ISSUE 2:4, April 2014 – Recent Developments

On the “Similar Specialty” Requirement and the Exceptions Thereto

April 24, 2014

Torres v. Carrese, — A.3d —, 2014 WL 1464334 (Conn.App. 2014)

The plaintiff sued her obstetricians/gynecologists for negligent removal of her placenta following a C-section. The placenta invaded the wall of the plaintiff’s bladder causing substantial bleeding and requiring a hysterectomy. The plaintiff claimed that the defendants were unprepared for the required procedure and carried it out without adequate care. As a result, she sustained damage to her bladder and uterus and became incontinent. The defendants moved to dismiss the suit because it was not accompanied by an opinion from a “similar health care provider,” as required under Connecticut statute, Gen. Stat. § 52–190a (a). Specifically, they argued that the suit was accompanied by an expert opinion from a urologist, as opposed to a board certified ob-gyn.  See Bennett v. New Milford Hospital, 12 A.3d 865 (Conn. 2011) (holding that a written opinion letter pursuant to § 52–190a must be from a “similar health care provider,” as defined in § 52–184c, and that an insufficient written opinion letter requires dismissal of action).

The plaintiff relied on the exception to the “similar health care provider” requirement, Gen. Stat § 52–184c (c).  Under this exception, where “the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a ‘similar health care provider’.” The plaintiff argued in this connection that the treatment she received from the defendants was urological.

The appellate court rejected the plaintiff’s argument. The court explained that, although a substantial part of the plaintiff’s alleged damage was urological, this damage occurred when one of the defendants, an ob-gyn, “was performing a hysterectomy, an obstetric-gynecological procedure, because of the plaintiff’s condition of placenta percreta, an obstetric condition.” The applicability of the Gen. Stat § 52–184c (c) exception – held the court – is determined strictly by the nature of the procedure carried out by the defendant.

Medical Malpractice or General Negligence? A Redux

April 20, 2014

Dawkins v. Union Hospital District, — S.E.2d —, 2014 WL 1386880 (S.C. 2014)

Whether a tort action sounds in “medical malpractice,” as opposed to “general negligence,” or vice versa, is often critical. Medical malpractice actions must satisfy special requirements that include shortened limitations periods, statutes of repose, expert affidavits, and merit certificates. Suits sounding in ordinary negligence need not satisfy those requirements. Filing and prosecuting those suits is therefore not as onerous and expensive as filing and prosecuting medical malpractice actions.

In Dawkins v. Union Hospital District, — S.E.2d —, 2014 WL 1386880 (S.C. 2014), a hospital emergency room admitted a patient complaining about instability and possible stroke symptoms. Prior to receiving treatment, the patient attempted to use the restroom and fell, fracturing her right foot. In the ensuing malpractice suit, the patient claimed that the hospital was negligent in “failing to keep a watchful eye on a person who had originally complained of dizziness, headaches and instability.” The hospital moved to dismiss the suit due to the patient’s failure to file an expert affidavit and “notice of intent,” in violation of S.C. Code Ann. § 15–79–125(A) (Supp. 2012) – a statute providing that “Prior to filing or initiating a civil action alleging injury or death as a result of medical malpractice, the plaintiff shall contemporaneously file a Notice of Intent to File Suit and an affidavit of an expert witness.” The patient argued that this special filing was not required because her suit sounded in premises liability and not in medical malpractice. Specifically, she claimed that she was the hospital’s business invitee and that the hospital owed her a duty to guard against premises hazards. The trial court agreed with the hospital and dismissed the patient’s suit. The appellate court affirmed that decision.

The South Carolina Supreme Court reversed. The Court observed that “the distinction between medical malpractice and negligence claims is subtle” and that “there is no rigid analytical line separating the two causes of action” (citing Estate of French v. Stratford House, 333 S.W.3d 546, 555-56 (Tenn. 2011)). The Court also underscored that, although adjudication of medical malpractice actions generally requires medical expert testimony, “not every injury sustained by a patient in a hospital results from medical malpractice or requires expert testimony to establish the claim.” Examples of actions falling into the latter “general negligence” category are abundant. According to the Court, they include cases involving injuries caused by “falling ceiling tiles or improperly maintained hallways or parking lots” or by “nonmedical, administrative, ministerial, or routine care” mistakes.

