ISSUE 1:9, September 2013-Recent Developments

September 30, 2013

The “Same Specialty” Requirement in Federal Courts

Liebsack v. United States, — F.3d —, 2013 WL 5303246 (9th Cir. 2013)

Medical malpractice suits reach federal courts through two channels: diversity and the Federal Tort Claims Act (FTCA). The FTCA framework was set up (inter alia) for suits against doctors working at veterans hospitals or another facility operated by the federal government. The diversity framework was designed for parties residing in different states. Under both frameworks, duty of care, negligence and all other substantive issues are determined by applicable state law. Federal law, on the other hand, controls every procedural and evidentiary issue. For FTCA, this rule was established in 28 U.S.C. § 2674; see, e.g., Gil v. Reed, 535 F.3d 551, 558 n.2 (7th Cir. 2008) (citing Arpin v. United States, 521 F.3d 769, 776 (7th Cir. 2008)). For diversity litigation, this rule was established by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

This rule is very clear. Far less clear, however, are the lines separating “substance” from “procedure.”

Many states have established the “same specialty” requirement for expert witnesses testifying about medical malpractice. Under this requirement, an expert witness must practice medicine in the same specialty as the defendant doctor. Failure to satisfy this requirement disqualifies the witness. Her testimony about the duty of care owed by the defendant to his patient becomes inadmissible. This requirement has led to fierce controversies that state courts have resolved in different ways: see herehereherehere, and here.

How will it play out in a federal court? Categorizing the requirement as “procedural” or “evidentiary” would trigger a fairly simple application of Federal Rule of Evidence 702 and the Daubert doctrine. To be eligible as a witness, the plaintiff’s expert would only have to show her familiarity with the disputed medical procedure or treatment. On the other hand, if the requirement were to be perceived as “substantive,” state law would apply. Under this scenario, the expert would have to show that she practices medicine in the same specialty as the defendant. Failure to demonstrate this alignment would disqualify the expert even when she is familiar with the disputed treatment. This, in turn, would allow the defendant to obtain a summary dismissal of the suit.

In a recent decision, Liebsack v. United States, — F.3d —, 2013 WL 5303246 (9th Cir. 2013), the Ninth Circuit has categorized the same-specialty requirement as “substantive” for purposes of FTCA. Correspondingly, it ruled that this requirement overrides Federal Rule of Evidence 702. The Court reasoned that, under Erie as well, this evidentiary requirement would be considered “intimately bound up with the rights and obligations being asserted.” This feature would make the requirement “substantive” and mandate its application in diversity suits.

This reasoning relied on Legg v. Chopra, 286 F.3d 286 (6th Cir. 2002)—a decision that categorized Tennessee’s “local expert” requirement as “substantive” as well due to its intimate connection to the applicable “local medical community” standard for doctors’ procedures (for a similar holding, see Creekmore v. Maryview Hosp., 662 F.3d 686 (4th Cir. 2011)).  The Court also based its decision on Federal Rule of Evidence 601. This rule prescribes that “in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.”

Up to this point, the Court’s decision was impeccable. The Court, however, also ruled that the “same specialty” requirement does not completely displace the Daubert doctrine. An expert satisfying this requirement, it explained, only becomes competent as a witness. For her testimony to be admissible as well, it also needs to pass the Daubert test codified in Federal Rule of Evidence 702.

This ruling originates from a serious misunderstanding of the “same specialty” requirement. Experts testifying under this requirement are fact experts, not opinion experts. They provide information about their specialty’s customary practice and whether the defendant’s treatment of the patient aligned with that practice. To produce this information, an expert need not carry out any tests or experiments. Nor does she need to form an opinion concerning the quality of the treatment in question. All she needs to bring in is facts: see here, at 1208-16. The Daubert doctrine is of consequence only for causation decisions: for an important illustration see here or here.

September 19, 2013

Daubert as a Problem for Psychiatrists

Patteson v. Maloney— F.Supp.2d —, 2013 WL 5133495 (D.D.C. 2013)

Most psychiatrists don’t know about it, but the switch from Frye to Daubert in the admission of expert testimony matters for them a lot. Psychiatrists treat patients with second-generation antipsychotics: Zyprexa, Risperdal, Clozaril, Seroquel, and similar drugs. A reputable, but still controversial, body of research links those drugs to tardive dyskinesia: a serious neurological disorder involving uncontrollable facial grimacing, repetitive tongue thrusting, and other untoward bodily movements. Under Frye, expert evidence can only be admitted upon showing that it received “standing and scientific recognition” from the relevant community of experts. Absence of a solid consensus disqualifies the evidence. Expert testimony linking tardive dyskinesia to antipsychotic drugs consequently would not be admissible under Frye.  Under Daubert, however, it would go into evidence because its underlying research is grounded in scientific method and procedure that can be replicated, examined, and properly explained to the jury.

