ISSUE 2:1, January 2014 – Recent Developments

January 28, 2014

Unconstitutional Time Bars in Washington

Schroeder v. Weighall — P.3d —, 2014 WL 172665 (Wash. 2014), is the second Washington Supreme Court’s decision that voids the Legislature’s time bar for medical malpractice suits. The first decision, DeYoung v. Providence Medical Center, 960 P.2d 919 (Wash. 1998), voided an eight-year repose provision for violating the constitutional prohibition on special privileges (Article I, section 12). This statutory provision benefited healthcare providers and their insurers at the expense of injured patients whose cause of action accrued over a long period of time and consequently tolled the statute of limitations. The Court held that the Legislature had no rational basis for blocking suits filed in connection with more-than-eight-years-old incidents of medical malpractice. The Court based that decision on the finding by the National Association of Insurance Commissioners that old medical malpractice incidents account for “less than one percent of all insurance claims nation-wide.” This finding convinced the Court that the “relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny.”

In Schroeder, the Court used the same constitutional prohibition to void a new statutory provision that eliminated tolling of the statute of limitations for minors in medical malpractice actions. Washington law provides that suits alleging medical malpractice must be filed within three years of the “act or omission” giving rise to the claim or one year after the patient “discovered or reasonably should have discovered” that the injury was caused by the act or omission in question. The statute imputes a parent’s or guardian’s knowledge to the injured minor. RCW 4.16.350. RCW 4.16.190(1). Prior to its amendment, the statute also provided that the limitation period shall be suspended (tolled) during a plaintiff’s minority, incompetency, or incarceration. The statutory amendment that the Court found unconstitutional, RCW 4.16.190(2), took away minors’ entitlement to toll the statute of limitations in medical malpractice actions.

The Court reasoned that the constitutional prohibition on special privileges aims at preventing legislative capture, described as “the undue political influence exercised by a privileged few.” The Court then went on to determine that the challenged legislation “limits the ability of certain plaintiffs—those whose injuries occurred during childhood—to bring medical malpractice claims” and therefore burdens their rights, while granting a special immunity to healthcare providers. This immunity, it explained, calls for constitutional scrutiny under the “reasonable ground” test. The Court held that the challenged legislation fails that test for two main reasons. First, there is no evidence substantiating the projection that the elimination of tolling for minors will reduce healthcare providers’ insurance premiums. Second, the challenged legislation “has the potential to burden a particularly vulnerable minority by placing “a disproportionate burden on the child whose parent or guardian lacks the knowledge or incentive to pursue a claim on his or her behalf.” To these reasons, one might add another one: it makes no sense to deny tolling to minors while granting it to incarcerated convicts, as the Washington statute did and still does.

This is an important and well reasoned decision. As a constitutional precedent, however, it suffers from a structural anomaly. This precedent allows tort reformers to pass constitutional muster by curtailing the patients’ right to sue their doctors more severely than they did in the statutes that the Court found unconstitutional. For example, a statute setting up a strict four-year repose period for all medical malpractice suits (as opposed to the eight-year period voided in DeYoung) will likely be upheld as constitutional because it has a definite promise of reducing the insurance premiums for healthcare providers. The availability of a more balanced reform that promises the same result (e.g., the merit affidavit requirement: see here, at pp. 1208-16 is of no consequence. The Court’s “reasonable ground” test renders legislative alternatives irrelevant because the Court does not second-guess the legislature’s chosen means and ends. All it does is examine whether those means and ends are connected to each other reasonably enough.

January 26, 2014

Medical Malpractice vs. Regular Negligence

Ambrose v. St. Joseph Hosp. Atlanta, — S.E.2d —, 2014 WL 169870 (Ga. App. 2014)

A surgical microscope used in a spinal surgery emitted UV light at a level that was too intense for the patient’s skin to tolerate. As a result, the patient sustained burns on his back that left him with a scar and continued pain.

Based on this complaint, Georgia’s appellate court held that the patient’s suit sounded in ordinary negligence, rather than medical malpractice, and hence it does not require an expert affidavit. The Court analogized this case to the “ordinary negligence” cases that involved a nurse’s failure to activate an alarm following a doctor’s order; hospital employees’ failure to carry out instructions; and a hospital’s failure to have appropriate equipment on the premises.

The Court clarified, however, that “if a claim of negligence goes to the propriety of a professional decision rather than to the efficacy of conduct in the carrying out of a decision previously made, the claim sounds in professional malpractice.”

