ISSUE 1:8, August 2013-Recent Developments

August 31, 2013

“Similar,” “Specialize” and “Specialty”

Edwards v. Sunrise Ophthalmology ASC, — So.3d —, 2013 WL 4525599 (Fla.App. 4 Dist. 2013)

This decision adjudicated an appeal from an order dismissing the plaintiff’s medical malpractice action against an ophthalmologist and his employer due to her failure to obtain a written opinion from an expert specializing in a field similar to the defendant’s specialty. The plaintiff alleged that she contracted a rare bacterial infection as a result of lower eyelid surgery improperly carried out by the defendant. Specifically, she claimed that the defendant did not use proper sterilization techniques. 

To establish this claim, the plaintiff produced an opinion from an infectious disease doctor. The plaintiff relied on Weiss v. Pratt, 53 So.3d 395 (Fla.App. 4th Dist. 2011) – a decision that allowed an emergency room physician to testify against an orthopedic surgeon on how to move an injured football player from the field. The appellate court ruled that the Weiss holding was narrow in that it applied only to the emergency part of the patient’s treatment by the orthopedic surgeon. As a general rule, the plaintiff expert’s specialty must align with the defendant’s specialty. Absent this alignment, the expert would not be qualified to testify about the applicable standard of care.  The court illustrated this generally accepted rule by Barrio v. Wilson, 779 So.2d 413 (Fla.App. 2d Dist. 2000) – a decision holding that a pulmonologist was not qualified to testify against an emergency room physician.

Based on this analysis of the law, the court decided that the infectious disease doctor called by the plaintiff was not qualified to testify about medical norms followed by ophthalmologists.

The dissenting judge has opined that people’s constitutional right to access to courts calls for a broader interpretation of the alignment rule. This opinion resonates with the Oklahoma Supreme Court decision, Wall v. Marouk, — P.3d —, 2013 WL 2407160 (Okla. 2013), that I discuss here. I believe that it takes the access-to-courts entitlement too far. This entitlement does not allow a plaintiff to establish an element of her suit – here, the requisite care standard – by evidence that the law deems irrelevant or unsafe to rely upon.

August 31, 2013


“Medical Malpractice” or “Regular Negligence”?  News from New Mexico

Richter v. Presbyterian Healthcare Services, — P.3d —, 2013 WL 4517165 (N.M.App. 2013)

As I mentioned in my prior posts – hereherehere, and here – categorization of a tort action as a suit for “medical malpractice” as opposed to regular 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.

In the present case, a lab’s failure to promptly deliver alarming test results to a patient’s doctors was categorized as “regular negligence” rather than “medical malpractice.” This categorization originated from the court’s adoption of the “functional test” borrowed from the Nebraska Supreme Court’s decision, Marx v. Hartford Accident & Indemnity Co., 157 N.W.2d 870, 871-72 (Neb. 1968), that defined “professional services” as follows:

“Something more than an act flowing from mere employment or vocation is essential. The act or service must be such as exacts the use or application of special learning or attainments of some kind…. In determining whether a particular act is of a professional nature or a ‘professional service’ we must look not to the title or character of the party performing the act, but to the act itself.”

Based on this categorization, the court allowed the plaintiff to proceed on some of his claims “relying on an ordinary negligence theory and eschewing expert testimony.”

August 31, 2013

Bypassing Damage Caps

Damage caps are widespread. A typical cap provision precludes medical malpractice victims from recovering more than a specified sum for pain, suffering and other noneconomic harms. These caps vary between $250,000 (as in California that might soon increase its cap by a referendum) and a $1,500,000-$500,000 scale (as in Florida). Some state supreme courts (e.g., Georgia, Illinois, and Wisconsin) voided the caps as unconstitutional, but many others (e.g., Alaska, California, Louisiana, Mississippi, Nebraska, Ohio and West Virginia) have upheld their constitutionality. In a few states (e.g., Florida and Texas), statutory caps had to be corrected to secure their alignment with state constitutions.

