ISSUE 1:6, June 2013 – Recent Developments

June 27, 2013

Res ipsa loquitur under New York law of medical malpractice:

Of things that do NOT speak for themselves

James v. Wormuth, N.E.2d, 2013 WL 3213341 (N.Y. 2013)

The New York Court of Appeals has delivered today a casebook decision on the following set of facts:

During a biopsy of the plaintiff’s lung area, a localization guide wire was dislodged and the defendant surgeon was unable to locate it. He decided to keep the wire inside the plaintiff’s body because he believed it to be the best call under the circumstances. He also informed the plaintiff about that decision. Two months later, the defendant manage to locate and remove the wire with the use of a special x-ray machine known as a C-arm. Between the two surgeries, the plaintiff experienced pain and anxiety, for which she sued the defendant.

The plaintiff decided not to call an expert to testify about the applicable standard of practice. Instead, she claimed that her suit falls into the “foreign object” category governed by the res ipsa loquitur presumption. According to the plaintiff, this presumption should give her a jury trial.

The Court of Appeals disagreed: it reasoned—properly—that the “foreign object” rule doesn’t apply because the wire was not left in the plaintiff’s body unintentionally. Rather, it was designated to stay there by the defendant’s professional judgment. To prove that this judgment was a bad call, the plaintiff needed an expert witness. Without an expert, the jury could not properly evaluate the defendant’s professional judgment. The plaintiff therefore failed to establish the core element of res ipsa, namely, that the damaging event she came to court to complain about “is of a kind that ordinarily does not occur in the absence of someone’s negligence.”

Thus far, the Court’s reasoning was flawless. Based on that reasoning, the Court should have affirmed the direct dismissal of the plaintiff’s suit without further discussion.

But the Court didn’t stop here. It went on to say that the plaintiff also failed to establish another element of res ipsa: “exclusive control.” How come?

According to the Court, the defendant’s exclusive control wasn’t established because “several other individuals participated to an extent in the medical procedure.” This reasoning resembles the critique of the classic Ybarra decision (Ybarra v. Spangard, 154 P.2d 687 (1944)) that erroneously applied res ipsa to a medical procedure that involved eight professionals. But the present facts were different from Ybarra’s: in Ybarra, the court could not figure out who put the pressure against the patient’s shoulder, whereas in the present case, the court made a positive determination that it was the defendant who inserted the wire into the plaintiff’s body and decided to keep it there for two months.  Therefore, with all my respect to our highest court here in New York, I cannot agree with this part of its decision. So let’s call it an obiter!

June 20, 2013

Florida Supreme Court voids private arbitration agreement to adjudicate medical malpractice complaints

Franks v. Bowers,  So.3d , 2013 WL 3064807 (Fla. 2013)

Doctors attempted to force arbitration on their former patient’s widow, who sued them for her husband’s wrongful death claiming that he died due to the doctors’ surgical error. The doctors relied on an arbitration agreement that the patient signed prior to his first visit. The agreement capped the patient’s recovery for noneconomic damages at $250,000—four times below the statutory cap of $1,000,000. Florida’s Medical Malpractice Act (MMA) allows parties to arbitrate medical malpractice claims pursuant to a prior agreement that preserves the patient’s rights to compensation. Such agreements are valid and enforceable.

The Florida Supreme Court held that “Because the Legislature explicitly found that the MMA was necessary to lower the costs of medical care in this State, we find that any contract that seeks to enjoy the benefits of the arbitration provisions under the statutory scheme must necessarily adopt all of its provisions.” The Court also decided that the agreement’s under-compensation provision is not severable from the rest of the agreement. Correspondingly, it ruled that the entire agreement is invalid and unenforceable.

In my opinion, this decision squarely aligns with the Federal Arbitration Act, Section 2, as interpreted in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011). This section provides that a written arbitration agreement “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” An arbitration agreement formed in Florida must comply with the State’s statutory requirements for arbitration, including preservation of remedies. Failure to comply with these requirements is one of the “grounds as exist at law or in equity for the revocation of any contract” (University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993)).

My colleague, Myriam Gilles, an expert on FAA, believes that there is more room for private arbitration than allowed in today’s decision of the Florida Supreme Court.  See here and here.

