filed by the patient’s family.
How could that happen?

The Court decided that the plaintiffs failed to establish causation. Specifically, it ruled that the plaintiffs failed to prove by a preponderance of the evidence that the committal process could have prevented the suicide. This process, the Court explained, is rigorous and does not guarantee a committal in the end. The patient, therefore, could have had the same opportunity to commit suicide even if the psychiatrist were to initiate that process.

The plaintiffs acknowledged that they could not preponderantly establish that the committal process would have led to the patient’s prompt institutionalization. This acknowledgement amounted to an admission that the process may or may not have prevented the patient’s suicide. The plaintiffs, however, argued that the psychiatrist should still pay for the consequences of her negligence. This argument was pretty straightforward. The plaintiffs would not be facing the need to prove the unprovable consequences of the counterfactual “committal process” scenario if the psychiatrist were to open the process. The plaintiffs’ evidential predicament therefore resulted from the psychiatrist’s negligence. Because this negligence resulted in the plaintiffs’ evidential incapacitation, they asked the Court to award them the spoliation remedies or, alternatively, compensation under the “alternative liability” doctrine. As another alternative, the plaintiffs requested compensation for the patient’s lost chances to be rescued from his suicidal situation.

Alas, the Court turned down each of these requests. Here is why:


According to the Court, spoliation remedies are recoverable only in connection with destruction of documents or other evidence. These remedies are not available in cases in which the defendant’s negligence triggers a causally indeterminable harmful event. The Court explained that “the absence of an evaluation of Mr. Almonte by a mental health service reflects negligent care on the part of Dr. Kurl, not the spoliation of evidence” and that the purpose of the spoliation doctrine is “to prevent parties from benefiting from their own unexplained failure to produce certain evidence.” The doctrine’s narrow interpretation, combined with what the Court described as “the “metaphysical” nature of the never-performed evaluation,” led to a decision that denied the plaintiffs the spoliation remedies.


The alternative liability doctrine originates from a celebrated California Supreme Court decision in Summers v. Tice, 199 P.2d 1 (Cal. 1948). This case involved two hunters each of whom negligently, and independently of the other hunter, fired a single shot in the plaintiff’s direction. One of the two shots severely injured the plaintiff, who had no evidence that could identify the gun from which it was fired. The Court shifted the burden of proof to the defendants. Specifically, it held that it is up to each defendant to disassociate his negligent firing from the plaintiff’s injury. Because neither of the defendants was able to show that he did not fire the fatal shot, the court found both defendants liable (jointly and severally).

The Rhode Island Supreme Court held that the facts of the Almonte case preclude the application of the alternative liability doctrine. The Court explained that this doctrine only applies when the plaintiff proves by a preponderance of the evidence that two (or more) defendants acted negligently against him, with one of those defendants being factually certain to have inflicted the plaintiff’s injury if the other defendant did not inflict it. That is, the plaintiff must prove by a preponderance of the evidence that he would have sustained no injury if all defendants exercised proper care. The Almonte plaintiffs failed to prove that the psychiatrist’s proper care—opening the committal process that was far from guaranteeing the patient’s prompt institutionalization—would have prevented the suicide.


The Rhode Island Supreme Court indicated in the past that, “under an appropriate factual scenario,” it will make a precedential ruling on whether a wronged patient’s lost chance to recover from illness or achieve a better medical outcome is actionable in torts (Contois v. Town of West Warwick, 865 A.2d 1019, 1023–27 (R.I. 2004)). The Almonte plaintiffs argued that this case presents such a scenario, but the Court disagreed. According to the Court, the plaintiffs failed to present evidence showing that the psychiatrist’s malpractice increased the patient’s chances to commit suicide. The Court noted that the “plaintiffs could have presented an expert to testify as to the process that would have taken place after a committal,” but have chosen not to do so. For that reason, the Court held that the lost-chance doctrine would be of no help to the plaintiffs even if it were recognized in Rhode Island.


The Court was right about alternative liability but wrong about everything else.
Begin with the spoliation doctrine. There is no difference between a doctor who negligently destroys or fails to keep a record pertaining to his patient’s diagnosis or treatment and a doctor who fails to generate such a record (see, e.g., Smith v. United States, 128 F.Supp.2d 1227 (E.D. Ar. 2000)). By the same token, a doctor commits spoliation when he denies a patient an information-generating procedure to which the patient was entitled. This is exactly what happened in the Almonte case. Furthermore, as Ariel Porat and I explain in our book, Tort Liability Under Uncertainty, Chs. 6 & 7 (Oxford University Press, 2001), a doctor who denies a patient proper treatment oftentimes commits an additional wrong: she deprives the patient of the valuable information about the effects of that treatment. This deprivation is conceptually similar to a doctor’s failure to make a medical record that could inform the patient about the course and the consequences of treatment he received. The doctor consequently should assume liability for spoliation under both scenarios.