Damage caps are controversial.  Some people believe that they help contain the costs and secure the affordability of medical care. Others believe that caps shortchange malpractice victims and weaken the deterrence of malpractitioners. People falling into the first group generally support tort reforms. People falling into the second group ardently oppose those reforms. For my middle-way position—that supports procedural tort reforms that block away unsubstantiated malpractice suits, while opposing damage caps and othersubstantive tort reformssee here.

The plaintiffs bar expectedly tries to bypass the caps: see Catherine Sharkey’s important article that identifies the “crossover” dynamic: Facing caps on their clients’ noneconomic recovery, patients’ attorneys boost and vigorously pursue their clients’ claims for economic damages with the jurors’ blessing and approval.

Another, relatively recent, way of bypassing the cap is splitting the “occurrence” or “event” of medical malpractice into several events or occurrences. When successful, this strategy doubles, or more than doubles, the recoverable compensation amount.

For example, the plaintiff’s attorneys in a Missouri case, Scott v. SSM Healthcare, St. Louis, 70 S.W.3d 560 (2002), have persuaded the court that “occurrence” refers to a single act, or instance, of medical malpractice. As a result, two separate acts of malpractice, committed by two different doctors at the same hospital, have doubled the plaintiff’s compensation amount for his noneconomic harm: the plaintiff was awarded $1,056,000 instead of a single statutory amount of $528,000. The court rejected the defendant’s interpretation of “occurrence” as referring to the plaintiff’s total damage.

A few weeks ago, the “occurrence” issue was decided by the Supreme Court of Pennsylvania: Kinney–Lindstrom  v. Medical Care Availability and Reduction of Error Fund, — A.3d —, 2013 WL 4410996 (Pa. 2013). Pennsylvania’s Medical Care Availability and Reduction of Error Act of 2002 limits an aggrieved patient’s recovery to $1,000,000 per “occurrence” of medical malpractice. This limit was set for payments coming from the government’s fund that supplements the primary insurance coverage of participating healthcare providers.

The plaintiff was a mother of twins who suffered serious injuries as a result of a doctor’s prenatal neglect: failure to diagnose and treat the plaintiff’s infection while she was pregnant with the twins. The fund conceded that the doctor was negligent, but argued that this negligence amounted to a single occurrence, which should cap the plaintiff’s compensation at $1,000,000.  The plaintiff, for her part, argued that she and her twins had suffered from two occurrences of medical malpractice; and so she should recover $2,000,000 (following the jurors’ assessment of the twins’ injuries at $13,150,000).

The Court rejected the plaintiff’s effect-based interpretation of “occurrence” (favored by the defendant in the abovementioned Missouri case). The Court also rejected the argument that “occurrence” should be construed broadly in order to expand an aggrieved patient’s entitlement to compensation. Based on the legislative language and history, the Court adopted the cause-based interpretation under which a single act of malpractice constitutes one “occurrence” even when it injures multiple victims.

In the case at bar, the plaintiff argued that she and her twins are entitled to a $2,000,000 compensation even under the “cause” approach. Specifically, she claimed that her evidence demonstrated that the “twins were subjected to different infectious organisms at different times, which the doctor discretely failed to diagnose and treat.” According to the plaintiff, there were two separate occurrences of medical malpractice that caused distinct injuries to each twin.
The Court remanded the case with instructions to adjudicate the plaintiff’s claim under the “cause” approach.

Remarkably, Florida statute, West’s F.S.A. § 766.118, settles the “occurrence” issue by capping “the total noneconomic damages recoverable from all [defendants] regardless of the number of claimants.” In my opinion, this provision can still be challenged on constitutional grounds.

From a deterrence perspective, the Missouri-Pennsylvania approach seems preferable. As far as compensation is concerned, because cap amounts generally undercompensate victims, courts will do well to interpret “occurrence” in a way that increases the deserving victim’s compensation.

August 23, 2013

What Constitutes an “Occurrence” of Medical Malpractice for Damage Caps’ Purposes?