June 20, 2013

Mixed news from the New Jersey Supreme Court:

Medical malpractice might give a windfall to reckless drivers, negligent contractors, and other tortfeasors unaffiliated with the health industry.

Town of Kearny v. Brandt, — A.3d —, 2013 WL 3064600 (N.J. 2013)

Consider a familiar scenario:

Your client was negligently hit by a driver on a highway and was taken to hospital. There, the ER doctors did not treat him properly and he became permanently incapacitated. The ER doctors’ mistake did not amount to gross negligence, and so you properly sue the reckless driver for your client’s full damage. You do not sue the hospital because, as a charitable institution, it operates under a statutory immunity that caps its liability for medical malpractice at a low sum ($250,000, as in New Jersey, or just $20,000, as in Massachusetts). You do not sue the ER doctors because they are protected by a limitations or repose statute that gave you and your client too short a window to file a suit. Alternatively, you did sue the ER doctors but the court dismissed your suit for failure to produce a “merit certificate” from an expert whose qualifications match the defendants’ (as in Nicholas v. Mynster, — A.3d —, 2013 WL 1760434 (N.J. 2013)).

The reckless driver does not dispute his negligence and the consequent liability for your client’s injury. Instead, he asks the court to apportion his liability in light of the hospital’s and the ER doctors’ fault.

Will this apportionment claim succeed?

In today’s decision, the New Jersey Supreme Court ruled that it will. The Court decided that the comparative negligence doctrine that applies in New Jersey (under a statutory scheme set by the Comparative Negligence Act and the Joint Tortfeasors Contribution Law) authorizes allocation of fault to an alleged tortfeasor who obtains a dismissal or exemption from tort liability for any reason except “where, as a matter of law, [he] could not under any circumstances be a joint tortfeasor [as in the case of] an employer subject only to an action under the Workers’ Compensation Act, and immunized from any action in tort.”

Because hospitals and doctors can, in principle, be liable in torts, their non-actionable malpractice would reduce the reckless driver’s liability in my example. This is what comes out from today’s decision of the New Jersey Supreme Court.

The Court rationalized this decision by saying that it “promotes fair allocation of responsibility and avoids creating an incentive for a plaintiff to strategically target only one of a range of culpable defendants” and that a defendant “should not be penalized by the dismissal of other tortfeasors.” This ruling expands a tortfeasor’s apportionment entitlement, given that New Jersey’s Comparative Negligence Act, N.J.S.A. 2A:15–5.2(a)(2), authorizes apportionment only to “the parties to a suit.”

Based on the Court’s ruling, when the faults of the reckless driver and the hospital are equal and your client’s damage is, say, $2,000,000, the driver and the hospital should pay your client $1,000,000 each. Alas, the hospital will pay your client only $250,000 pursuant to New Jersey’s charitable immunity; and so your client will recover $1,250,000 in total, instead of $2,000,000.
I don’t think that this outcome is right. After all, your client didn’t choose to become a charitable hospital’s patient. Rather, he was forced into that hospital by an uncharitably reckless driver. Under the conventional rules of causation, this driver is responsible for the client’s entire damage: his entitlement to apportionment is a special privilege. Moreover, under New Jersey’s statute, N.J.S.A. 2A:15–5.3(a), if the hospital were to cause your client a $250,000 damage, the reckless driver would not be allowed to apportion his liability as his fault would then cross the 60% threshold. Being responsible for “sixty percent or more” of your client’s damage, he would have to pay the client the full amount of compensation.

Here is my bottom line: the reckless driver should pay your client $1,750,000. The driver’s apportionment entitlement should not exceed the contribution amount he would receive from the hospital after paying your client the full amount of compensation ($2,000,000). From that amount, he should only be allowed to deduct $250,000—the maximal amount that the hospital can be obligated to pay under the charitable immunity. This immunity was designed to protect hospitals’ assets against dissipation, not to help reckless drivers to reduce their compensation duty to the injured victim.