As far as lost chances are concerned, it is only reasonable to assume that a prompt committal proceeding could improve the patient’s chances to be rescued from his suicidal situation. The patient could have been institutionalized quickly enough had the requisite proceeding been opened. The proceeding’s complete absence undeniably widened the patient’s opportunity to commit suicide. Admittedly, the plaintiffs presented no evidence that could allow factfinders to calculate the increase of this opportunity, but what evidence could they possibly present? Bringing as a witness an insider to Rhode Island’s committal process would hardly provide the required information: presumably, every committal proceeding is an individual affair that presents factually unique circumstances. For that reason, I also do not think that the patient’s lost chances could be extrapolated from the committal statistics of Rhode Island.

More fundamentally, given that the psychiatrist wronged the patient, I believe that the court should have judicially noticed the fact that the patient was denied an opportunity to be promptly hospitalized against his will and rescued from the suicidal crisis. Absence of evidence upon which factfinders could estimate how big this opportunity was should have led the court to assume that the unavailable evidence is not slanted in either direction and that the patient’s lost chances could therefore be any. Under this assumption, the negligent psychiatrist should have been deemed to have denied the patient a 50% chance of surviving the crisis.

April 20, 2013

Causes of Action:
Montana Supreme Court Severely Limits Patients’ Ability to Sue Doctors and Hospitals for Violating Consumer Protection

Brookins v. Mote, 292 P.3d 347 (Mont. 2012)

This decision is not big news, but it lucidly formulates a principle by which to determine whether a patient can sue her doctor for violating the state’s consumer protection statute.

As an initial matter, why would an aggrieved patient sue her doctor for violating the consumer protection statute instead of filing a straightforward suit that alleges medical malpractice?

Many people know the answer, but I will still give it.

Medical malpractice suits are much harder to prosecute than a consumer protection lawsuit.

Here is why:

The first and most significant obstacle is proof of negligence. A patient suing her doctor for malpractice must establish that the treatment she received from the doctor did not align with the customs, standards, and protocols devised by the medical profession. The required proof is not easy to provide. The patient, for example, normally would not be able to convince the factfinder that the doctor committed malpractice simply by showing that the treatment she received did not succeed.

Under consumer protections laws, by contrast, the plaintiff must prove that the defendant used deception or misrepresentation to induce him to enter into an unfavorable bargain. An unsuccessful medical treatment can often be perceived as a bad bargain, and when a doctor or a hospital entices the patient to undergo the treatment, the enticement may constitute a violation of the applicable consumer protection statute.

Furthermore, to properly file a medical malpractice suit, the plaintiff must submit to court an expert affidavit, “merit certificate” or equivalent evidence (depending on the jurisdiction in which the suit is filed). The required expert assistance is expensive. Many plaintiffs cannot easily afford it. For them, suing a doctor or a hospital under the applicable consumer protection statute might be an attractive possibility: all the plaintiff needs to do is credibly portray her unsuccessful treatment by the doctor as a consumer deceit, or even fraud—an allegation that does not call for an expert witness. Subsequently, the plaintiff may still need a medical expert in order to prove her deceit or fraud allegations, but even then she would not have to hire an expert before she knows that the case proceeds to trial. This deferral of a substantial litigation expenditure improves the plaintiff’s bargaining position in her settlement negotiations with the defendant. The unspent cost of a medical expert witness increases the settlement range and the probability of a settlement.

Filing a consumer-protection suit may also help the plaintiff bypass the rigid limitations and repose provisions for medical malpractice actions. New York, for example, sets the general limitation period for civil suits at 3 years. Moreover, plaintiffs are often able to suspend the beginning of this period by successfully asserting the discovery rule. This rule applies when the plaintiff shows that some of the facts that allow her to sue the defendant were not—and could not reasonably be—within her knowledge. The plaintiff’s “reasonable ignorance” postpones (or “tolls”) the statute of limitations. By contrast, for suits alleging medical malpractice the limitation period is set at 2.5 years, and a plaintiff can only toll this period in cases involving continuous treatment or an undiscoverable foreign object that a doctor or a nurse left in her body (in the latter case, the plaintiff must file her suit within a year after the foreign object was, or could reasonably be, discovered).