Kinney–Lindstrom  v. Medical Care Availability and Reduction of Error Fund, — A.3d —, 2013 WL 4410996 (Pa. 2013)

This decision of the Pennsylvania Supreme Court determined the meaning of “occurrence” for purposes of statutory caps on malpractice damages. In the case at bar, the Medical Care Availability and Reduction of Error Act of 2002 limited an aggrieved patient recovery to $1,000,000 per “occurrence” of medical malpractice. This limit was set for payments coming from the government’s fund that supplements the primary insurance coverage of participating healthcare providers.

The plaintiff was a mother of twins who suffered serious injuries as a result of a doctor’s prenatal neglect: failure to diagnose and treat the plaintiff’s infection while she was pregnant with the twins. The fund conceded that the doctor was negligent but argued that this negligence amounted to a single occurrence, which should cap the plaintiff’s compensation at $1,000,000.  The plaintiff, for her part, argued that she and her twins had suffered from two occurrences of medical malpractice; and so she should recover $2,000,000 (following the jurors’ assessment of the twins’ injuries at $13,150,000).

The Court rejected the plaintiff’s effect-based interpretation of “occurrence” along with the claim that “occurrence” should be construed broadly in order to expand an aggrieved patient’s entitlement to compensation. Based on the legislative language and history, the Court adopted the cause-based interpretation under which a single act of malpractice constitutes one “occurrence” even when it injures multiple victims.

In the case at bar, the plaintiff argued that she and her twins are entitled to a $2,000,000 compensation even under the “cause” approach. Specifically, she claimed that her evidence demonstrated that the “twins were subjected to different infectious organisms at different times, which the doctor discretely failed to diagnose and treat.” According to the plaintiff, there were two separate occurrences of medical malpractice that caused distinct damages to each twin.
The Court remanded the case with instructions to adjudicate the plaintiff’s claim under the “cause” approach.

August 23, 2013

“Medical Malpractice” vs. “Ordinary Negligence”

Multari v. Yale New Haven Hosp., — A.3d —, 2013 WL 4419113 (Conn.App. 2013)

The plaintiff and her granddaughter were ushered out of the hospital following the granddaughter’s postsurgical “thrashing around the recovery room.” The plaintiff was forced to leave the hospital on her foot while carrying her granddaughter without the benefit of a wheelchair. As a result, she tripped, fell on the ground, and sustained injuries. Her ensuing suit against the hospital was dismissed for failure to attach to her complaint “a certificate of good faith or an opinion letter” from a qualified expert (a “merit certificate”).

On appeal, the plaintiff’s suit was categorized as sounding in ordinary negligence, rather than medical malpractice, which exempted her from the duty to file a merit certificate. The plaintiff’s suit was consequently reinstated.
The appellate court based this decision on the tripartite test announced in Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 764 A.2d 203 (Conn.App. 2001). Under this test, “the relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment.”

For further discussion of this issue, click here.

August 23, 2013

Doctors must request special verdict to appeal a finding of malpractice on evidential insufficiency grounds

Pratt v. Petelin, — F.3d —, 2013 WL 4405694 (10th Cir. 2013)

The Tenth Circuit has recently delivered an important decision with regard to appellate procedure in the medical malpractice area.

This decision involved a patient whose suit against her doctor relied on four different malpractice theories.  The doctor did not request special verdicts on those allegations. After trial, the jury delivered a general verdict against the doctor. The doctor appealed this verdict on evidential insufficiency grounds.

The Tenth Circuit ruled that the doctor’s failure to request special verdict form as to each factual theory developed by the patient precluded him from challenging sufficiency of the evidence supporting the patient’s case. The patient’s successful showing that there was sufficient evidence to support one factual basis of the alleged malpractice dooms the doctor’s appeal. The appellate court will proceed on the irrebuttable assumption that jurors used this basis in delivering their verdict.

The court also clarified that, in a diversity case, the content of jury instructions is controlled by state substantive law, whereas the determination of whether an instruction was erroneously given is governed by federal procedural law.

