Issue # 4:1, January 2016

Medical Malpractice: Can Negligent Providers of Medical Care Defend Themselves by the Patient’s Comparative Negligence?

P.W. v. Children’s Hospital Colorado, — P.3d — (Colo. 2016), 2016 WL 297287

This new decision of the Colorado Supreme Court provides a clear restatement of the principle that denies a tort defendant the comparative negligence and assumption of risk defenses that purport to shift to the victim the duty to eliminate or reduce the risk that the defendant was obligated to guard against. This principle has important implications for medical malpractice law, and the case at bar unfolds one of them.

In that case, the defendant hospital admitted a known suicidal patient to its secure mental health unit and placed him under high suicide-risk precautions. The hospital’s staff failed to follow those precautions by allowing the patient to be alone in a bathroom for twenty minutes. During these twenty minutes, the patient hanged himself with his scrub pants and suffered a devastating anoxic brain injury.

In the ensuing malpractice suit, filed by the patient’s father, the trial court granted the plaintiff’s motion for summary judgment and dismissed the hospital’s comparative negligence and assumption of risk defenses. The hospital’s appeals brought the case to the Colorado Supreme Court that ruled for the plaintiff. The Court decided that neither of the two defenses was available to the hospital because the hospital had a duty to protect the patient against his own suicide.

In the Court’s words,

“If the defendant’s duty to protect the plaintiff contemplates, encompasses, and thereby subsumes the plaintiff’s duty not to act in a certain way, then the plaintiff cannot be faulted for acting in that way. …. When a hospital admits a person into its custody who the hospital knows is actively suicidal, and when the admission is for the purpose of preventing that person’s self-destructive behavior, the hospital assumes a duty to use reasonable care in preventing the patient from engaging in such behavior. …. [T]his duty subsumes any fault attributable to the plaintiff for harm suffered as a result of those self-destructive acts.”

This was a first-impression decision that set a precedent for Colorado law. In making this decision, the Court relied on precedents from other states that included an important medical-malpractice decision of the Minnesota Supreme Court, Tomfohr v. Mayo Foundation, 450 N.W.2d 121 (Minn. 1990).

The “overlapping duty” test, followed by this and many other courts across the United States, is not always easy to apply. Courts applying this test refuse to discount the negligent defendant’s liability by the victim’s comparative negligence upon finding that the defendant’s duty to the victim included an obligation to prevent the specific self-destructive behavior that injured the victim. It is, however, the plaintiff’s burden to prove that such overlapping duty existed. Consider a psychiatric patient who doesn’t swallow the antidepressants his doctors give him. Instead, he hides them in his mouth and then throws them away. Under any such scenario, the plaintiff would only be able to negate the defendant’s comparative negligence defense if he shows that the defendant had an obligation to verify the pill’s swallowing by the patient. The defendant’s general duty as a provider of psychiatric care will not always include this specific obligation.

Disciplinary Proceedings Against Experts Testifying in Medical Malpractice Cases

Barrash v. American Ass’n of Neurological Surgeons, Inc., — F.3d — (5th Cir. 2016), 2016 WL 374134

Witnesses have a general immunity against private suits in connection with their testimony (Briscoe v. LaHue, 460 U.S. 325, 345-46 (1983)). Perjury prosecution is their only fear. For expert witnesses testifying about their opinions rather than empirical facts, perjury prosecution is not even a viable prospect. Doctors testifying as experts in malpractice suits filed against their professional peers, however, may face disciplinary proceedings in medical associations to which they affiliate. The consequences of those proceedings for doctors can be quite devastating. They include expulsion and loss of job opportunities. Moreover, a negative finding against a doctor can impeach her as an expert witness in a subsequent court proceeding, which will make lawyers reluctant to retain her as an expert in the first place.

Yet, the only protection that those doctors get from the law is basic due process. All they are entitled to as defendants before their professional disciplinary board is a notice about the complaints or charges and the right to be heard and present evidence. Worse yet, violation of this basic due process right does not entitle the doctor to void the negative disciplinary finding automatically.

The recent Fifth Circuit decision, Barrash v. American Ass’n of Neurological Surgeons, Inc., — F.3d —- (5th Cir. 2016), 2016 WL 374134, is a case in point. This case involved a neurosurgeon and former member of the American Association of Neurological Surgeons (“AANS”) who regularly testified as an expert witness in medical malpractice trials. In one of those trials, he testified against his fellow AANS member. As part of that testimony, he told the court that the defendant neurosurgeon incorrectly placed a bone graft during the plaintiff’s surgery and failed to adequately treat the plaintiff’s post-operative infection. After making a settlement with the aggrieved patient, the defendant filed a complaint against the expert pursuant to the AANS’s internal grievance rules. This complaint alleged that the expert testified “without having reviewed the intraoperative X-rays that clearly demonstrate[d] proper hardware and bone graft placement,” in violation of clause B.2 of the Rules for Neurosurgical Medical/Legal Expert Opinion Services. This clause provided that “The neurosurgical expert witness shall review all pertinent available medical information about a particular patient prior to rendering an opinion about the appropriateness of medical or surgical management of that patient.” After conducting a hearing, the AANS censured the expert “for giving expert testimony without having seen the imaging studies relevant to that testimony, and for failure to provide unbiased testimony during part of a deposition in a civil lawsuit.”

Prior to that proceeding and decision, the expert had received no notice accusing him of giving biased testimony. He sued the AANS in the United States District Court for the Southern District of Texas, alleging (1) tortious interference with prospective business relations (as a physician and an expert witness); (2) breach of contract (the AANS bylaws); and (3) impairment of an important economic interest from denial of due process. The district court vacated the censure punishment relating to the “biased testimony” accusation but left the rest of the censure in place.

This decision was deeply problematic. As the expert properly argued before the Fifth Circuit, “the district court … should have set aside the whole censure, because there is no way to determine whether the censure would have occurred at all absent both bases.”

The Fifth Circuit nonetheless affirmed the district court’s decision. This affirmance rested on the doctrine of judicial non-intervention, well entrenched in Texas law that controlled the case. This doctrine gives voluntary organizations such as AANS a near-complete exemption from judicial scrutiny. Under that doctrine, “a Texas court will conduct judicial review of a voluntary association’s internal operations only when the actions of the organization are illegal, against some public policy, or are arbitrary or capricious.” Dallas Cty. Med. Soc’y v. Ubiñas–Brache, 68 S.W.3d 31, 41 (Tex.App.-Dallas 2001). The policy behind that doctrine was explained in rather colorful terms by the Texas Court of Appeals in El Paso:

“If the courts were to interfere every time some member, or group of members, had a grievance, real or imagined, the non-profit, private organization would be fraught with frustration at every turn and would founder in the waters of impotence and debility.”

Juarez v. Texas Ass’n of Sporting Officials El Paso Chapter, 172 S.W.3d 274, 280 (Tex.App.-El Paso 2005).

The Fifth Circuit’s decision leaves medical expert witnesses unprotected against retaliation and harassment. This decision undercuts the rationale underlying witnesses’ general immunity against private suits relating to their testimony. Under that rationale, “the claims of the individual must yield to the dictates of public policy, which requires that the paths which lead to the ascertainment of truth should be left as free and unobstructed as possible.” Briscoe, 460 U.S. at 332-33 (quoting from Calkins v. Sumner, 13 Wis. 193, 197 (1860)).