This is exactly what happened in a recent case decided by the United States District Court for the District of Columbia: Patteson v. Maloney— F.Supp.2d —, 2013 WL 5133495 (D.D.C. 2013). This case featured a patient who developed tardive dyskinesia (TD) following her insomnia treatment by an antipsychotic drug, Seroquel. After acknowledging that replicable and peer-reviewed studies linking TD to Seroquel have been published in reputable medical journals, the court decided that the patient’s causation expert passes the Daubert test. The court explained that the fact that medical community is not unanimous about these studies goes to the weight of the expert’s testimony and does not make it inadmissible. The court also underscored Daubert’s “liberal thrust” toward the admission of expert testimony in general.
Moreover, the court ruled that the expert can establish patient-specific causation by differential etiology. This method, in the court’s words, involves “the creation of a list of possible and/or most likely causes for a patient’s signs and symptoms, based on his/her medical history, examination findings, and ancillary testing. … The [expert] then eliminates options from the list until the most likely cause is found. Picture a whiteboard filled with possible medical culprits for a patient’s symptoms—familiar to fans of the medical television drama House—and then watch each being methodically crossed off the list through testing and deduction until a single diagnosis remains.”

Based on this method, plaintiffs who never experienced TD prior to taking the medication would normally be able to move their case to the jury. This ruling was also based on Daubert. The differential etiology method could hardly be admitted into evidence under Frye.
The consequent liability risk for psychiatrists is obvious, given the frequency of TD among psychiatric patients. Antipsychotic drug prescriptions follow the trial and error method. This method involves patient-specific observations, tradeoffs and adjustments that rely on the psychiatrist’s intuition. There are no hard-and-fast rules and protocols similar to those that provide legal “safe harbors” for other doctors (see here, at pp. 1208-16). As a result, plaintiffs’ experts would often be able to second-guess the psychiatrist’s drug prescription and plausibly describe it as negligent.

This new legal reality increases the liability risk for psychiatrists while limiting their ability to defeat malpractice suits summarily. Psychiatrists face this increased liability prospect in every state court that follows Daubert as well as in federal courts sitting in diversity or deciding malpractice suits under the Federal Tort Claims Act. State courts that follow Frye (as in New York and California) will protect psychiatrists against this risk.

A possible solution to this problem can be found in the rules of informed consent that deem psychiatric patients competent to consent to an antipsychotic drug prescription. Excluded from this presumption are patients proven to be “substantially incapable of applying an understanding of the advantages and disadvantages of particular medication to [their] mental illness.” See In the Matter of the Mental Commitment of Melanie L., 833 N.W.2d 607 (Wis. 2013).  Based on this presumption, psychiatrists can have their patients sign an informed consent form specifying the TD risk among the anticipated side effects of the prescribed medication. The form should also explain the tradeoff recommended by the psychiatrist and agreed by the patient. Finally, the form should expressly state that the patient chooses this tradeoff over its alternatives and agrees to the drug adjustment process by trial and error. The patient will then be deemed to have assumed the risk of developing TD from taking the medication.

Admittedly, this is not a foolproof solution, and I can also think of psychiatrists who would not like it very much. This solution, however, minimizes the psychiatrists’ risk of liability for TD. Psychiatrists who feel uncomfortable about my proposed informed-consent form should read Patteson v. Maloney— F.Supp.2d —, 2013 WL 5133495 (D.D.C. 2013) and think about it again.

September 11, 2013

The Effect of a Settlement on Malpractice Defendants who Chose to Litigate

Graham v. Twedell, — A.3d —, 2013 WL 4803485 (N.J.Super.L. 2013)

Can a defendant who chooses the litigate a medical malpractice case, but does so unsuccessfully, offset the verdict by the amount received by the plaintiff in a settlement with other defendants?

Until now, this issue has not been settled in New Jersey, but now it is. The New Jersey Superior Court has ruled that the setoff will only be available to defendants who ask the jury to apportion their liability relative to that of other defendants, pursuant to the state’s Comparative Negligence Act. As the court explained, a defendant who chooses not to put on a case against his co-defendants will receive no credit against the verdict. To receive this credit, the defendant must ask the jury to determine the total damage figure and how it splits among the negligent healthcare providers.

This seems absolutely right.

