ISSUE 2:2, February 2014 – Recent Developments

February 28, 2014

Merit Affidavits and Causation

Nield v. Pocatello Health Services, — P.3d —, 2014 WL 585944 (Idaho 2014)

Idaho is one of many states that require plaintiffs to accompany suits against doctors by expert affidavits. An affidavit must verify the plaintiff’s allegations about the doctor’s substandard treatment that caused him injury. The Idaho Supreme Court has recently applied this requirement in Nield v. Pocatello Health Services, — P.3d —, 2014 WL 585944 (Idaho 2014).

This case involved a plaintiff who filed a suit against medical center in which she complained about negligent wound care and unsanitary conditions that resulted in the amputation of her leg. An expert affidavit filed with that suit opined that the center’s negligence was responsible for the plaintiff’s injury. The plaintiff’s expert, however, failed to address alternative causes of the injury that the defendant and its expert claimed to be dominant. These causes included the plaintiff’s preexisting medical conditions.

The Idaho Supreme Court ruled that the affidavit nonetheless makes a prima facie case for the plaintiff. The Court observed that the plaintiff’s expert did not follow – and did not have to follow – the differential etiology method that involves “an analysis of all hypotheses that might explain the patient’s symptoms or mortality. After identifying all of the potential causes of symptoms, the expert then engages in a process of eliminating hypotheses in order to reach a conclusion as to the most likely cause.” The Court explained that when a plaintiff files an expert affidavit that relies on differential etiology, the trial court would be “justified in excluding the expert’s testimony if the expert fails to offer an explanation why an alternative cause is ruled out.” However, the Court clarified in this connection that “Differential diagnosis is merely an alternate means of establishing causation where there are several potential causes of symptoms and there is insufficient scientific basis to conclusively establish any one potential cause. Where a specific cause of a patient’s symptoms can be stated to a reasonable medical certainty, there is no place for this alternate means of establishing causation.” Consequently, a plaintiff’s expert only needs to show that the defendant’s malpractice was among the potential causes of the injury. This showing, held the Court, should move the plaintiff’s case to the jury.

This decision is correct. The plaintiff’s expert fully verified her allegations of malpractice against the defendant. The expert could not conclusively verify the requisite causal nexus because of the plaintiff’s preexisting medical condition. This problem is systemic and well-known: patients with serious preexisting conditions are generally unable to causally associate their injuries to their doctors’ malpractice. Aware of this problem, courts across the nation have designed special rules that allow wronged patients to recover compensation even when they are unable to prove causation by a preponderance of the evidence. Those rules prevent malpractitioners from finding refuge in the causal indeterminacy of their victims’ injuries. Under those rules, differential etiology is one of several methods of proving causation. This method is optional and plaintiffs are free to use alternative methods.

The Idaho Supreme Court thus continued the nationwide policy of narrowing malpractitioners’ exits from liability. This policy interplays with the stringent procedural and evidentiary requirements that narrow doctors’ entry into liability for equally good reasons. See here. The expert’s affidavit, as I already mentioned, have satisfied these requirements.

February 21, 2014

The Special Case of “Medical Battery”

Shuler v. Garrett— F.3d —, 2014 WL 563272 (6th Cir. 2014)

Under Tennessee law, a patient suing her doctor for medical malpractice or informed-consent violation must satisfy a heightened pleading requirement: her complaint must provide a detailed factual account of the alleged wrongdoing. Moreover, the patient’s malpractice allegations must be supported by an affidavit from a qualified expert witness.

The United States Court of Appeals for the Sixth Circuit recently decided that a patient’s suit need not satisfy these requirements when it sounds in “medical battery”: a procedure or treatment carried out against the patient’s will. The Court explained that Tennessee law separates medical battery from a lack of informed consent to the treatment. In an informed consent case, “the threshold question …. is whether the patient’s lack of information negated her consent.” In a medical battery case, on the other hand, “the question is much simpler: Did the patient consent at all?”

The Court also distinguished medical battery from medical malpractice. Under this distinction, a medically proper treatment, far removed from the “malpractice” definition, still constitutes battery when the patient gives no consent to that treatment.