Based on these criteria, the Court categorized the patient’s complaint as general negligence because it “makes clear that she had not begun receiving medical care at the time of her injury, nor does it allege [that] the Hospital’s employees negligently administered medical care. Rather, the complaint states that [the patient’s] injury occurred when she attempted to use the restroom unsupervised, prior to receiving medical care.”

The Court’s decision is open to criticism. First, for patients already admitted to hospital, falling accidents are generally categorized as medical malpractice (Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011) (categorizing suit by a hospital patient who slipped on a wet floor while getting out of a bathtub as a “healthcare liability” claim); Littlepaige v. United States, 528 Fed.Appx. 289, 2013 WL 2501744 (4th Cir. 2013) (veteran patient’s FTCA claim against hospital alleging failure to follow dementia-related falls-precaution protocol categorized as sounding in medical malpractice under North Carolina law, which obligated patient to submit certification from a qualified medical expert)). For not-yet-admitted patients, the categorization can go both ways depending on the specifics of the negligence allegations against the hospital.

As in many other areas of tort law, here too, everything depends on the “untaken precautions” analysis (for seminal accounts of the “untaken precautions” approach, see Mark F. Grady, Untaken Precautions, 18 J. Legal Stud. 139 (1989); Mark F. Grady, A New Positive Economic Theory of Negligence, 92 Yale L.J. 799 (1982)). In the case at bar, no allegation was made that the restroom was unsafe for people’s use (e.g., that its floor was dangerously slippery). The alleged untaken precaution was the ER personnel’s failure to accompany the patient in the restroom. This failure could only constitute medical malpractice rather than ordinary negligence. The reason is simple: premises owners have no duty to accompany an adult person in a restroom. The patient’s claim that she ought to have been accompanied in the restroom was based on her medical condition, of which the ER personnel arguably should have been aware. If so, the fact that the patient hasn’t yet been admitted to ER was inconsequential. The extent to which hospitals are obligated to give medical attention to patients not yet admitted to ER depends on the applicable medical standards and the specifics of the “emergency room doctrine” in the given jurisdiction (see here).

The patient therefore had to submit the requisite expert affidavit and notice of intent. She could not use her “not admitted” status to categorize her suit as “premises liability” while complaining about the hospital’s failure to take precautions that only need to be taken for protecting patients in a certain medical condition. Importantly, not all individuals awaiting ER admission need to be accompanied in the restroom. To establish her entitlement to this special precaution, the patient could only rely on the applicable ER standards, as opposed to general premises liability. For further discussions of “medical malpractice vs. general negligence,” see hereherehereherehere, and here.

Mental Therapist’s Duty to Prevent Patient’s Crime

April 18, 2014

Connecticut Supreme Court in Greenwald v. Van Handel, — A.3d —, 2014 WL 1388181 (Conn. 2014)

A clinical social worker hears from his patient about the patient’s interest in child pornography, but does nothing to solve the problem. Later on, the police raids the patient’s house to find evidence that he illegally downloaded, viewed and possessed child pornography. The patient now faces criminal charges.

Can he sue the social worker for malpractice? Would a similar suit be available against a psychiatrist?

This issue came up before the Connecticut Supreme Court in Greenwald v. Van Handel, — A.3d —, 2014 WL 1388181 (Conn. 2014). The Court decided that harms originating from the patient’s criminal investigation, trial, conviction, and punishment are not actionable.  Holding mental therapists accountable for those harms—it explained—would violate public policy.

