Issue # 3:10, October 2015

Understanding “Lost Chances to Recover” (and Looney v. Moore)

Looney v. Moore, 2015 WL 4773747 (N.Dist.Ala. 2015)

My colleague, Professor Tony Sebok, drew my attention to an important recent decision, Looney v. Moore, 2015 WL 4773747 (N.Dist.Ala. 2015, by Chief United States District Judge Karon O. Bowdre). This decision adjudicated a textbook lost-chance case that involved the effects of oxygen saturation levels (SpO2) in premature infants with extremely low birth weights (ELBW). For any such infant, high SpO2 levels involved (among other complications) the risk of blindness caused by retinopathy of prematurity (ROP). On the other hand, low levels of SpO2 could lead to life-threatening neurodevelopmental impairments (NDI). The neonatologists’ customary practice was to maintain SpO2 levels in ELBWs between 85% and 95%. The effects of variations within that nationally accepted range were hitherto unknown.

To find out what those effects are, the defendants conducted a clinical trial. They divided the nationally accepted range of SpO2 levels into a high range (90%- 95%) and a low range (85%-90%). Infants whose parents agreed to participate in that trial—all having an extremely low birth weight—were randomly placed in either of the two groups. By making that division, the defendants tracked the infants’ rates of NDI, on one side, and ROP, on the other side.

The infants included two plaintiffs assigned to the low saturation group. After receiving the designated treatment, these plaintiffs developed serious neurological problems (but did not die). The third plaintiff was assigned to the high saturation group. This plaintiff developed ROP (but did not become blind). The plaintiffs claimed that the experimental treatments they received deprived them of a better chance of cure. To support this claim, their expert testified that “Participation in the study resulted in increased risk of the adverse effects of too much or too little oxygen administration—it was predictable that some infants would experience increased risk of ROP and blindness, while others would experience increased risk of death. The study’s results with increased mortality (in the low saturation group) and increased ROP (in the high saturation group) should have been anticipated before the first infant was enrolled.”

Judge Bowdre granted the defendants’ motion for summary judgment. She reasoned that the plaintiffs’ evidence could only establish an increased risk of future harm. As she properly observed, this cause of action was not recognized by Alabama law that controlled the case (see Hinton v. Monstanto Co., 813 So.2d 827, 829–30 (Ala. 2001) (holding that suits complaining about “nothing more than an increased risk that an injury or an illness might one day occur” are doomed to fail)). Moreover, according to Judge Bowdre, allowing the plaintiffs to move forward with that suit would violate Article III standing requirement. Future harm, she explained, does not give a plaintiff standing. Plaintiffs can only file a suit for damages they actually incurred.

As far as standing is concerned, Judge Bowdre’s decision was accurate in the context of Alabama law. As a general matter, Article III provides no independent constitutional grounds for dismissing suits filed in connection with future harms. As I explained in my work with Ariel Porat, a person’s prospect of becoming seriously ill in the future detracts from her present wellbeing. When a wrongdoing forces a person to live under an increased risk of becoming seriously ill, that person therefore deserves tort remedies. See Ariel Porat & Alex Stein, Liability for Future Harms, in Perspectives on Causation 221 (Richard S. Goldberg, ed., 2011). Hence, when applicable state law (e.g., Minnesota law: see Dickhoff v. Green, 836 N.W.2d 321 (Minn. 2013)) recognizes an increased prospect of future illness as actionable, the plaintiff will have the requisite Article III standing. For my analysis of the Dickhoff decision, see here.

Judge Bowdre’s decision that the plaintiffs had no recognized cause of action under Alabama law was correct as well. This decision proceeded on the assumption that the testimony of the plaintiffs’ expert, if found trustworthy following trial, could establish the defendants’ negligence (which it hardly could, given that the defendants’ treatment of the plaintiffs stayed within the conventional range of SpO2 levels).

Things, however, could have been markedly different (assuming, once again, that the defendants did commit malpractice) if the plaintiffs attempted to recover compensation for impairments they were likely to develop in the future as a result of their already-existing afflictions. Under this theory of the case, if the court were to find the defendants responsible for the plaintiffs’ existing illnesses—which, again, was a very big IF—it could not ignore the plaintiffs’ future impairments. The court would have to account for those impairments in determining the compensation amount that the defendants must pay the plaintiffs. See my analysis of the landmark Dickoff case, here and here.