Note, however, that the consumer-protection bypass may not be open for patients suing a hospital that belongs to the New York City Health and Hospitals Corporation. Under the applicable statute, McKinney’s C.L.N.Y. Ann. § 7401(2), any tort action against the Corporation (not just an action alleging medical malpractice) must be filed within 1 year and 90 days from the accrual of the cause of action. The key question here is whether a consumer protection suit constitutes a “tort” action for purposes of the statute. Arguably, it does: violation of consumer protection is a statutory tort.

Finally, consumer protection laws often allow successful plaintiffs to recover treble damages. Medical malpractice law does not allow plaintiffs to recover such damages. Courts also rarely award punitive damages in medical malpractice suits, although, of course, a doctor’s egregious conduct may trigger this sanction.

Brookins illustrates a plaintiff’s unsuccessful attempt to establish medical negligence. This plaintiff was a woman who experienced medical complications before, during, and after delivering a baby with severe brain development problems. The plaintiff filed a malpractice suit against the obstetrician responsible for the baby’s prenatal care, delivery, and postnatal care; and she also sued the hospital in which she delivered the baby. Her suit against the obstetrician was settled out of court for an unreported amount.

The plaintiff’s suit against the hospital alleged negligent credentialing of the obstetrician and a violation of Montana’s consumer protection statute. As far as the first claim is concerned, the plaintiff argued that the hospital ought not to have granted the obstetrician attending privileges that enabled him to deliver treatment to hospital patients. The reason supporting that argument was straightforward: the obstetrician’s record showed medical malpractice and a misdemeanor sexual abuse of a child.

The plaintiff’s negligent credentialing claim was still not strong enough. As it happens, Montana’s Board of Medical Examiners (MBME) considered the obstetrician’s record and allowed him to keep his license (subject to certain limitations, with which he complied). The plaintiff, on the other hand, called no medical experts to dispute the MBME’s ruling that gave the obstetrician a second chance. The plaintiff’s negligent credentialing claim was therefore doomed to fail.

For that reason, presumably, the plaintiff decided to try her luck under Montana’s consumer protection statute as well. She argued that it was unfair on the part of the hospital to credential a substandard medical professional and let him deliver her baby. According to the plaintiff, this “unfair act or practice” violated Section 30–14–103 of Montana’s Consumer Protection Act.
This argument misconstrued the domain within which “unfair or deceptive acts or practices” are prohibited by the Montana statute. Under that statute, this domain encompasses “trade or commerce.” The Montana Supreme Court consequently ruled that only “the entrepreneurial, commercial, or business aspects of running a hospital are actionable under Montana’s Consumer Protection Act.” Credentialing of doctors by hospitals, held the Court, is not an entrepreneurial, commercial, or business activity. Consequently, hospitals are not accountable for doctors’ credentialing under the consumer protection law.

The Court’s decision relied on Washington law that adopted the same formulation for hospitals’ liability under the consumer protection law: see Jaramillo v. Morris, 750 P.2d 1301, 1304 (Wash.App.1988) (holding that plaintiff’s complaint against hospital is not actionable under the Consumer Protection Act because it implicated no “entrepreneurial aspects of the hospital’s business, such as billing”).

Notably, Washington Supreme Court delivered a decision similar to Brookins four years ago: Ambach v. French, 216 P.3d 405 (Wash. 2009). This decision explained that the Consumer Protection Act requires the plaintiff to “establish five distinct elements: (1) unfair or deceptive act or practice; (2) occurring in trade or commerce; (3) public interest impact; (4) injury to plaintiff in his or her business or property; (5) causation.” This explanation was followed by the Court’s ruling that personal injury is not damage to the plaintiff’s “business or property”; and so the financial loss resulting from one’s physical injury cannot be categorized as a business or property damage.

This ruling raises an interesting question: can a person who uses his or her body as a business asset—say, a model, an actor, a TV presenter, or a professional athlete—sue doctors and hospitals under the Consumer Protection Act for unsuccessful medical treatment? This route seems to be open for such a plaintiff when she complains that her decision to undergo the treatment (e.g., plastic or cosmetic surgery) was induced by the defendant’s misrepresentation or deceit. I might get back to this question on another occasion.

April 20, 2013

Prospects of Future Illness: Still Not Actionable

Gill v. Burress, 382 S.W.3d 57 (Ky. App. 2012)

In this well-reasoned decision, the Kentucky Court of Appeals (Judge Joy A. Moore) reaffirmed the well established principle that “prohibits the possibility of future harm from constituting an element of damages if that possibility is considered outside the realm of damages for mental anguish.”