As for the ER doctors’ liability, the reckless driver should be required to establish it—vis-à-vis your client—by satisfying every procedural, evidentiary and substantive requirement that applies in medical malpractice actions. The driver should prove the ER doctors’ malpractice in the same way in which your client would have to establish it in a separate suit against those doctors. Here, too, the principle is simple: an apportionment request that alludes to medical malpractice of a healthcare provider should only be granted within the limits set by the medical malpractice law. Failure to recognize this principle will water down the deterrence of reckless drivers and other tortfeasors and deny tort victims their redress.

The Court gave tortfeasors a broad entitlement to apportionment without introducing any of the abovementioned constraints. Let’s hope that it will do so in the future.

June 18, 2013

Statute of limitations: the “second opinion” exception to the fraudulent concealment rule

MacDowell v. Galant, — S.E.2d —, 2013 WL 2996206 (Ga. App. 2013)

This case involved a dental patient undergoing a full mouth prosthodontic reconstruction: a series of tooth extractions, implant surgeries, and other procedures that took over a year to carry out. One of the defendants, a dental surgeon, placed the implants improperly. Another defendant, a dental reconstruction specialist, decided not to tell the patient about that mistake and not to redo the implants because “with what this woman has been through, it’s enough.” The specialist endeavored to work around the difficulties with the existing implants, alas, unsuccessfully.

The patient came out of these procedures with a host of medical problems, to which she added a legal problem by suing her doctors after the expiration of Georgia’s two-year limitations period.  The patient asked the trial court and, subsequently, the Court of Appeals to toll the limitations period based on the “fraudulent concealment” rule. Specifically, she argued the specialist’s “failure to tell her of his opinion that the implants were improperly placed, particularly before they became integrated into the bone and much more difficult to remove” constituted fraudulent concealment.

The trial judge ruled that the tolling stopped when the patient sought a diagnosis from another doctor: the dental surgeon who misplaced the implants. The judge explained this ruling by saying that “once a plaintiff seeks the diagnosis or care of another doctor, she is no longer deterred from learning the true facts by any conduct of a defendant even if the other doctor consulted does not diagnose the medical problem as arising from the defendant’s improper treatment.”  Based on the patient’s visits to that doctor, the judge calculated that she filed her complaint too late.

The Court of Appeals reversed that decision. Because the doctor who gave the patient the post-treatment consultation was “one of [her] original treating physicians and … the very practitioner who allegedly placed the implants incorrectly,” the Court held that the patient “cannot be deemed to have sought an independent medical opinion such that she reasonably could have discovered her cause of action.” The Court explained that the “second opinion” exception to the fraudulent concealment rule applies only when the patient’s “purpose of seeking a second opinion is to overcome the alleged fraud that deters the patient from discovering the true facts.” The Court thus allowed the patient to toll the limitations period and proceed with her action.

The Court of Appeals’ decision is obviously correct. I decided to report it because it provides a much-needed authority for the proposition that a second opinion must be independent to counteract fraudulent concealment.

June 18, 2013

Mississippi’s $500,000 cap: arbitrary, but still constitutional

Clemons v. United States, _____ (S.D. Miss. 2013)

“All grief is not equal. All pain cannot be reduced to a one-size-fits-all sum. One cannot imagine what it is like to know that the doctor right in front of you, the one who is refusing to insert a chest tube into your body even as nurses beg her to provide that treatment, is causing you to die and killing your unborn baby as you are helpless to stop her. In Mississippi, though, one’s suffering at the hands of a health care provider is worth no more than half a million dollars, no matter how egregious, and no matter if your suffering leads to your death, your unborn child’s death, and leaves your children orphans. This is offensive.”

Judge Carlton W. Reeves wrote this paragraph in a very recent decision that applied Mississippi medical malpractice law in a suit adjudicated under the Federal Tort Claims Act.

The judge upheld the constitutionality of Mississippi’s $500,000 cap on noneconomic damages recoverable for medical malpractice, which he properly criticized as arbitrary. This cap applies indiscriminately to all cases: there is no statutory adjustment for egregious malpractice that kills or severely injures the victim. Astonishingly, Mississippi caps noneconomic damages recoverable for torts other than medical malpractice at $1,000,000. The $500,000 cap was legislated exclusively for medical malpractice cases. Because this cap protects the entire medical industry rather than an individual entity or person, Judge Reeves decided that it does not violate Mississippi’s constitutional prohibition of special laws. The judge also Erie-guessed that the Supreme Court of Mississippi would find in that cap no violation of due process or equal protection.