August 23, 2013

The “Common Knowledge” Exception to the Expert Requirement in Alabama

Morgan v. Publix Super Markets Inc. — So.3d —, 2013 WL 4294149 (Ala. 2013)

In this case, the Alabama Supreme Court decided that the “common knowledge” exception to the expert testimony requirement applies to a suit alleging that a pharmacy negligently filled the plaintiff’s prescription with the incorrect medication and caused her physical problems (swelling on the face, tingling lips, hives, and painful scales and hyper-pigmentation around the mouth and eyelids).

The Court reaffirmed its previous holding that the Alabama Medical Liability Act applies to pharmacists, as these are included within the Act’s definition of “other health-care providers” (Cackowski v. Wal–Mart Stores, Inc., 767 So.2d 319, 324–25 (Ala. 2000). Hence, if the “common knowledge” exception were inapplicable, the plaintiff would have been required to identify the experts designated to testify about the standards of care broken by the pharmacy; and her experts—physicians, rather than pharmacists—would have been ineligible for that role.

The Court also clarified that the “common knowledge” exception is not limited to circumstances covered by the res ipsa loquitur presumption.

August 21, 2013


Agreements to Arbitrate Medical Malpractice Claims: Positive Law

Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes?

This question has no straightforward answer. As an initial matter, one needs to separate individual arbitration agreements between doctors and patients from group health plans for employees. A group health plan that obligates employees to arbitrate medical malpractice claims is valid and enforceable: see Madden v. Kaiser Foundation Hospital, 552 P.2d 1178 (Cal. 1976). The plan’s designers—employers on one side and MCOs/HMOs on the other side—have roughly equal bargaining powers and cannot easily take advantage of one another. Their preference for arbitration is part of a well thought-through deal that includes an attractively priced health benefits package for employees (such deals do not always promote the employees’ best interest, but this is a story for another occasion: see here).

With individual arbitration agreements things are markedly different. Courts often view such agreements as contracts of adhesion that patients have no choice but to sign. Driven by this vision and the desire to protect patients against unfairness, courts refuse to compel arbitration on a patient: see, e.g., Rodriguez v. Superior Court, 98 Cal.Rptr.3d 728, 735-38 (Cal. App. 2 Dist. 2009) (refusing to enforce a statutorily permitted agreement to arbitrate medical malpractice claims upon finding that the patient did not waive her right to a jury trial knowingly and voluntarily).

This approach aligns with the traditional common law rule that precludes contracting around medical liability on public policy grounds (see, e.g., Tunkl v. Regents of the Univ. of Cal., 383 P.2d 441, 447 (Cal. 1963); Tatham v. Hoke, 469 F. Supp. 914, 919 (W.D.N.C. 1979), Porubiansky v. Emory Univ., 275 S.E.2d 163, 169 (Ga. Ct. App. 1980)), but conflicts with Section 2 of the Federal Arbitration Act (FAA), according to which written arbitration agreements “shall be valid, irrevocable, and enforceable.” This section, as interpreted in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), does not allow state courts to nullify arbitration agreements on the theory that consumers and other weak plaintiffs can receive proper redress only from courts (by utilizing class action or another proceeding that eradicates the defendant’s litigation advantage). State courts consequently cannot set aside arbitration agreements based solely on the differences between arbitration and court proceedings (my colleague and an FAA expert, Myriam Gilles, wrote two important articles on that issue: see here and here).

Importantly, Section 2 still allows state courts to set aside arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract.” As clarified by the Supreme Court is the AT&T decision, the FAA “permits agreements to arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability” (id. at 1746). For example, a state court can nullify an arbitration agreement that denies an aggrieved patient remedies to which she is entitled under the law. This is exactly what happened in a recent Florida Supreme Court case, Franks v. Bowers, — So.3d —, 2013 WL 3064807 (Fla. 2013) (discussed in detail here). In that case, the court voided an arbitration agreement purporting to set up a $250,000 limit on the patient’s compensation in the event of malpractice. This limit was four times lower than Florida’s statutory cap on noneconomic damages recoverable by wronged patients. Hence, it was unlawful, unconscionable and, crucially, not severable from the rest of the agreement between the doctor and the patient.
This decision does not mention FAA. This statute, however, has been extensively discussed in a decision delivered a week ago by New Jersey’s appellate court: Moore v. Woman to Woman Obstetrics & Gynecology LLC, ___ A.3d, 2013 WL 4080947 (N.J.Super.A.D. 2013). This decision involved a high-risk-pregnancy patient who signed an agreement on behalf of herself, her spouse and unborn child to arbitrate “all past and future claims for medical diagnosis and treatment.” The patient’s pregnancy ended up in a delivery of a baby with Downs Syndrome. Following this tragic development, the patient, the baby and her spouse sued the obstetricians for malpractice. The obstetricians moved to compel the arbitration agreement on the plaintiffs, but the trial judge denied their motion.