In the case at bar, medical staff injected the patient with heparin in violation of “her specific directive not to give her heparin of any kind.” The plaintiffs claimed that this injection constituted medical battery and that the patient’s allergic reaction to heparin resulted in her death. Based on the above-mentioned distinctions, the Sixth Circuit held that, under Tennessee law, “administration of drugs over the patient’s objections or despite the patient’s contrary instruction is a medical battery.” (Incidentally, Arizona has the same law: Duncan v. Scottsdale Med. Imaging, 70 P.3d 435, 441 (Ariz. 2003)). Consequently, the plaintiff’s suit need not satisfy the heightened pleading and expert affidavit requirements.

Ironically, this exemption may be of no consequence for diversity and other suits filed in federal courts. Those suits must satisfy the heightened “plausibility” standard set by Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). To satisfy this standard in a medical injury case, the plaintiff would usually have to provide a detailed account of the alleged wrongdoing and support this account by expert testimony.

February 9, 2014

The Limits of the Peer Review Privilege

Harrison v. Munson Healthcare, Inc., — N.W.2d —, 2014 WL 340895 (Mich.App. 2014)

This decision of the Michigan Court of Appeals demarcates the limits of the peer review privilege under Michigan law. The decision is also important in that it carries out a cross-jurisdictional comparison between peer review privileges and their judicial interpretation.

Michigan’s peer review statute requires hospitals to “assure that physicians and dentists admitted to practice in the hospital are organized into a medical staff to enable an effective review of the professional practices in the hospital for the purpose of reducing morbidity and mortality and improving the care provided in the hospital for patients. The review shall include the quality and necessity of the care provided and the preventability of complications and deaths occurring in the hospital. …. The records, data, and knowledge collected for or by individuals or committees assigned a review function …. are confidential and …. shall not be public records, and shall not be available for court subpoena.” MCL 333.21513(d), 333.21515.

The Court interpreted this statutory provision as distinguishing between factual information reporting contemporaneous observations or findings, and “records, data, and knowledge” gathered to permit an effective review of professional practices. This interpretation separated facts concerning a patient’s care, and in particular facts incorporated within incident reports, that the patient is entitled to receive—and that are consequently unprivileged—and a confidential deliberative review process. The Court explained that “it is not the facts themselves that are at the heart of the peer review process. Rather, it is what is done with those facts that is essential to the internal review process, i.e., a candid assessment of what those facts indicate, and the best way to improve the situation represented by those facts.”

The peer review privilege, the Court clarified, “may not be used as a shield to obstruct proper discovery of information generated outside review committee meetings. The [privilege] does not grant an immunity to information otherwise available from original sources. For example, any information from original sources would not be shielded merely by its introduction at a review committee meeting. Further, the hospital must identify all persons who have knowledge of the underlying event which is the basis of the malpractice action regardless of whether those persons presented evidence to a hospital review committee.”

Based on the above reasons and the “work-product” view of the privilege, the Court explained that “mere submission of information to a peer review committee does not satisfy the collection requirement so as to bring the information within the protection of the statute.” In particular, “facts contained in the incident report, as opposed to the conclusions drawn in the report” are not privileged. These facts should have been documented in the patient’s medical record and are consequently discoverable (and admissible as evidence).

February 2, 2014

Sexual Abuse by a Gynecologist Meets Tort Reform

Cady v. Schroll, — P.3d —, 2014 WL 265551 (Kan. 2014)

A gynecologist’s patient filed a suit alleging that he touched her inappropriately and made sexually charged comments during her office visits. The suit was filed against the gynecologist and his employer. The plaintiff’s allegations against the gynecologist included medical negligence and intentional infliction of emotional distress. Her cause of action against the employer consisted of negligent supervision and negligent infliction of emotional distress. After settling her suit against the gynecologist for an undisclosed amount, the plaintiff attempted to proceed with her action against the employer. The employer moved for summary judgment, which was granted by the trial judge and affirmed by the court of appeals.

The plaintiff’s appeal to the Supreme Court of Kansas was equally unsuccessful. Her gynecologist’s employer was a health care provider qualified for malpractice insurance coverage under the Health Care Stabilization Fund created by the Health Care Provider Insurance Availability Act (K.S.A.). Under K.S.A. 40–3403(h), the employer “shall have no vicarious liability or responsibility for any injury … arising out of the rendering of or the failure to render professional services … by any other health care provider who is also qualified for coverage under the fund.” This statutory provision creates an insurance based liability scheme that shifts the financial responsibility for doctors’ malpractice to their insurers. For that reason, the Court decided that employers’ immunity against suit under K.S.A. 40–3403(h) should be construed broadly to include not just vicarious liability, but also direct liability for negligent credentialing, or negligent supervision, of stuff and all other forms of institutional liability.