Under the “lost chance” doctrine, on the other hand, the plaintiffs’ case was doomed even if Alabama law allowed plaintiffs to recover compensation for lost chances. Compensation for lost chances is determined by the difference between the plaintiff’s prospects of cure before and after the defendant’s malpractice. In the case at bar, this difference equaled zero. The plaintiffs’ parents allowed the plaintiffs to join the study when each plaintiff was facing a choice between two prospects of severe impairment: NDI and ROP. These prospects were—roughly—equally bad and equally inevitable (reportedly, the plaintiffs’ evidence did not differentiate between these two prospects). The plaintiffs’ parents had to tell doctors, on behalf of their infant children, whether they wanted to decrease the risk of NDI by increasing the risk of ROP, or vice versa. They had no other option. Consequently, there was no way to increase the plaintiffs’ prospect of cure.

Professor Michelle Meyer has a different assessment of Looney v. Moore, eloquently presented here and here.

Actions for Sexual Assault Incidental to Medical Treatment Placed Outside the Scope of Medical Liability

Ex parte Vanderwall, — So.3d — 2015 WL 5725153 (Ala. 2015)

Ex parte Vanderwall, — So.3d — 2015 WL 5725153 (Ala. 2015), is a new important decision that defined “medical malpractice” to identify suits adjudicated under special defendant-friendly rules. As I explained hereherehereherehereherehere, and in a foundational article on the subject, categorizing a suit as sounding in “medical malpractice”—as opposed to “ordinary negligence,” “assault” or “battery”—determines whether the plaintiff must satisfy rigid limitations and repose provisions, comply with special requirements with regard to expert testimony, face the difficult burden of proving the defendant’s deviation from professional customs, and, in the end, suffice herself with the compensation amount limited by the statutory cap on damages.

In Vanderwall, this categorization determined whether a patient could use past instances of sexual misconduct incidental to medical treatment to prove that the therapist responsible for that misconduct sexually assaulted her as well. Such evidence is generally admissible as modus operandi (under Federal Rule of Evidence 404(b)(2) and its state equivalents) or for any other relevant purpose (under Federal Rule of Evidence 415 and its state equivalents).

Alabama law, however, has made an exception to this general admissibility rule. This exception protects defendants in medical malpractice actions by making their prior professional misconduct inadmissible and not discoverable. Specifically, it prohibits “conducting discovery with regard to any other act or omission or from introducing at trial evidence of any other act or omission” that constitutes medical malpractice. The Alabama Medical Liability Act, Ala. Code 1975 § 6–5–551.

There is a potential clash between this evidentiary privilege and the Healthcare Quality Improvement Act of 1986 (HCQIA). The HCQIA requires that any payment made pursuant to a verdict or a settlement in a medical malpractice case be reported to the National Practitioner Data Bank. 42 U.S.C.A. § 11131. The HCQIA also provides that “With respect to a medical malpractice action, a hospital which does not request information respecting a physician or practitioner … is presumed to have knowledge of any information reported under this subchapter to the Secretary with respect to the physician or practitioner.” 42 U.S.C.A. § 11135(b). This constructive notice is of paramount importance. When a hospital fails to obtain negative information about a physician to whom it grants attending privileges, it exposes itself to liability for negligent credentialing: see here. The Alabama privilege may obstruct the implementation of the federal constructive notice, and when it does so it will be overridden by federal law. Pierce County v. Guillen, 537 U.S. 129, 146-47 (2003); Brown v. Western Ry. Co. of Ala., 338 U.S. 294, 296 (1949) (holding in relation to state procedures that a “federal right cannot be defeated by the forms of local practice”).

In the case at bar, the plaintiff made no negligent-credentialing allegations against the clinic that employed the therapist. Instead, she sued the therapist for wrongdoings incident to her treatment, which she properly described as sexual assault. The patient then sought discovery of the information pertaining to the therapist’s sexual misconduct with other patients. In response, the therapist invoked the evidentiary privilege pursuant to the Alabama Medical Liability Act.

