ISSUE 1:5, May 2013 – Recent Developments

May 30, 2013

Wyoming’s Supreme Court delivers an important decision on the statute of limitations and the “continuous treatment” rule

Nobles v. Memorial Hosp. of Laramie County, 2013 WL 2303241 (Wyo. 2013)

Two days ago, the Supreme Court of Wyoming delivered an important and well-reasoned decision explaining the “continuous treatment” rule that tolls the statute of limitations.

Every lawyer interested in medical malpractice must read this decision: it cannot be missed!

The case before the Court featured a patient hospitalized in an intensive care unit with a diagnosis of acute respiratory failure resulting from pneumonia. While in the unit, the patient developed complications that were treated successfully by the medical staff. The staff also successfully treated the patient’s respiratory failure and significantly improved his condition.

But not everything went well. According to the patient, a hospital employee attempted to move him in bed by pulling, tugging, or twisting on his right arm. As a result, the patient developed acute pain and dysfunction in his shoulder: allegedly, the nerves in his shoulder had been torn apart, resulting in an incurable brachial plexus injury. The patient sued the hospital for that injury, arguing that it resulted from the employee’s malpractice, for which the hospital was vicariously responsible.

The patient filed this suit on March 11, 2010: more than two years after February 19, 2008—the day on which he was transferred from the intensive care unit, where the alleged malpractice occurred, to a different ward at the same hospital. Under Wyoming’s statute of limitations, medical malpractice suits can only be filed within two years from the day of the defendant’s allegedly negligent act or omission. The day on which the patient sustains injury as a result of that act or omission—and her cause of action consequently accrues—is immaterial. This provision introduces into the statute a rigid repose mechanism that other states combine with longer windows for filing suits (typically, four or five years).

Wyoming’s Supreme Court, however, recognizes the “continuous treatment” rule (Metzger v. Kalke, 709 P.2d 414 (Wyo. 1985)), as do many other courts across the country. Under this rule, “the act, error or omission which starts the running of the statute of limitations against medical malpractice actions is the termination of the course of treatment for the same or related illnesses or injuries.” Metzger, at 417. Hence, “where the defendant physician has provided a continuing course of care for the same or related complaints, the cessation of treatment completes the “act” which starts the running of the statutory period for filing suit.” Nobles, at *4.

This rule’s rationale is well articulated in the Nebraska Supreme Court’s decision in Williams v. Elias, 1 N.W.2d 121, 124 (1941):

“In the treatment of a patient the diagnosis might change from time to time, and it is commonly accepted in the medical profession that the diagnosis, in the first instance, is not binding on the physician.  He should have the right, during the course of treatment, to change the diagnosis. … The diagnosis referred to was a continuing biweekly one, and each time an incorrect diagnosis was made and an incorrect treatment applied, plaintiff’s injuries were extended. It was not the error in the diagnosis originally made by defendant but its adherence thereto and course of treatment that brought about the injuries.”

By the same token, a doctor may also try different treatments and medications to resolve the patient’s problem.  The doctor’s need to make those adjustments over the course of treatment makes it legitimate—if not mandatory—for the patient to let the treatment run its course before suing the doctor.

In the Nobles case, the patient asserted that the hospital continued treating him for the alleged injuries to his arm and shoulder until his discharge from the hospital on March 15, 2008.  Under this theory of the case, the patient’s ability to sue the hospital and its staff did not expire.  The patient managed to bring his case within the continuous treatment rule.

The hospital, however, argued that the rule was still inapplicable because Mr. Nobles had “knowledge of his cause of action prior to February 19, 2008, and certainly prior to March 11, 2008.”  The Court found this argument wrongheaded because the hospital took care of the patient’s arm and shoulder problem until March 15, 2008.  The patient knew about it as well and gave the hospital and its staff the chance to fix the problem.  In the Court’s words,

“The Hospital focuses solely on the pulling and twisting of Mr. Nobles’ right arm, and contends that the pulling and twisting was the act triggering the running of the statute of limitations. Under the continuous treatment rule, however, the act was not completed the moment the Hospital employee stopped the pulling and twisting. As we said in Metzger, 709 P.2d at 417, “the cessation of treatment completes the ‘act’ which starts the running of the statutory period for filing suit.” The act was not completed until the termination of the Hospital’s treatment of the shoulder and arm. There is evidence in the record supporting Mr. Nobles’ contention that such treatment did not end until the day of his discharge.” Id. at *6.

The hospital also tried to convince the Court to adopt the “single act” exception to the continuous treatment rule that applies in Minnesota: Swang v. Hauser, 180 N.W.2d 187, 189–90 (Minn. 1970). Under this exception, “the cause of action begins to run at the time of the negligent act (and not at the end of the course of treatment) when the alleged tort consists of (1) a single act; (2) which is complete at a precise time; (3) which no continued course of treatment can either cure or relieve; and (4) where the plaintiff is actually aware of the facts upon which the claim is based; that is, the plaintiff is aware of the malpractice prior to the end of treatment.” Id. at *11.