This decision is correct. The plaintiff, however, could have tried a more promising cause of action. She should have sued the gynecologist for assault—a cause of action that falls outside the scope of “professional services” covered by K.S.A. This cause of action would have allowed the plaintiff to ascribe vicarious liability to the gynecologist’s employer. An argument that the plaintiff tries to bypass the tort reform by artificially re-characterizing medical negligence into sexual assault would fail. If the plaintiff’s allegations are true, then she was sexually assaulted. Describing her as a recipient of substandard medical care would be factually false. Moreover, using the Health Care Stabilization Fund as an underwriter for sexual abusers is hardly a good idea.

February 2, 2014

The Battle of Privileges

When a patient files a malpractice suit against a doctor, she waives the evidentiary privilege that protects the information pertaining to her treatment by the doctor. This information extends to all communications between the patient and the doctor, the patient’s medical history, diagnosis, treatment, and medical records. The patient’s waiver of the privilege is not absolute. Rather, it relates only to information and documents needed for the doctor’s defense. The same principle applies to the patient’s treating physician whom she did not sue. The defendant is entitled to subpoena this nonparty physician and obtain from her information and documents relevant to his defense.

To realize this entitlement, the defendant’s attorney needs to interview the nonparty physician before trial. The patient’s attorney demands to be present at that interview to protect her client’s privilege by appropriately limiting the physician’s questioning by the defendant’s attorney. The defendant’s attorney counters this demand by invoking the attorney-client privilege and its “work product” extension.

This battle of privileges has no easy solution. When a nonparty physician works for the hospital sued by the patient, the hospital might be able to secure the physician’s ex parte interview by its attorney by invoking the physician’s reporting duty that can be found in licensing statutes: see, e.g., Burger v. Lutheran General Hospital, 759 N.E.2d 533 (Ill. 2001). Not all states, however, have a statute that provides for unlimited intrahospital communications. Furthermore, the patient’s physician may have no employment or other relationship with the defendant. The problem at hand consequently calls for a comprehensive solution.

The Florida Supreme Court had resolved this problem by according victory to the doctor-patient privilege: Hasan v. Garvar, 108 So.3d 570 (Fla. 2012). The Court reasoned that this privilege is defined by statute broadly enough to prevent any ex parte communication between the patient’s physician and the defendant’s attorney. However, the Court did not address the attorney-client privilege: it was only mentioned in Chief Justice Polston’s dissent.

In Youngs v. PeaceHealth, — P.3d —, 2014 WL 265568 (Wash. 2014), the Supreme Court of Washington handed down an innovative solution to this problem. The Court divided the interviewed physician’s information into two parts: (1) the core part, which includes the physician’s “direct knowledge of the event or events triggering the litigation”; and (2) the peripheral part, which includes other medical information potentially relevant to the case. Based on that distinction, the Court decided that the attorney-client privilege trumps the doctor-patient privilege where an ex parte interview enables the defendant’s attorney to access the facts of the alleged negligent incident. As for peripheral information, the Court decided that the patient’s right to supervise her nonparty physician’s communications with opposing counsel stays intact. For purposes of this ruling, peripheral information includes information about the patient’s “prior and subsequent treatment (information about the [patient’s] particular vulnerabilities or the nature of the [patient’s] recovery or disabilities).” The Court has also clarified that “a trial court may not restrict communications between a hospital’s employees and quality improvement committee but that members of the committee must be screened from defense counsel in an action against the hospital for negligence or medical malpractice.”

The Court’s approach to the battle of privileges has a potential drawback. Fine-tuned rules are costly to implement. By setting up a rule that depends on the not-always-clear distinction between core and peripheral information, the Court has created a new battlefield for costly satellite litigation far removed from the merits of the case. Under the new regime, defense attorneys will routinely try to establish that the plaintiff’s waiver of the doctor-patient privilege extends to peripheral medical information as well because it is relevant to the case. Extending the patient’s waiver in this way would entitle the defense attorney to have an ex parte interview with the nonparty physician.

A far better alternative, in my opinion, was to let the attorney-client privilege win the battle. Defense attorneys would then be able to obtain some information that should be protected by the doctor-patient privilege. The ensuing loss of the patient’s privacy, however, would be minimal because defense attorneys have no economic incentives to gather irrelevant information (for information relevant to the patient’s malpractice suit the privilege will be waived). Society’s saving from the elimination of satellite litigation would consequently exceed this loss.