The Alabama Supreme Court held that the therapist was not protected by the privilege. The privilege, it explained, only applies in actions for “medical malpractice,” which do not include suits that seek remedies for sexual assault on a patient. This ruling overturned the Court’s prior precedent that gave an exceedingly broad interpretation to what constitutes an action for “medical malpractice.” The Court noted in that connection that “Stare decisis is a golden rule, not an iron rule.”

One should be careful not to interpret this new decision as allowing plaintiffs to avoid the application of restrictive medical-malpractice rules by casting their complaints against providers of medical care into the language of “ordinary negligence” or “assault.” Alabama law does not allow it: see Husby v. S. Ala. Nursing Home, Inc., 712 So. 2d 750, 751–54 (Ala. 1998) (applying medical malpractice rules to a suit involving a nursing home resident who fell out of bed, fractured her femur and died shortly after femoral surgery). The Vanderwall precedent will only apply to patients who sue medical care providers for sexual misconduct. As such, it constitutes a welcome development that takes doctrine in the right direction.

Nevada’s $350,000 Cap on Noneconomic Damages Held Constitutional and Applicable Per Incident

Tam v. Eighth Jud. Dist. Ct., — P.3d — , 2015 WL 5771245 (Nev. 2015)

Bad news for Nevada’s victims of medical malpractice. This state’s Supreme Court upheld the constitutionality of the $350,000 cap on noneconomic damages as limiting recovery for all kinds of victims and injuries. Moreover, the Court held that the cap applies per incident, which encompasses all mistakes that the doctor may have made in delivering a single treatment to a patient and all the victims of those mistakes (such as twins born with birth defects as a result of negligent prenatal care or delivery). For my discussion of the “per incident” and alternative approaches to caps, see here.

The Court’s rejection of the constitutional challenge to the cap is particularly noteworthy. The challengers argued, quite sensibly, that the cap was unconstitutional because it violated victims’ right to a trial by jury. According to the Court, “the cap does not interfere with the jury’s factual findings because it takes effect only after the jury has made its assessment of damages, and thus, it does not implicate a plaintiffs right to a jury trial.” That is, when a Nevada jury assesses the victim’s noneconomic damage at, say, $1,000,000, reducing this amount to $350,000 would not violate the victim’s right to a jury trial because the court here nullifies the jurors’ verdict ex post without telling them how to decide the case.

I don’t think much commentary is needed here. The Court’s interpretation of the right to a jury trial is analogous to a decision that interprets the Takings Clause as allowing the government to seize private property upon paying the owner “just compensation” reduced by a special 65% tax.

The Court also dismissed the plaintiffs’ equal protection challenge by categorizing medical malpractice victims’ entitlement to recover damages as “[not] a fundamental constitutional right.” This debatable categorization enabled the Court to upheld the cap’s constitutionality by applying the famous mechanism of “minimal scrutiny in theory and virtually none in fact” (Gerald Gunther, Foreword: In Search of Evolving Doctrine On A Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972)).

Nevada’s Supreme Court drew its inspiration from the California Supreme Court decisions, as it does in many cases. Perhaps on this occasion, it could have done better if it considered an excellent constitutional analysis carried out by the Florida Supreme Court in McCall v. United States, 134 So.3d 894 (Fla. 2014). For my discussion of this medical-malpractice decision of the year for 2014, see here.

Tolling Statutes of Limitations for Medical Malpractice Suits: The “Death Certificate” Approach

Lyas v. Forrest General Hosp., — So.3d —, 2015 WL 6532412 (Miss. 2015)

The plaintiff’s husband died at a hospital from a heart attack induced by a drug overdose. The local coroner promptly informed the plaintiff that her husband died from a heart attack without mentioning the overdose. A few days later, a provisional autopsy report listed the cause and manner of the death as “pending toxicology.” Based on that report, the coroner issued a provisional Certificate of Death that listed the immediate cause of the death as “pending.” Two years later, after receiving the toxicology report, the coroner issued the final Certificate of Death. This certificate attested that the death of the plaintiff’s husband resulted from changes consistent with a drug overdose.

Mississippi’s Supreme Court ruled that the plaintiff was entitled to have a jury determination on whether she could toll the state’s one-year statute of limitations. The Court reasoned that, under the circumstances of the case, a reasonable factfinder could decide that it was justifiable for the plaintiff to wait for the final death certificate instead of initiating an independent inquiry into her husband’s death.