Issue 2:10, October 2014 – RECENT DEVELOPMENTS

Failed Communication between Physicians: Medical Malpractice or Ordinary Negligence?

Zamora v. St. Vincent Hosp., — P.3d — (N.M. 2014)

In this case, the New Mexico Supreme Court ruled that a patient’s allegation that physicians’ communication failure had denied him proper treatment sounds in general negligence and not in medical malpractice and, consequently, requires no expert testimony.

In the case at bar, a hospital patient alleged that as the result of a communication failure between a surgeon and a contract radiologist, the hospital failed to tell him about his cancer diagnosis. The Court decided that the patient need not verify this allegation by calling a medical expert. It explained that “Communication between medical personnel is not a matter that requires expert knowledge to understand the standard of care involved. A party may be able to establish that a departure from the standard of ordinary care occurs when a clerical error affects the timeliness or accuracy of a diagnosis.” This decision relied on precedents from other jurisdictions.

I believe that such cases are best decided individually under the “common knowledge” exceptions. There are cases in which experts may be needed to testify about doctors’ internal communication standards.

Affidavit of Merit Requirement Limited to Allegations of Medical Malpractice

McQuade v. Ghazal Mountain Dental Group, 2014 WL 4804063 (Nev. 2014)

This short decision of the Nevada Supreme Court explains that a medical expert’s affidavit of merit is only required for verifying malpractice allegations against doctors. Accompanying allegations that accuse a hospital or a clinic of negligently hiring the defaulting physician and claims sounding in vicarious liability require no such verification.

Another Blow to Nursing Home Arbitration Agreements

Boler v. Security Health Care, L.L.C., — P.3d — (Okla. 2014)

Most, if not all, nursing homes have their residents sign an agreement to arbitrate any dispute or disagreement arising out of or in connection with the care rendered to the resident by the nursing home, including claims by the resident involving, and/or arising out of conduct committed by the nursing home and/or its agents, employees, or others for whom and/or which the nursing home is, may be, or is asserted to be, legally responsible. Such agreements also stipulate that they will apply to and bind any and all persons and/or entities who and/or which may assert a claim on behalf of, or derived through, the resident, including, without limitation, the resident’s legal representative, guardians, heirs, executors, administrators, estate(s), successors and assigns.

Ostensibly, such agreements compel arbitration on the resident’s survivors who claim that the resident died prematurely as a result of the nursing home’s neglect. The Federal Arbitration Act (FAA), as interpreted in AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740 (2011), seems to support this observation. This Act requires state and federal courts to enforce arbitration agreements similarly to other contracts. Pursuant to this Act, when a resident’s survivor files a wrongful death suit against the nursing home, the court must stay the proceeding and direct the parties to arbitration.

However, a recent decision of the Oklahoma Supreme Court, Boler v. Security Health Care, L.L.C., — P.3d —- (Okla. 2014), has shown that this appearance is misleading. The Court held that the arbitration agreement will only be effective when the survivor’s suit is wholly derivative, as opposed to being independent or only partly derivative. Under the “wholly derivative” criterion, the survivor will be bound by the arbitration agreement only when she inherits the decedent’s entire suit against the nursing home and has no independent suits of her own. That is, when the survivor stands in the decedent’s shoes as his or her heir, she must arbitrate; but when she sues the nursing home based on her own legal entitlement, the arbitration agreement between the decedent and the nursing home does not bind her.

In the case at bar, the resident’s survivors filed their action under Oklahoma law that distinguishes survivor actions (those that could be brought by the decedent while alive) from suits for wrongful death maintained by the decedent’s surviving spouse, children, and parents. Suits for wrongful death are filed to realize the plaintiff’s direct, as opposed to derivative, claims for the following damages: “the loss of consortium and grief of the surviving spouse; … the pecuniary loss to the survivors based on the projected duration of the decedent’s life, which must inure to the exclusive benefit of the surviving spouse and children; and grief and loss of companionship of the parents and children of the decedent.”

These independent claims do not belong to the decedent, and for that reason, the decedent cannot bind the beneficiaries to arbitrate those claims. As the Court explained, “although the FAA favors arbitration when it is the parties’ contractual choice of a remedial forum, courts will not impose arbitration upon parties where they have not agreed to do so.” Based on these reasons and precedents from other states—in particular, Carter v. SSC Odin Operating Co., LLC, 976 N.E.2d 344 (Ill. 2012)—the Court decided that the survivors are not bound by the arbitration agreement.

The Specificity Standard for Affidavits of Merit

Zohar v. Zbiegien, 334 P.3d 402 (Nev. 2014)

This important decision of the Nevada Supreme Court addresses the specificity requirement for affidavits of merit.

The plaintiffs’ child was treated by hospital doctors for a finger injury. Allegedly, the bandage doctors put on his finger was too tight. This mistake resulted in the venous/arterial flow compromise in the finger and in the finger’s partial amputation.

The ensuing malpractice suit was supported by an affidavit of merit from a medical expert. The affidavit described the child’s treatment, summarized the relevant medical records and photos, and specified the allegedly negligent activities of several individuals, as well as the activities of “the staff of the emergency department of [the hospital], including but not limited to the responsible physician or physicians, nurse or nurses, and/or ancillary emergency department staff.”

Because the affidavit did not identify the negligent doctors by name, the defendants argued that it was defective and asked the court to strike it out together with the suit.

The Nevada Supreme Court disagreed. The Court noted that the merit-affidavit requirement was enacted to deter baseless medical malpractice suits, fast track medical malpractice cases, and provide defendants with notice of the claims – “while also respecting the injured plaintiff’s right to litigate his or her case and receive full compensation for his or her injuries.” In tune with this statutory goal, the Court held that an affidavit only needs to show that the plaintiff’s suit is “not frivolous or filed in bad faith”; and it also must give defendants “sufficient notice of the nature and basis of the [plaintiff’s] medical malpractice claims against them.” The Court also clarified that the affidavit submitted by the plaintiffs must be read together with their complaint. The Court then ruled that the affidavit satisfied the requisite dual standard without identifying the defendants by names.

The Court added in this connection that the same approach is taken by the majority of other states and that “a harsh interpretation [of the merit-affidavit requirement] would undoubtedly deny many litigants the opportunity to recover against negligent parties when the medical records available to the plaintiff do not identify a negligent actor by name—especially in res ipsa loquitur cases in which the parties are simply unable to identify the negligent actor.”

The Court’s decision is exactly right, but the “res ipsa” dictum is puzzling. Does the Court intend to bring Ybarra v. Spangard, 154 P.2d 687 (Cal.1944), back into the law!?