The Court declined to introduce the “single act” exception into Wyoming’s law of medical malpractice. The Court reasoned that this exception is “at odds with our precedent,” “difficult to apply,” and that it also “leads to confusion rather than predictability.” Id. at *12.  Separating a “single” and “complete” act of negligence from a series of treatment and diagnostic procedures directed at the same end is well nigh impossible. Establishing that no continued course of treatment can cure or relieve the damage is equally hard: “unless a patient dies immediately as a result of the malpractice, some form of follow-up treatment will likely be given in every case.”  Id. at *14.

The Court therefore ruled for the patient and remanded the case for further proceedings.

This decision is impeccable. One of the best ones I read.

May 28, 2013

Can positive peer-review determination “poison” a jury?

Bridenstine v. Saint Francis Hosp., 2013 WL 2182303 (Conn. App. 2013)

This seems like a pretty wild proposition, but the Connecticut Court of Appeals thought differently.

Connecticut’s peer review privilege, General Statutes § 19a–17b (d), holds that “The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings…”

This privilege was at play in a suit that attributed malpractice to a surgeon for failure to control her patient’s postoperative complications that resulted in the patient’s death. The surgeon’s attorney asked her the following series of questions:

Q: During the course of this entire litigation, from the time you were named a defendant up until today, has any one of the attorneys for the decedent ever asked if your care of the decedent was reviewed and evaluated at St. Francis Hospital?

A: No.

Q: Was it?

A: Yes, it was.

Q: What was it?

At this point, the trial judge stopped the attorney’s questioning about the peer review decision.

After trial, the jury returned a verdict in the surgeon’s favor.

The plaintiffs moved for a new trial arguing that the surgeon’s attorney “poisoned” the jurors by improperly conveying to them that the surgeon was cleared by her peers and that the plaintiffs nevertheless chose to sue her for malpractice.

The trial judge agreed with the plaintiffs and ordered a new trial.  This decision was upheld on appeal. The Court of Appeals held that —

“The trial court was in the best position to sense the atmosphere of the trial and to assess its probable effect of the improper questioning and its implications on the jury’s deliberative process. On that basis, it determined that the plaintiffs had been prejudiced by the questioning, and thus that they were entitled to a new trial. Because the trial court’s judgment must be afforded great weight, and this court is in no position to second guess its carefully considered ruling, we cannot conclude that the court erred in finding that the plaintiffs were prejudiced and were deprived of a fair trial.”

I find it hard to believe that positive peer-review information can prejudice jurors. At the same time, the defendant’s attempt at prejudicing the jury deserved punishment.

May 20, 2013

Kansas Court of Appeals applies the “common knowledge” exception to the expert witness requirement

Hubbard v. Mellion, 2013 WL 2129104 (Kan.App. 2013)

This case features a patient who underwent surgery to fix herniated disc. During the surgery, the tip of a surgical forceps, a rongeur, broke off in the patient’s disc space. The surgeon attempted to retrieve the broke tip but was unable to do so. The tip caused the patient serious complications and pain.

The patient sued the surgeon for malpractice without submitting medical expert testimony. Instead, she adduced the expert opinion of a Ph.D. metallurgist engineer, who examined the broken rongeur in his lab and ruled out the possibility that its tip broke off due to a manufacturing defect, improper maintenance, or wear and tear. To this testimony, the court added an experience-based observation that properly manufactured rongeurs generally do not break without users’ negligence. The patient consequently managed to establish res ipsa loquitur: the instrumentality that caused her injury was under the surgeon’s exclusive control; some unspecified negligence on the surgeon’s part was the most likely explanation of the accident; and the patient did nothing to contribute to her own injury.

Based on these findings, the court ruled that the patient’s suit should go to the jury that will use common knowledge to adjudicate the malpractice allegation.

This decision may seem obvious, but it isn’t. For example, the Michigan Supreme Court had refused to apply the “common knowledge” exception to a case in which one-half to two-thirds of a surgical needle broke off and lodged somewhere within the patient’s muscle: see Locke v. Pachtman, 521 N.W.2d 786 (Mich. 1994).