January 24, 2014

Is Fetus a PATIENT? More on Bypassing Damage Caps

Simpson v. Roberts, — S.E.2d —, 2014 WL 92032 (Va. 2014)

In Virginia and many other states, statutory caps limit the amount of compensation that an aggrieved patient can recover from her doctor. To bypass this limit, a victim of medical malpractice may want not to be considered a “patient.” This motivation brought the “Is fetus a patient?” question to the Virginia Supreme Court in Simpson v. Roberts, — S.E.2d —, 2014 WL 92032 (Va. 2014).

Complications that arose from an unsuccessful amniocentesis led to the birth of a child with damaged kidneys and cerebral palsy. After finding medical malpractice, the jury returned a $7,000,000 verdict in the child’s favor. Pursuant to Virginia’s statute, the court capped this award at $1,400,000. The child appealed all the way to the Virginia Supreme Court, arguing that the statute did not apply to her. This statute, she explained, caps compensation payable to a “patient” who suffered injury as a consequence of her doctor’s malpractice. The child argued that she was not a “patient”: when her mother’s doctor mishandled the amniocentesis procedure, she was not yet alive, while under the Virginia statute (and under common sense) one needs to be a living human being in order to be a “patient.” Based on that argument, the child asked the Court to decide her case by the common law doctrine of negligence that did not limit the award that the jury thought she deserves.

The Court agreed that the amniocentesis procedure involved only one “patient”: the child’s mother. However, it decided that the child became a “patient” later on, when she was born alive. At that point in time, the Court explained, the child became a “patient” and hence the statutory cap does limit her compensation after all.

This interpretation aligns with the cap’s statutory goal. However, it pays no attention to the fact that “patient” is an inherently relational concept: a person can properly be considered a patient only when she has a doctor. When the child was born, she surely had several doctors—pediatricians, neonatologists, and others—but those doctors did not include the obstetrician who mishandled the amniocentesis procedure. This obstetrician was her mother’s doctor, not hers. Arguably, therefore, the child sued the obstetrician in her capacity as a non-patient victim of a tort.

In my opinion, the Court should have decided the case the way it did without backdating the child’s status as a patient. Virginia’s statutory cap applies to “any verdict returned against a health care provider in an action for malpractice.” Virginia Medical Malpractice Act, Code § 8.01–581.15. This means that no action for medical malpractice can yield the plaintiff more than the statutory amount of compensation, regardless of whether she sues in her capacity as a patient. The cap extends to all plaintiffs who rightfully sue doctors for malpractice, and not just to patients. For example, in an action for wrongful death that resulted from medical malpractice, the decedent’s widow would have to suffice herself with the statutory amount of compensation as a remedy for her lost consortium. The widow falls outside the “patient” category, but her compensation is still capped because she is entitled to it as a victim of medical malpractice. By the same token, the child in Simpson v. Roberts had never been a patient of the negligent obstetrician, but she became a victim of his malpractice upon her birth.

After thwarting the child’s attempt to bypass the cap, the Court delivered some good news for plaintiffs. It reaffirmed a different cap bypass, previously allowed in Bulala v. Boyd, 389 S.E.2d 670, 675-76 (Va. 1990), and known as the effect-based approach to caps. Under Bulala, an ob-gyn’s negligence during prenatal care, labor and delivery that results in the newborn’s injury separately damages the newborn and his mother. As a result, the newborn’s and the mother’s compensatory awards are capped separately, which, of course, increases the total amount of the plaintiffs’ compensation. The father’s emotional distress, on the other hand, is considered wholly derivative of the newborn’s claim and is therefore capped together with that claim.

Not all courts follow the plaintiffs friendly effect-based approach to caps. In Pennsylvania, for example, the Supreme Court has recently adopted a cause-based approach that caps the total amount of all damages inflicted by a single incident of malpractice. For my discussion of this important development, see here. Which of the two approaches is better than the other is difficult to tell. The effect-based approach that took hold in Virginia may well be suitable for that state because its cap limits the victim’s compensation for both economic and noneconomic damages.

January 17, 2014

Medical Malpractice Causation Revisited

Klein v. Aronchick, — A.3d —, 2014 WL 46648 (Pa. Super. 2014)

Evidence law requires the plaintiff to prove every element of her suit by a preponderance of the evidence. Under this requirement, an aggrieved patient will not succeed in her suit against the doctor unless she adduces persuasive evidence of causation. This evidence must demonstrate that it is more probable than not that the doctor’s malpractice caused the patient’s damage. Satisfying this requirement is difficult because doctors can virtually always blame the patient’s damage on her preexisting medical condition. This factor makes causation in a medical malpractice case an extremely complex issue. In the absence of special legal rules, this issue could present an insurmountable evidentiary obstacle for many wronged patients. Courts responded to this problem by relaxing the causation requirements for medical malpractice suits. They have developed what I call the “relaxed causation” doctrine: see Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1216-26 (2012). The doctrine’s idea is to close the exit from liability for negligent doctors: these doctors should not go scot free because of the patient’s preexisting condition that complicates the causation issue.