The appellate court reversed this decision. The court began its inquiry by stating that FAA and the Supreme Court’s AT&T decision “did not alter the basic premise that an agreement to arbitrate must be the product of mutual assent, as determined under customary principles of contract law” and that “in the aftermath of AT&T, state courts remain free to decline to enforce an arbitration provision by invoking traditional legal doctrines governing the formation of a contract and its interpretation” including “the defense of unconscionability.”

After finding that the agreement in question was a contract of adhesion, the court carried out the requisite “sharpened inquiry” concerning unconscionability. As part of that inquiry, the court considered three factors: subject-matter, bargaining powers, and economic compulsion. As far as subject-matter is concerned, the court decided that there is “no inherent harm to the doctor/patient relationship that flows from the agreement to substitute one forum [arbitration] for another [court] in the event of future claims.” The court then determined that the patient’s bargaining power was way below her doctors’ power. The court nonetheless found no economic compulsion (“procedural unconscionability”) since there were no “significant inadequacies due to [the patient’s] age, literacy [or] lack of sophistication, the agreement’s hidden or unduly complex … terms, [and] the defendants’ bargaining tactics.” The court consequently ruled that the arbitration agreement was enforceable against the patient and her child. Because the patient’s spouse was not a party to that agreement, the court allowed him to proceed with his individual suit.

I believe that this decision takes the law in the right direction. Whether arbitration will take over globally is a separate question on which I will offer some thoughts in my next post.

August 12, 2013

NPDB and Due Process

Rochling v. Dep. Vet. Aff’s, — F.3d —, 2013 WL 4017143 (8th Cir. 2013)

An aggrieved patient files medical malpractice suit against a hospital in which he was treated. The hospital and the patient subsequently settle the suit. Their settlement agreement states that the hospital settles the suit “for the benefit of” a physician who treated the patient. Because the patient did not sue the physician, the physician was not a party to this agreement. Pursuant to the Healthcare Quality Improvement Act of 1986 (HCQIA), the hospital reports the agreement to the National Practitioner Data Bank (NPDB). Prior to filing this report, the hospital allows the physician to provide her account of the relevant events. The physician demands a process within which she could demonstrate that her treatment of the patient was faultless, but the hospital denies this demand.

Can the physician challenge the report?

Last week, the Court of Appeals for the Eighth Circuit decided that she cannot: Rochling v. Dep. Vet. Aff’s, — F.3d —, 2013 WL 4017143 (8th Cir. 2013).
The physician’s principal claim—violation of procedural due process—appeared promising, but the Court turned it down because the physician failed to show the requisite deprivation of a constitutionally protected “life, liberty or property interest.” The physician argued that the report was analogous to a disciplinary proceeding that must comply with due process, but the Court held that “the NPDB report by itself is not a rebuke, censuring or reprimanding.” Rather, explained the Court, “the report simply means that a payment was made “for the [physician’s] benefit.”

Really?

The report could not “simply” mean that the hospital made a payment for the physician’s benefit. After all, it was filed with the NPDB pursuant to HCQIA and not with the IRS, pursuant to the tax code. This filing had only one plausible meaning: having the physician’s name on the government’s [black]list of actual and suspected malpractitioners—viewable by state licensing boards and the physician’s prospective employers (HCQIA, §11137)—might improve the quality of healthcare in our country. The contemplated improvement involves employers refusing to hire or credential the physician (CfKatharine A. Van Tassel, Blacklisted: The Constitutionality of the Federal System for Publishing Reports of “Bad” Doctors in the National Practitioner Data Bank, 33 Cardozo L. Rev. 2031 (2012)).