September 10, 2013

Medical Malpractice Law as a Triumph of Procedure Over Substance

Hall v. Rocky Mountain Emergency Physicians,— P.3d —, 2013 WL 4768310 (Idaho 2013)

When Sir Henry Maine wrote (here, on page 389) that early substantive law was “secreted in the interstices of procedure,” he did not know that he was coining a long-lasting adage.  Even less did he anticipate that this adage will aptly describe our today’s system of medical malpractice.
This system normally requires plaintiffs to accompany their suits with an affidavit or certificate of merit from an eligible medical expert. The expert must show that s/he practices medicine in the same field or specialty as the defendant doctor and is familiar with the standards, protocols and procedures followed by physicians working in that field or specialty (in some jurisdictions, the expert only needs to satisfy the familiarity condition). The expert also must identify the malpractice: the defendant’ deviation from one of those standards, protocols or procedures. Finally, the expert must certify that there is a reasonable medical possibility that the defendant’s malpractice has injured the plaintiff or aggravated her condition. When a plaintiff fails to submit an affidavit that satisfies this checklist requirement, the court must dismiss her suit. The checklist requirement thus creates a “safe harbor” for doctors who go by the rules and blocks away unmeritorious suits. For details, see here.

The Supreme Court of Idaho has recently taken the checklist requirement to its extreme. This unfortunate development took place in Hall v. Rocky Mountain Emergency Physicians,— P.3d —, 2013 WL 4768310 (Idaho 2013). This case involved a patient who came to be treated for a severe headache at a hospital’s emergency room, where she was examined by a doctor. The patient alleged that the doctor “without consent … lifted my bra up and over, exposing my left breast, looked under my gown and brushed his hand over my left nipple [and] then continued with the stethoscope while resting his hand on my left breast for approximately 15–20 seconds, while claiming to check my heartbeat.”

This accusation strikes me as deserving trial. If it is true, the plaintiff should recover compensation. If it is false, the plaintiff’s suit should be dismissed with costs. And if the factfinder cannot determine whether the accusation is more likely to be true than false, the defendant should prevail as well because the burden of proof is on the plaintiff.
The trial court, however, saw things differently. The plaintiff’s suit alleged that the doctor committed battery, intentional infliction of emotional distress, and invasion of privacy. These allegations, nonetheless, could still be categorized as “medical malpractice.” Presumably for that reason, the plaintiff decided to play safe by satisfying the checklist requirement. She submitted to court an expert affidavit that described unconsented exposure and touching of a patient’s breasts as medically improper. The expert, however, did not mention how emergency room physicians are supposed to check the heartbeat of a female patient. Worse yet, the expert also failed to describe the customary practice of the emergency room in which the plaintiff was treated and had to take “as is” under the “emergency rule.”  For these reasons, the court dismissed the plaintiff’s suit summarily.

The Idaho Supreme Court found no flaws in that decision and upheld the dismissal. Remarkably, it mentioned Idaho’s statutory prohibition of sexual exploitation by a medical care provider, I.C. § 18-919. The plaintiff’s allegations against the doctor squarely aligned with that statute. The statute could thus be considered as setting the requisite standard of conduct for doctors. Proof of that standard required no expert witnesses. Alas, the plaintiff did not rely on I.C. § 18-919 throughout the court proceedings. Instead, she relied on common sense. Worse yet, by filing a medical expert’s affidavit, she made her suit sound in medical malpractice. For that reason, the Court decided to disregard the sexual exploitation statute for purposes of its decision.

The way this case was decided brings to mind the system of writs, aptly described by Maine’s quote. Conspicuously missing were the rules of equity that authorized judges to cut through procedural forms and get to the substance of the case.

September 6, 2013

Using Malpractice Laws to Sabotage Roe v. Wade

K.P. v. LeBlanc, — F.3d —, 2013 WL 4746488 (5th Cir. 2013)

This method was pioneered by South Dakota and Indiana that set up special “informed consent” requirements for abortion procedures, SDCL § 34-23A-10.1 and IC 16-34-2-1.1. Under these requirements, physicians must tell the pregnant woman (inter alia) that “the abortion will terminate the life of a whole, separate, unique, living human being” with whom she has a relationship that enjoys constitutional protection; that “human physical life begins when a human ovum is fertilized by a human sperm”; that the abortion might lead to depression, suicide ideation, and suicide; and that she should “view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone”; and also have the name, address, and telephone number of a nearby pregnancy help center.

The prize for innovation and ingenuity in this area, however, squarely belongs to Louisiana, whose special abortion-malpractice statute—Act 825, La. Rev. Stat. § 9:2800.12—was upheld this week in K.P. v. LeBlanc, — F.3d —, 2013 WL 4746488 (5th Cir. 2013).  Act 825 complements Louisiana’s “Woman’s Right to Know Act,” La. Rev. Stat. § 40:1299.35.6, that established “informed consent” requirements for abortion similar to those of South Dakota and Indiana.
To understand what Act 825 does, one needs to know the basics of Louisiana’s Malpractice Act of 1975, La. Rev. Stat. § 40:1299.42(B). Louisiana’s Malpractice Act has established the Patient’s Compensation Fund, whose goals are “to guarantee that affordable medical malpractice coverage is available to all private healthcare providers”; “to provide a certain, stable source of compensation for legitimate injured parties of medical malpractice”; “to promptly resolve and fairly compensate legitimate injured parties of medical malpractice”; and “to zealously resist and defend unmeritorious and/or exaggerated claims.” The Fund caps malpractice victims’ compensation at $500,000, plus medical expenses, while limiting the providers’ liability to the first $100,000 of the victim’s damage. Participating providers contribute to the Fund surcharge payments reflecting their liability risks. They also must demonstrate financial responsibility by depositing $125,000 in cash or its equivalent or by purchasing malpractice insurance that covers $100,000. To fend off unmeritorious suits, the Malpractice Act sets up panels of experts that evaluate the merits of malpractice allegations and compile reports that are subsequently admitted into evidence.