This doctrine was at play in a recent case Klein v. Aronchick, — A.3d —, 2014 WL 46648 (Pa. Super. 2014). This case involved a patient whose doctor treated her chronic constipation with Visicol. The doctor was the inventor and patent-holder of Visicol – a drug that was tested and approved as a preparation to cleanse the colon for a colonoscopy. The doctor’s prescription of Visicol for the patient’s treatment of chronic constipation thus was an off-label use. The patient developed a kidney disease, which she attributed to Visicol. Her expert testified that Visicol was contraindicated and that its prolonged use by the patient caused the disease. The doctor’s experts attributed he disease to the patient’s medical history that included bulimia, hypertension, and an extensive use of non-steroidal anti-inflammatory drugs (aspirin, ibuprofen, etc.). The jury found the doctor negligent but decided that the patient failed to prove causation and dismissed the suit.

Pennsylvania’s governing precedent on relaxed causation, Hamil v. Bashline, 392 A.2d 1280 (Pa. 1978), holds that jurors can (but do not have to) deem causation established whenever they find that the negligent doctor substantially increased the patient’s risk of illness or injury. Another decision, Mitzelfelt v. Kamrin, 584 A.2d 888 (Pa. 1990), indicated that the “increased risk” theory of recovery will only be available to an aggrieved patient who has no sustainable claim of direct causation because of her preexisting condition. Direct causation and “increased risk” thus came to be understood as mutually exclusive theories of recovery. Based on that understanding, the trial judge declined to give the jurors the “increased risk” instruction.
The appellate court, however, has decided that the trial judge was wrong. The court held that an aggrieved patient with a preexisting condition is entitled to both instructions. Put differently, the patient can try to prove causation directly, and if she fails, she could still prove it under the “increased risk” theory.

This is an important and correct decision. For various policy reasons, articulated in the above-cited article, courts should narrow doctors’ entry into “negligence” but a negligent doctor’s exit from liability should be narrow as well. Courts across the United States follow this policy with remarkable and commendable unanimity.

January 17, 2014

Abortion Malpractice

Ob/Gyn Specialists of the Palm Beaches v. Mejia, — So.3d —, 2014 WL 51896 (Fla.App. 4 Dist. 2014)

Another intersection between medical malpractice and Roe v. Wade:

Parents of a child with significant birth defects were informed about the child’s potential abnormalities at early stages of the mother’s pregnancy. At that point in time, they decided to keep the pregnancy. During the third trimester, the child’s abnormalities became certain but the physicians offered the mother no abortion option, which arguably constituted malpractice.

The physicians nevertheless won the malpractice suit, after a successful appeal, because the parents failed to establish causation. Florida law prohibits third-trimester abortions that are not necessary “to save the life or preserve the health of the pregnant woman.” Hence, the mother could not legally have an abortion in Florida. The appellate court held in that connection that the physicians were entitled to present evidence that third trimester abortions were generally illegal; that the statutory term “third trimester” refers to the gestational age of the fetus; and that the physicians had no duty to tell mother whether she could legally undergo a third trimester abortion in another state.

January 17, 2014

State Hospitals’ Immunity Against Malpractice Suits

Campbell County Memorial Hospital v. Williams, — P.3d —, 2014 WL 46689 (Wyo. 2014)

The Wyoming Supreme Court has held that a state hospital cannot be vicariously liable for malpractice of independent contractors who deliver care at the hospital. This form of liability is blocked by the government’s immunity against tort suits.

Wyoming law has a rule known as “ostensible agency” and saying that “Where a hospital holds itself out to the public as providing a given service, and where the hospital enters into a contractual arrangement with one or more physicians to direct and provide the service, and where the patient engages the services of the hospital without regard to the identity of a particular physician, and where as a matter of fact the patient is relying upon the hospital to deliver the desired health care and treatment, the doctrine of respondeat superior applies and the hospital is vicariously liable for damages proximately resulting from the neglect, if any, of such physicians.” Sharsmith v. Hill, 764 P.2d 667, 672 (Wyo. 1988)

This rule, however, only applies to private hospitals and other medical institutions. State hospitals are exempted, and here is why:

Wyoming law gives the government a qualified immunity against liability in torts. Under Wyo. Stat. Ann. § 1–39–109, “A governmental entity is liable for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation of any public hospital or in providing public outpatient health care.” Independent contractors are not on the government’s liability list.
Courts have no authorization to add anything to that list, as under Art. 1, § 8 to the Wyoming Constitution, no suit can be maintained against the State until the legislature makes provision for such filing. Absent an explicit statutory provision that waives the State’s immunity, no suit can be filed against the State. Hjorth Royalty Co. v. Trustees of University, 222 P. 9 (Wyo. 1924).

