Issue # 2:11, November 2014

Doctors’ Peer Review Privilege in Utah

Allred v. Saunders, — P.3d — (Utah 2014)

In this case, the Utah Supreme Court adjudicated an important discovery dispute between a patient and a hospital.  An allegedly ill-performed procedure was followed by the hospital’s internal incident investigation. The plaintiffs sought discovery of the investigation and the credentialing files of the doctor who performed the procedure.

The hospital and the doctor petitioned for a protective order pursuant to Utah Rule of  Civil Procedure 26(b)(1) that provides the following:

“Privileged matters that are not discoverable or admissible in any proceeding of any kind or character include all information in any form provided during and created specifically as part of a request for an investigation, the investigation, findings, or conclusions of peer review, care review, or quality assurance processes of any organization of health care providers … for the purpose of evaluating care provided to reduce morbidity and mortality or to improve the quality of medical care, or for the purpose of peer review of the ethics, competence, or professional conduct of any health care provider.”

The Court held that this petition ought to have been granted, conditional on a proper factual foundation, since Utah R. Civ. P. 26(b)(1) has created a broad evidentiary privilege. The Court then remanded the case for an individualized assessment as to the applicability of the privilege.

“Proximate Cause” and the Patient Suicide Problem

Truddle v. Baptist Memorial Hosp.-Desoto, Inc., — So.3d — (Miss. 2014)

A hospital patient suffering from a number of illnesses became agitated and aggressive. He took the IV out of his arm and attempted to leave the hospital. When nurses stopped him and forced him back to his room, he hallucinated that someone was trying to rape him.

Despite these psychiatric symptoms, the patient was discharged and treated as an outpatient. During his outpatient treatment, he complained to his doctor that the medications he was taking “make him crazy.” Six days after his release from the hospital and two days after his last outpatient appointment, the patient barricaded himself in his bedroom and committed suicide.

In the ensuing action for wrongful death, the patient’s mother alleged that his doctors negligently failed to prevent his suicide. The Mississippi Supreme Court ruled that this action is doomed to direct dismissal due to its manifest failure to show proximate cause. The Court explained that “Nothing in Mississippi caselaw, save the irresistible-impulse doctrine, … abrogates the general rule that suicide constitutes an independent, intervening and superseding event that severs the causal nexus between any wrongful action on the part of the defendant.” This principle, the Court further explained, extends to medical-malpractice claims. Because the suit filed by the patient’s mother did not go beyond “an argument that [the defendants] were negligent in not recommending a psychiatric evaluation,” it did not show a cause of action. According to the Court, only an “intentional conduct on the part of [the defendants] that proximately created an irresistible impulse in [the patient] to commit suicide” was actionable under Mississippi law.

Mississippi law thus uses the old “contest of faults” approach to the superseding cause doctrine. By my lights, this approach should be substituted by the “scope of the risk” analysis recommended by the Third Restatement of Torts. Carrying out that analysis could have shown that the patient’s suicide scenario fell within the scope of the risk engendered by the defendants’ malpractice. Remarkably, the Mississippi approach to the patient suicide problem contrasts with the opposite trend in Georgia: see Georgia Clinic v. Stout, — S.E.2d —, 2013 WL 3497703 (Ga. App. 2013) – a case that I discussed and criticized here.

Statute of Limitations under “Open Courts” Challenge: Minors Can Sue

Kordus v. Montes, — P.3d — (Wyo. 2014)

Wyoming’s statute of limitations provides that a minor’s medical malpractice suit must be filed “by his eighth birthday or within two … years of the date of the alleged act, error or omission, whichever period is greater.”

A minor whose action was barred under this statute challenged the statute’s constitutionality before the Wyoming Supreme Court. This challenge invoked the “open courts” provision of the Wyoming Constitution. Under this provision, Article 1, Section 8, “All courts shall be open and every person for an injury done to person, reputation or property shall have justice administered without sale, denial or delay.”

The Court adjudicated this challenge by applying the “means-ends” scrutiny, also followed by courts in other jurisdictions. The Court held that the limitations provision was unconstitutional in that it unfairly and unreasonably abrogated a child’s medical malpractice cause of action when the child is not at fault.

This holding followed similar decisions made by the Supreme Courts of Texas, Missouri, Ohio, Maryland, and Arizona: Sax v. Votteler, 648 S.W.2d 661 (Tex. 1983); Strahler v. St. Luke’s Hosp., 706 S.W.2d 7 (Mo. 1986); Mominee v. Scherbarth, 503 N.E.2d 717 (Ohio 1986); Piselli v. 75th Street Medical, 808 A.2d 508 (Md. 2002); Barrio v. San Manuel Div. Hosp. for Magma Copper Co., 692 P.2d 280 (Ariz. 1984). The Court also followed its own prior ruling in relation to a different statute: Dye v. Fremont County School Dist. No. 24, 820 P.2d 982, 985 (Wyo. 1991) (“we cannot allow a minor, who has no realistic ability to protect herself, to suffer loss of her claim because of a parent’s failure to act”), while refusing to follow the Supreme Courts of Virginia and Massachusetts that upheld the constitutionality of a similar provision (Willis v. Mullett, 561 S.E.2d 705 (Va. 2002); Harlfinger v. Martin, 754 N.E.2d 63 (Mass. 2001)).