June 13, 2013

Medical Malpractice or Simple Negligence? A Redux

Littlepaige v. United States, 2013 WL 2501744 (4th Cir. 2013)

Veterans hospital in North Carolina admitted for treatment a Korean war veteran suffering from dementia. The patient was placed on a “falls precaution” that included special care and observation to prevent him from falling to the ground while hospitalized. Allegedly, the hospital’s staff have failed to implement this precaution. As a result, the patient fell on the floor and fractured his hip.

The suit making this allegation was filed to federal court under FTCA. Contrary to North Carolina law, the plaintiff (the patient’s widow) submitted no certification from a qualified medical expert. The plaintiff argued that she is exempt from the certification requirement because her suit sounds in general negligence, rather than medical malpractice, and/or pursuant to the res ipsa loquitur presumption.

Expectedly, this familiar recharacterization attempt did not work: the district court dismissed the suit.

On appeal, the Fourth Circuit delivered a well-reasoned majority decision that affirmed this result. The Circuit explained that, under North Carolina law, “Corporate negligence actions brought against hospitals which pertain to clinical patient care sound in medical malpractice, while such actions which arise out of policy, management, or administrative decisions sound in ordinary negligence” and that “Examples of policy, management, or administrative decisions include granting or continuing hospital privileges, failing to monitor or oversee performance of the physicians, credentialing, and failing to follow hospital policies”  (quoting Estate of Waters v. Jarman, 547 S.E.2d 142, 145 (N.C. Ct. App. 2001).  Based on this distinction, the Circuit properly classified the plaintiffs’ complaint as falling into the “clinical patient care” category that requires certification.

The Circuit also ruled that the res ipsa loquitur presumption cannot help the plaintiff because “North Carolina courts have … articulated a bright-line rule that a malpractice claim may not be brought on a theory of res ipsa loquitur unless the facts alleged are such that the negligence complained of must be of the nature that a jury—through common knowledge and experience—could infer.” Under this rule, “a plaintiff must allege facts from which a layperson could infer negligence by the defendant based on common knowledge and ordinary human experience.” The Circuit decided that the plaintiff’s suit did not satisfy this rule because “the facts alleged, even when construed liberally, are not such that a layperson could infer negligence on the part of the VA Hospital based on common knowledge.”

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). For a similar and more recent decision that applied the same distinction, see Estate of Ray ex rel. Ray v. Forgy, 2013 WL 1876755 (N.C. App. 2013). See also my discussion of this decision here.

The dissenting judge categorized the plaintiff’s suit as sounding in ordinary negligence, but I do not find his reasoning persuasive.

June 6, 2013

Oklahoma Supreme Court voids the affidavit-of-merit requirement for suits alleging professional negligence, holding that this requirement violates the constitutional prohibition of special laws and creates an unconstitutional burden on access to courts

Wall v. Marouk, — P.3d —, 2013 WL 2407160 (Okla. 2013)

The previous version of Oklahoma’s affidavit-of-merit requirement, limited to medical malpractice suits, was found unconstitutional in Zeier v. Zimmer, Inc., 152 P. 3d 861 (Okla. 2006). The current version extended to all suits asserting professional negligence. This version was challenged by a medical-malpractice plaintiff whose suit against a physician was not accompanied by a merit affidavit from a qualified expert. The plaintiff alleged that the physician caused him permanent injury during surgery (loss of feeling in right fingers) by negligently cutting the median nerve in his right arm.  The trial court ruled that the plaintiff must submit the required affidavit within twenty days or face dismissal.

The Oklahoma Supreme Court voided this requirement for being as unconstitutional as the previous one.  The Court ruled that the requirement arbitrarily separates suits that allege professional negligence from other civil actions, in which plaintiffs do not bear the costly burden of obtaining expert review prior to proceeding. This disparate treatment, explained the Court, discriminates against victims of professional misconduct.

The Court also ruled that the merit affidavit requirement creates an unconstitutional burden on access to the courts. The Court estimated that the cost of obtaining an expert opinion to support the required affidavit of merit may range from $500 to $5000, well above the benchmark that it previously found constitutional as a court fee ($349). This burden, held the Court, is too heavy.