The Court backed this decision by three precedents from other jurisdictions: Oden v. Pepsi Cola Bottling Co. of Decatur, Inc., 621 So.2d 953, 954–55 (Ala.1993) (precluding father’s tort action against soft drink company when son was killed tilting vending machine while attempting to steal drinks); Orzel v. Scott Drug Co., 537 N.W.2d 208 (Mich. 1995) (denying compensation to plaintiff who fraudulently obtained drugs from negligent pharmacy, owned by defendant, and developed addiction); Barker v. Kallash, 468 N.E.2d 39 (N.Y. 1984) (precluding action against gunpowder supplier for blast injuries that plaintiff sustained while constructing illegal pipe bomb). Based on these precedents, the Court held that the social worker owed no duty to the patient.

This decision strikes me as wrong. In each of the precedents cited by the Court, the plaintiff claimed to be entitled to precautions that could have made it safer for him to carry out his criminal activity. This claim obviously runs against public policy. In the case at bar, however, the plaintiff made no such claim. Instead, he argued that the defendant could prevent him from committing the crime by doing what he was professionally obligated to do as a clinical social worker. For that reason, the court’s resort to the principle “one’s criminal conduct cannot give him a cause of action” (ex dolo malo nor oritur actio) was misguided.

As suggested by Justice Eveleigh in his dissenting opinion, the plaintiff’s suit ought to have failed or partially succeeded on causation grounds. The law-enforcement actions he was subjected to responded to his criminal activities. Hence, if the plaintiff acted voluntarily, he may have been contributorily negligent (or 100% comparatively negligent). Alternatively, the plaintiff’s mental condition may have weakened his ability to curb his perverse desire for child pornography, in which case his comparative negligence would be less than 100%. The plaintiff therefore deserved a trial after showing that the defendant was professionally obligated to guard against his engagement in child pornography.

Implications of the NAF Fiasco for Nursing Home Agreements

April 6, 2014

Until recently, the National Arbitration Forum (NAF) was a designated arbitrator in thousands of nursing home agreements. When a nursing home resident complained about medical malpractice or other mistreatment, her complaint had to be arbitrated before NAF and according to NAF’s rules. If the resident or her successors were to sue the nursing home in court, the court would have to stay the proceeding and compel arbitration, as mandated by Section 2 of the Federal Arbitration Act (FAA) that deems written arbitration agreements “valid, irrevocable, and enforceable.”

Five years ago, things have changed dramatically. In July 2009, the Minnesota Attorney General filed a complaint against NAF and related entities, accusing them of violations of the Minnesota Prevention of Consumer Fraud Act. The complaint alleged that NAF held itself out to the public as an independent arbitration company, while at the same time working against consumers’ interests and that it “earns revenue when it convinces companies to place mandatory predispute arbitration agreements in their customer agreements and then to appoint the Forum to arbitrate any future disputes.” Shortly thereafter, the parties entered into a consent judgment under which NAF agreed that it would not administer, process, or participate in any consumer arbitration filed on or after July 24, 2009.

This judgment effectively annulled the arbitration clause in thousands of agreements between nursing homes and residents.

On a number of occasions, the nursing home claimed that the arbitration clause is still valid and that the parties are now obligated to substitute NAF by a different arbitral forum, pursuant to FAA, Section 5. This claim did not succeed. Courts have rejected it by applying the “ancillary/integral” distinction. Riley v. Extendicare Health Facilities, Inc., 826 N.W.2d 398 (Wis.App. 2012); Estate of Cooper v. Evangelical Lutheran Good Samaritan Soc., 2013 WL 4526274 (N.M.App. 2013); Miller v. GGNSC Atlanta, 746 S.E.2d 680 (Ga. App. 2013); Sunbridge Retirement Care Associates v. Smith, — S.E.2d —, 2014 WL 1227725 (Ga.App. 2014).

Specifically, the courts held that Section 5 only applies when “the agreement shows that the selection of a particular [arbitration] forum was merely an ‘ancillary logistical concern.’” Conversely, “If the selection of a particular forum is integral to the agreement, Section 5 does not apply, and the entire agreement is deemed impossible to enforce.” The nursing home agreements combined NAF’s designation as an arbitrator with a provision that the arbitration will follow the NAF’s Code of Procedure. Based on these two factors, the courts ruled that the choice of NAF was integral to the agreement. The aggrieved nursing home residents and their successors are now free to file their suits in court.