If so, the report’s filing clearly diminished the physician’s employment opportunities and earning capacity. There is no other way to see it. The physician’s employment opportunities and earning capacity may not qualify as a “property” interest, but they certainly fall under the “new property” definition (Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964)). The Court nonetheless decided that the report’s effect on the physician’s future employment does not make it a protected “property” interest. I find this decision disappointing and unsatisfactory.  I also find it hard to reconcile with the Supreme Court’s reasoning in Mathews v. Eldridge, 424 U.S. 319 (1976).

Am I wrong?

August 7, 2013

Bond requirements for malpractice suits that fail to pass the screening panel

Faircloth v. DiLillo, — N.E.2d —, Mass. , 2013 WL 3957794 (Mass. 2013)

Under Massachusetts statute, when a screening panel determines that there is no sufficient evidence to verify the plaintiff’s liability allegations against the defendant, “the plaintiff may pursue the claim through the usual judicial process only upon filing bond in the amount of $6,000 payable to the defendant … for costs assessed, including witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment.” For indigent plaintiffs, the judge who headed in the panel “may reduce the amount of the bond but may not eliminate the requirement thereof.”

The Massachusetts Supreme Court ruled in connection with that statute that the judge may not refuse to reduce the bond’s amount upon finding that the plaintiffs’ attorney is paying the bond. Rather, the judge “should evaluate the reasonableness of the plaintiff’s continued pursuit of the action” and “whether a litigant … able to pay … the expenses … would choose to obtain the bond.”  The Court has delivered a similar ruling in Cruz v. Siddiqi, — N.E.2d —, Mass. , 2013 WL 3957799 (Mass. 2013).

The “common knowledge” exception to the expert testimony requirement

McGathey v. Brookwood Health Services —  So.3d —, 2013 WL 3958299 (Ala. 2013)

In this very recent decision, the Alabama Supreme Court applied the “common knowledge” exception to a case involving a metal bar that was strapped to a patient’s arm during her shoulder surgery. The bar was hot from having been recently sterilized and burned the patient’s skin. The Court decided that the patient does not have to produce expert testimony because the alleged “want of skill or lack of care [is] so apparent … as to be understood by a layman, and requires only common knowledge and experience to understand it.”

Conflict of Laws and Consumer Protection in Medical Malpractice Litigation

Jones v. Clinch, — A.3d —, 2013 WL 3940814 (D.C. 2013)

The patient underwent an expensive eye surgery that proved to be ineffectual and sued her doctor for violation of DC’s Consumer Protection Procedures Act. The doctor argued that his dispute with the patient is governed by Maryland law that exempts doctors from its consumer protection laws.

The Court agreed with the doctor for the following reasons:

1. The place of the patient’s alleged injury was Maryland.

2. The consultation during which the patient decided to undergo eye surgery took place in the doctor’s Maryland office.

3. The patient resided in Virginia, but none of the activities relevant to her suit took place in that state.

4. The doctor’s clinic advertised its eye surgeries in DC, but this general advertisement was not as significant as the patient’s individual dealings with the doctor, all of which took place in Maryland.

The patient offered no evidence to show the doctor’s negligence nor was she able to prove an informed-consent violation. The District of Columbia Court of Appeals consequently affirmed the dismissal of her suit.
This decision is unquestionably correct.

However, the exemption from consumer protection laws that Maryland gives doctors is troubling. Leaving the financial side of the doctor/patient relationship unregulated is hardly a good idea. Under Maryland law, when a doctor induces his patient to undergo an expensive treatment instead of an equally effective but inexpensive one, the patient has no redress. The only meaningful protection the patient can count on is her health insurance that will refuse to authorize an unnecessarily expensive treatment. But what if the patient is uninsured?