At the beginning of its decision, the Court noted that “The Oklahoma Constitution is a unique document” as “some of its provisions are unlike those in the constitutions of any other state, and some are more detailed and restrictive than those of other states.”  By making this point, the Court indicated that it is well aware of the fact that its decision is a constitutional outlier: the prevalent view across the states holds that merit affidavit requirements are constitutional.

The uniqueness of Oklahoma’s Constitution makes it difficult for an outsider law professor to comment on the Court’s decision. With this caveat in mind, I still fail to understand the Court’s economic analysis of the merit affidavit requirement. The statute that the Court pronounced unconstitutional required plaintiffs to procure expert testimony well before trial. This requirement imposes a financial burden on medical-malpractice (and other) plaintiffs. However, when a case goes to trial—which happens whenever the defendant claims that the suit has no merit—the plaintiff must procure expert testimony and pay for it anyway. The condemned statute merely required plaintiffs to upfront their expenditure on expert testimony.

I can’t see how this impedes access to the courts. The right comparison here is not between the expert’s $5000 fee and the Court’s constitutionality benchmark for fees, $349.  Rather, the right comparison here is between the $349 benchmark and the interest accruable on $5000 for the period separating the trial from the filing of the plaintiff’s suit. When an individual makes, say, a two-year deposit of $5000 in an interest bearing savings account, she hardly earns $349.  If so, the merit affidavit requirement is not as onerous as estimated by the Court. At the same time, it promotes an important social interest by screening away unmeritorious suits that waste public resources and in more extreme scenarios drive up the cost of medical care.

Furthermore, as noted by Justice Steven Taylor in his dissent, the condemned statute exempted indigent plaintiffs from the duty to submit a merit affidavit. This exemption protected Oklahomans’ access to justice well enough.

June 6, 2013

Texas Court of Appeals upholds the constitutionality of the statute giving a Good Samaritan immunity to emergency care providers

Gardner v. Childrens Medical Center of Dallas — S.W.3d —, 2013 WL 2389854 (Tex. App. – Dallas)

Section 74.154 of the Texas Civil Practice and Remedies Code exempts providers of hospital emergency care from liability for malpractice that falls below “willful and wanton negligence.”  This exemption parallels the “Good Samaritan” immunity granted by many states to unpaid providers of medical care (see, e.g., Chamley v. Khokha, 730 N.W.2d 864 (N.D. 2007) (both actual and expected remuneration preclude medical care providers from claiming immunity under North Dakota’s Good Samaritan Act)).

This exemption was challenged by the parents of a child whose treatment in a hospital emergency room resulted in brain damage, cerebral palsy and blindness. They argued that the exemption violates equal protection and is therefore unconstitutional. The parents first made this argument at the trial, urging the judge not to give jurors the “willful and wanton” instruction. The judge decided to give the instruction as required by the statute. The jury returned a verdict for the defendants, and the parents appealed. Their equal protection challenge was based on the fact that the statute singled out hospital emergency personnel as its sole beneficiary. Other providers of emergency care did not receive the special exemption.

The Texas Court of Appeals (Dallas) ruled that the exemption is constitutional and dismissed the appeal. The court reasoned that extending a Good Samaritan immunity to emergency care providers allows those providers to purchase insurance against malpractice liability at an affordable price. Affordable insurance incentivizes physicians and other medical personnel to do emergency work under difficult conditions. As the court explained, “emergency room physicians [are] required to treat anyone who walked into an emergency room, often without benefit of medical history, and under extreme time pressure.” The court wasn’t troubled by the statute’s differentiation between patients receiving emergency care in a hospital emergency room and patients that receive emergency medical care in a non-covered setting. The court decided that this disparate legal treatment does not fail the requisite rational-basis review even though it produces “some inequity” on the ground.