Act 825 ordains that “The laws governing medical malpractice or limitations of liability thereof provided [in the Malpractice Act]” will not apply to abortion procedures (La. Rev. Stat. § 9:2800.12(C)(2)).  As simple as that. The Act removes Louisiana’s subsidy from the abortion-related malpractice insurance—a measure that increases the cost of abortion and reduces its affordability. Furthermore, Act 825 sets the limitations period for abortion-related malpractice suits at “ten years from the date of the abortion” (§ 9:2800.12(A))—a wide-open window that starkly contrasts with Louisiana’s 1-year limitations period and 3-year repose period for all other suits sounding in medical malpractice (La. Rev. Stat. § 9:5628).

The Fifth Circuit upheld the Act’s constitutionality in a decision that separated between statutes that place “a substantial obstacle in the path of a woman’s choice,” thereby violating Roe v. Wade, and “unequal subsidization of abortion and other medical services” that is constitutionally permitted (Harris v. McRae, 448 U.S. 297, 315 (1980)). Based on this differentiation and the underlying distinction between “not providing benefits and restricting choice” (Maher v. Roe, 432 U.S. 464 (1977)), it categorized Act 825 as a constitutional denial of a government’s benefit. The Circuit acknowledged Kathleen Sullivan’s powerful critique of this distinction (Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989)), but expectedly based its ruling on “the long-standing law of the Supreme Court.” Act 825 thus survived the constitutional challenge under Roe v. Wade.

Doctors practicing abortion, however, may explore a different challenge in the future. Arguably, they are constitutionally entitled to the same protection against unmeritorious suits as providers of other medical services. Specifically, when a doctor is sued for malpractice in performing an abortion, s/he can demand that the suit’s merits be verified by a panel of abortion specialists (or by a similar screening mechanism: e.g., a merit certificate requirement) and that s/he should enjoy the same limitations and repose protections as all other physicians (in LeBlanc, these issues did not arise). This demand can be based on the due process and equal protection doctrines that apply in civil procedure. Admittedly, those doctrines are rather thin (see Alex Stein, Constitutional Evidence Law, 61 Vand. L. Rev. 65, 78-79 (2008)), but a thin doctrine is still more promising than the thick Maher-McRae jurisprudence that gives the Act’s challengers no hope.

September 1, 2013

“Same Specialty” Again

Smith v. Fisher, — So.3d —, 2013 WL 4618723 (Ala. 2013)

In this case, the Alabama Supreme Court has upheld the trial court’s decision that a board-certified internal medicine specialist cannot testify against a neurosurgeon on the theory that the neurosurgeon’s postoperative care of a neurosurgical patient (who died from aneurism-related complications) fell into the domain of internal medicine. In reaching this conclusion under Alabama’s “same specialty” statute, Ala.Code 1975 § 6-5-548, the Court relied on its ruling in the Hegarty case—discussed here—that “The fact that [two certifying boards] may have the same purpose, that they may certify providers for the same procedures, or that they may require the same qualifications [is] irrelevant. Section 6–5–548(e) plainly states that if the two providers are not certified by the same organization, then one cannot testify as to the standard of care applicable to the other.”

September 1, 2013

Failure to raise a timely objection under the “same specialty” statute

Lucante v. Kyker, — So.3d —, 2013 WL 4614754 (Fla.App. 1 Dist. 2013)

Everyone knows that if your opponent adduces inadmissible hearsay into evidence and you do not promptly object to it, the evidence would become admissible. In the present case, Florida’s First District Court of Appeals held that the same waiver rule will apply when a defendant fails to raise a timely objection to the plaintiff’s medical expert report that comes from a doctor whose specialty is not similar to the defendant’s. The Court ruled that “Because the [defendants] failed to deny the satisfaction of preconditions [for filing the suit] specifically and with particularity, the [defendants] could not later assert that a condition precedent had not been met.”

If so, what would happen at the trial itself, given that the misalignment between the two specialties precludes the plaintiff’s expert from testifying about the applicable standard of care?
How should the trial court rule if the defendants object to the expert’s testimony on irrelevancy grounds?

I posit that the court of appeals should have required the plaintiff to submit an expert report from a doctor who works in the same specialty as the defendants.