January 17, 2014

Statutes of Repose for Medical Malpractice Suits under FTCA – A New Development

Cooper v. United States, 2013 WL 6845988 (E.D.Pa. 2013)

To be able to sue the government under the Federal Tort Claims Act (FTCA), an aggrieved person must first present his claim to the appropriate agency within two years of the claim’s accrual. 28 U.S.C. § 2401(b). When the agency fails to make a final disposition within six months, the claim is deemed denied and the person may sue the government in federal court. 28 U.S.C. § 2675(a). Alternatively, he may continue the process with the agency. If the agency ultimately denies the claim, he would have another six months to file a suit. 28 U.S.C. § 2401(b).

This continued process may allow the agency to outdate the potential suit by taking advantage of state law and the unwary claimant. This is exactly what happened in Cooper v. United States.
On June 25, 2005, the plaintiff received contraindicated treatment at the VA Hospital in Philadelphia, which caused him an arm injury.

The plaintiff filed an administrative complaint to VA on June 29, 2007.

VA delayed its decision till July 17, 2012 (!!). On that day, it denied the plaintiff’s claim because its investigation “did not reveal evidence of any negligent or wrongful act or omission.”
In December 2012, the plaintiff filed a malpractice suit. The plaintiff thus complied with both the two-year statute of limitations for filing an administrative claim with the agency and the six month limitation period for filing a lawsuit in the District Court following a final denial. 28 U.S.C. § 2675(a).

VA nonetheless moved to dismiss the suit based on Pennsylvania’s repose statute, 40 Pa. Con. Stat. § 1303.513(a), which provides that “[N]o cause of action asserting a medical professional liability claim may be commenced after seven years from the date of the alleged tort or breach of contract.” According to VA, the plaintiff was six months late to file his suit.
The court sided with the plaintiff, holding that FTCA preempts Pennsylvania’s repose statute under the Supremacy Clause. Administrative processing of claims under FTCA, it explained, is crucial for effective implementation of the statutory policies. Preemption occurs here because state law stands as a significant impediment to the federal scheme.

Correspondingly, the court ruled that once a claimant has filed an administrative claim within any applicable state repose period, FTCA preempts further application of that repose statute to bar a lawsuit filed after the administrative claim is denied.

This decision ignores the Seventh Circuit decision in Augutis v. United States, — F.3d —, 2013 WL 5553084 (7th Cir. 2013). Augutis ruled that FTCA’s jurisdictional grant to hold the government liable for tort damages “only covers ‘circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.’” (quoting Morisch v. United States, 653 F.3d 522, 530 (7th Cir. 2011)). Hence, FTCA “does not expressly preempt state statutes of repose … to the contrary, it expressly incorporates [them].” FTCA only sets aside limitations statutes conflicting with 28 U.S.C. §§ 2401(b), 2675(a).

Importantly, the Seventh Circuit also decided that administrative claim does not stop the repose period: only a suit filed in court can have this effect. Under this interpretation of FTCA, the plaintiff in Cooper should have sued the United States in court before June 2012 without waiting for VA’s disposition of his claim.

For my discussion of Augutis, see here.

January 17, 2014

Medical Publications as Evidence

Klein v. Aronchick, — A.3d —, 2014 WL 46648 (Pa. Super. 2014)

This important causation decision, analyzed separately in this Journal, features a defense expert who testified about the truth of the scientific conclusions that appeared in certain medical treatises. The expert also bolstered his testimony by referring to the New England Journal of Medicine as “probably the world’s most prestigious medical journal,” “the final word on most things,” and “proven good science.” He further testified that “If you published there you made the big time. All the important authors, and professors, and doctors want to get published in the New England Journal” and that “You can’t get an article in the New England Journal unless it’s topnotch and your colleagues believe it’s state-of-the-art and it’s proven good science.”

The trial court admitted this testimony over the plaintiff’s objection. However, the appellate court agreed with the plaintiffs, who complained that the testimony was an implicit invitation to the jury to view the publications’ substance as true. The court decided that the expert “was clearly bolstering, attempting to use medical articles published in the New England Journal to increase the credibility of his own opinion in the minds of the jury.” This finding was among the court’s reasons to reverse and remand the case for a new trial.

I can see nothing wrong in what the trial judge did here, assuming that the publications were only “read into evidence but not received as an exhibit.” See Fed. R. Evid. 803(18), and I can’t believe that Pennsylvania has a law that differs from this rule.