June 1, 2013

A patient’s decreased chance to survive or recover held actionable as a standalone damage

Dickhoff v. Green, — N.W.2d —, 2013 WL 2363550 (Minn. 2013)

On May 31, 2013, the Supreme Court of Minnesota has delivered an immensely important decision: it recognized as actionable a patient’s increased risk of dying resulting from her doctor’s negligent failure to secure timely diagnosis and treatment of cancer.
The defendant doctor was a family practice physician, and the patient was a baby. The baby had a lump on her buttock.  According to the plaintiffs—the baby’s parents—the doctor saw, but did nothing about, the lump at the baby’s 2-, 4-, 6-, and 9-month well-baby checks. The doctor first documented the lump’s presence on the baby’s medical chart and referred her to a specialist only at the 1–year well-baby check. Shortly thereafter, the baby was diagnosed with alveolar rhabdomyosarcoma (ARS)—a rare and aggressive childhood cancer. Following this diagnosis, she underwent a tumor-removal surgery, chemotherapy and radiotherapy, but remained dangerously ill.

The parents’ malpractice allegations against the doctor were supported by two medical experts: a family physician and a pediatric hematologist/oncologist. The hematologist/oncologist estimated that the baby’s early referral for treatment by specialists (similar to the treatment she received belatedly) would have given her, at a minimum, a 60% chance to survive the illness, and that the defendant’s failure to make that referral—separately identified as malpractice by the family physician—had reduced this chance to 40%.

The Minnesota Supreme Court ruled that the reduction in the patient’s chances to survive her illness constitutes actionable damage in and of itself.  More generally, the Court decided that a wronged patient can successfully sue her doctor for an increased risk of not recovering from the underlying illness and for a decreased life expectancy as a standalone damage. There is only one limitation to this new cause of action: the patient’s increased risk and decreased life expectancy must be substantial, rather than de minimis.

On the way to this conclusion, the Court reasoned that the “lost chance” doctrine is necessary for properly compensating tort victims and deterring potential wrongdoers. The Court also noticed that medical science makes the doctrine workable by providing statistical information that courts can depend upon. Finally, the Court overruled Fabio v. Bellomo, 504 N.W.2d 758, 762–63 (Minn. 1993)—a decision that refused to recognize an aggrieved patient’s future-illness prospect as an actionable standalone damage.

The Court has established the lost-chance doctrine for Minnesota in its broadest format. Thus far, courts recognizing the doctrine have limited its applicability to cases involving an already-injured patient, proven malpractice, and uncertain causation. Under this set of facts, the wronged patient is often unable to causally connect her injury to the doctor’s malpractice. The traditional preponderance-of-the-evidence requirement consequently dooms the patient’s suit (unless the patient can prove that she had a more than 50% chance of being cured by the proper treatment). To secure fairness to the patient and avoid the erosion of the doctors’ incentive to deliver proper treatment, courts have allowed the wronged patient to recover from the negligent doctor probabilistic compensation.  The amount of that compensation equals the chance of complete or partial cure that the doctor’s malpractice denied the patient multiplied by the patient’s total damage.

The Court could easily categorize Dickhoff v. Green as a past-injury case. According to the plaintiffs, their daughter’s cancer became more severe and more acute than it would have been under the proper-treatment scenario. The monetary value of that aggravated affliction therefore must include the 20% (if not greater) reduction of her chances to survive. By taking this path, the Court could have bypassed the need to repeal FabioFabio was a future-injury case: there, the Court proceeded on the assumption that the plaintiff seeks compensation for her chances of developing breast cancer in the future after she was cured and became cancer-free.

Based on the work I coauthor with Ariel Porat, I believe that the Court’s broad formulation of the lost chance doctrine was right. Tort victims should be entitled to recover compensation for their increased chances of dying or becoming incurably ill. To give just a few justifications for that claim:

(1) As acknowledged by the Court in the Dickhoff case, any substantial increase in a person’s chances of dying or becoming dangerously ill erodes her well-being.

(2) Oftentimes, the aggrieved person needs money to pay for medical treatments that slow down the deterioration of her condition and prolong her life.

3) By the time that the person’s prospect of death (or injury) materializes, the wrongdoer may become judgment-proof or immune against suit under the statute of repose.

Finally, anyone who reads the Court’s decision will be amazed by the bravery, perseverance and spirit of the patient, Jocelyn Dickhoff, who will soon be seven years old.  Jocelyn is a hero and I pray for her recovery.