May 9, 2013

Suits against hospitals that allege negligent credentialing of doctors and other administrative misconducts are to be decided by ordinary negligence principles – says the North Carolina Court of Appeals

Estate of Ray ex rel. Ray v. Forgy, 2013 WL 1876755 (N.C.App. 2013)

This case involved negligent-credentialing allegations against hospital.  The plaintiffs claimed that the hospital was negligent in that it granted staff privileges to a surgeon without investigating his malpractice history.  The plaintiffs’ suit was not certified by a qualified medical expert, contrary to North Carolina’s pleading requirement for medical malpractice actions (N.C.G.S. § 1A–1, Rule 9(j)). The trial judge consequently granted the hospital’s motion for summary judgment, but this victory was short lived. The North Carolina Court of Appeals reversed the trial judge’s decision and reinstated the suit.

The Court held that suits against hospitals that allege negligent credentialing of doctors (and other staff) do not require certification by medical experts. Based on its previous ruling in Estate of Waters, 547 S.E.2d 142, 145 (N.C.App. 2001), the Court reasoned that when a corporate negligence claim does not arise out of clinical care, but rather “out of policy, management or administrative decisions, such as granting or continuing hospital privileges, failing to monitor or oversee performance of the physicians, credentialing, and failing to follow hospital policies, the court should apply the ordinary negligence principles and the “reasonably prudent person” standard” rather than defer to doctors. The certification requirement consequently does not apply.

This decision aligns with my distinction between “treatment rules” and “setup rules”: see Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201, 1229-32 (2012).

May 4, 2013

Kansas Supreme Court Interprets Statute of Limitations

Martin v. Naik, 2013 WL 1850661 (Kan. 2013)

This happened in a medical malpractice action arising from a hospital doctor’s and nurses’ alleged failure to give proper treatment to a diabetic patient, who was acutely ill when he was admitted to the hospital. The alleged negligence occurred on April 8, 2004. The patient died on October 25, 2004. Kansas’s limitations statute provides a 2-year window for filing medical malpractice suits—a period that must be counted from the date of accrual of the plaintiff’s cause of action. The action was filed on October 25, 2006. This action was twofold: the patient’s widow sued the defendants for wrongful death damages, and the patient’s estate filed a survival action for the harm suffered by the patient while he was still alive.

The Court decided that the survival action is barred by the statute of limitations because it was filed 2.5 years after the accrual of the cause of action on April 8, 2004. The estate asked the Court to toll the limitations period till the patient’s death, as the patient was incapacitated between April 8, 2004 and the day on which he passed away, October 25, 2004, but the Court denied this request. The Court held that, since “the legislature stated an objective standard when it provided that a cause of action accrues at the time of the occurrence of the act giving rise to the cause of action “unless the fact of injury is not reasonably ascertainable,” … the fact a particular patient is incapacitated, which would be a subjective factor, does not affect whether the fact of injury was reasonably ascertainable.” Based on this interpretation of the statute, the Court ruled that the patient’s injury was reasonably ascertainable on April 8, 2004.
This decision does away with the “discovery rule” that permits tolling of the limitations period. The Court could interpret the statute as tolling the limitations period when “the fact of injury is not reasonably ascertainable” by a person in the patient’s condition. This interpretation aligned with the language of the tolling provision that prescribes that “the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party.” Alas, the Court chose not to go this way.

The Court also decided that the widow’s wrongful death action is not time-barred because “a cause of action for wrongful death accrues on the date of death unless information regarding the fact of death or the wrongful act that causes the death was concealed, altered, falsified, inaccurate, or misrepresented.” The Court reasoned that, since anticipatory wrongful death is not actionable, the limitations period cannot start running prior to the patient’s death. In the case at hand, the patient died on October 25, 2004. Hence, the limitations statute allowed the widow to file her suit on October 25, 2006.

May 1, 2013

Arkansas Supreme Court voids the “same specialty” requirement for malpractice experts for violating separation of powers

Broussard v. St. Edward Mercy Health System, 386 S.W.3d 385 (2012)

According to the Arkansas Supreme Court, any expert with requisite knowledge is eligible to testify in medical malpractice and other cases.

This important decision flew under my radar. Recently, Arizona’s Supreme Court upheld the constitutionality of a similar statute. See here.

I am not going to argue with Arkansas’s Chief Justice about the meaning of “separation of powers” under Arkansas’s Constitution, but his decision that “Procedural matters lie solely within the province of this court” and that “the General Assembly lacks authority to create procedural rules” (at p. 389) strikes me as too sweeping. Under medical malpractice law, procedural and substantive rules operate in tandem to promote the chosen state policy: for full explanation, see my article Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201 (2012). If so, the General Assembly should be able to adjust evidentiary and procedural rules towards accomplishing its substantive policy with respect to medical liability.

Importantly, expert witness requirements for medical malpractice cases are generally considered “substantive” rather than “procedural”: see, e.g., Creekmore v. Maryview Hosp., 662 F.3d 686, 690 (4th Cir. 2011); Legg v. Chopra, 286 F.3d 286, 291 (6th Cir. 2002).  Arkansas’ Supreme Court departed from that traditional view.