The decision was made on the following facts:

A physician negligently failed to detect a cancerous mass in the plaintiff’s breast for approximately eighteen months. Then, the patient underwent an aggressive treatment that made her cancer free. Moreover, medical evidence indicated that the patient is at least seventy percent likely to remain cancer-free in the future. The patient still sought compensation for her residual 30% prospect of developing cancer in the future that allegedly resulted from the doctor’s malpractice.

The Court of Appeals upheld the circuit court’s determination “that any future medical treatment relating to a potential recurrence of cancer is non-compensable” because “Kentucky law allows a plaintiff to recover for damages only where the fact of damage is reasonably certain.” The Court also found “no error in the circuit court’s determination that [the plaintiff’s] decreased chance of remaining cancer-free is non-compensable.” The Court clarified in this connection that Kentucky law does not recognize “a decreased chance for long-term survival, or lost chance for recovery or a better medical result (due to negligence), as a compensable injury.” The Court analogized suits seeking compensation for the plaintiff’s increased risk of illness to suits seeking compensation for the plaintiff’s lost chances to recover from illness. The Court quoted with approval the decision of the Supreme Court of Delaware that “Since loss of chance and increased risk of harm both rely on similar theoretical underpinnings … it would not be coherent to adopt increased risk without also adopting loss of chance.” United States v. Anderson, 669 A.2d 73, 75–76 (Del. 1995).

The Court’s decision squarely aligns with the law.

But the law isn’t good. Here is why:

Consider Kentucky’s repose statute, Ky. Rev. Stat. Ann. § 413.140(2), that extinguishes medical malpractice suits five years after the patient’s negligent treatment by the doctor. Because the patient, Ms. Gill, has not yet developed a new breast cancer when she filed her suit against the physician, the court told her that she came in too early. Ms. Gill could not legally sue the physician while she remains cancer free: this is the legal rule in Kentucky and elsewhere. This rule tells Ms. Gill that she must wait and see whether she becomes afflicted again. But what if Ms. Gill develops another breast cancer five years and one day after she was negligently misdiagnosed by the physician? Under that scenario, if Ms. Gill decides to sue the physician, her suit would be dismissed under the repose statute because it was filed too late. The two rules thus effectively tell Ms. Gill that suing a doctor is never a good idea even when the doctor committed malpractice. See Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1255-56 (2012).

Oftentimes, a person facing a prospect of becoming seriously ill must take protective measures to minimize her risk of illness. These measures include periodic scans and medical monitoring, dietary and regimen adjustments, and even change of occupation and relocation to a better climate. Under extant law, not taking those measures often amounts to comparative (if not contributory) negligence and may even make the person’s subsequent illness an “avoidable consequence.” The person’s right to recover compensation form the doctor whose negligence exposed her to the prospect of future illness will consequently be reduced and perhaps even eliminated completely. If so, why not require the negligent doctor to pay the person for the protective measures she needs to take?

More fundamentally, why make a person negligently exposed by her doctor (or another wrongdoer) to a prospect of becoming seriously ill wait and see whether this prospect materializes? When the future illness is fatal, for example, expedited compensation would allow the victim to use the money during her lifetime. Also: as I already mentioned, some victims might be able to use their expedited compensation towards partial or complete cure; and they might also purchase a costly life and medical insurance.

Finally, the “wait and see” advice that the law presently gives to a potential victim fails to account for the risk of the wrongdoer’s insolvency and disappearance. When the victim does become ill, she may well find out that there is nobody for her to recover compensation from. For that reason, the “wait and see” rule ought to be accompanied with another rule that requires the wrongdoer to buy insurance covering the victim’s potential illness and losses resulting therefrom. The law’s failure to secure this insurance arrangement makes it strikingly imbalanced in defendants’ favor.

Remarkably, courts often count a tort victim’s prospect of future illness as a factor that aggravates her fear and anxiety and correspondingly increases her compensation for emotional distress. This increase, however, is not given automatically. Courts award it only when the victim is entitled to emotional-distress damages as a consequence of physical injury wrongfully inflicted upon her by the defendant: see Norfolk & Western Railway Company v. Ayres 538 U.S. 135 (2003). An interesting question that arises here is whether the future-illness increase should be given to a tort victim who deserves to recover compensation for free-standing emotional harm. This question arises in the medical malpractice area when a doctor owes her patient a direct duty to avoid causing the patient emotional distress.

For more details on all these issues, see my article with Ariel Porat, Liability for Future Harms, in Perspectives on Causation 221 (Richard S. Goldberg, ed., Hart Publishing, Oxford, 2011).

For an important recent development that took place in Minnesota on 5.31.2013, see here.