ISSUE 3:2, February 2015 – RECENT DEVELOPMENTS

Doctor’s Help to an Ill Juror Causes a Mistrial

Jack v. Booth, — N.W.2d — (Iowa 2015), 2015 WL 292051

Judge Learned Hand knew what he was talking about when he wrote that he dreaded litigation more than sickness and taxes. But even he could not envision the following case:

A juror faints in the middle of a medical malpractice trial against two physicians. One of the physicians rushes to assist the juror, who quickly recovers and gets excused from the case. The trial court interviews the remaining jurors regarding the impact of this incident and denies the plaintiffs’ motion for mistrial. After trial, the jury exonerates both physicians, and the trial court allows this verdict to stand. The court of appeals, however, reverses the verdict and orders a new trial as to both physicians.

Was it a right decision?

The Iowa Supreme Court, to which the physician who did not help the ill juror petitioned for further review, decided that it was not. The Court ruled that the trial court did not abuse its discretion when it allowed the jury verdict to stand as to the physician who had not rendered medical assistance. The Court did not believe that “one physician defendant’s actions engendered a sense of undue goodwill and respect in the jury toward the medical profession generally” nor was it willing to consider such a possibility “a sufficient basis for overturning the district court’s on-the-scene exercise of discretion.” Based on these holdings, the Court reinstated the jury’s verdict for the physician who rendered no medical assistance to the stricken juror.

Remarkably, this case was not unique. Four court decisions have previously dealt with the question whether a new medical-malpractice trial should be ordered when a physician defendant treats a juror during trial: Campbell v. Fox, 498 N.E.2d 1145, 1147 (Ill. 1986); Haukedahl v. St. Luke’s Hosp., No. L–92–011, 1993 WL 496681, at *1, *3 (Ohio Ct.App. Dec. 3, 1993); Heidt v. Argani, 214 P.3d 1255, 1259 (Mont. 2009); Reome v. Cortland Memorial Hospital, 543 N.Y.S.2d 552, 553–54 (N.Y.App.Div.1989). The Iowa Supreme Court decided that the case at bar was “distinguishable from the foregoing malpractice cases [because they] involved a single injury and claims for that injury against both the doctor who treated the plaintiff and the facility where the treatment took place” whereas in the case at bar “[t]he jury was asked to and did determine each defendant’s negligence separately without any weighing of comparative fault.”

The Timeline Approach to Medical Malpractice Defenses

Harb v. City of Bakersfield, — Cal.Rptr.3d — (Cal.App. 5th Dist. 2015) 2015 WL 302291

In this very recent case, California’s Court of Appeal has delivered a first-impression decision on the conditions under which a patient’s own negligence can be asserted as a defense against medical malpractice allegations. Among the materials cited by this decision was my article, Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201 (2012). The court used my “timeline approach” to separate the patient’s pre-treatment negligence, upon which providers of substandard medical care cannot rely, from self-injurious behaviors that occur during and after treatment and that can properly mitigate – and in extreme cases, even eliminate – the legal consequences of medical malpractice.

The court adjudicated a series of negligence complaints that came from a doctor who suffered a hemorrhagic stroke while driving home in his car after completing a 12–hour shift at his hospital’s neonatal intensive care unit. The stricken doctor lost control over the car and drove it onto a sidewalk. Police officers and an ambulance crew that arrived at the scene mistook him for a drunk driver for no good reason. His emergency treatment consequently was delayed at a critical time. When the doctor was finally brought to the same hospital in which he worked, he suffered from a massive bleed in the brain and his physicians could not lessen the brain damage and consequent disabilities.

In the ensuing action against the municipality that employed the police and the ambulance crew, the police’s negligence and the paramedics malpractice were beyond dispute. The defendants’ principal defense was comparative negligence: they proved that, prior to the accident, the doctor systematically failed to treat his high blood pressure by medications and essentially “gambled with his own life.” Based on that defense, the jury returned a special verdict for the defendants, and the plaintiffs appealed.

The appellate court vacated this verdict and ordered a new trial. After consulting the laws of other states and relevant academic literature, it decided to adopt the “timeline approach” (see Stein, id. 1223-24). This approach does not permit negligent providers of medical care to reduce their liability for the resulting harm by alluding to the patient’s pre-treatment negligence. At the same time, defendants are free to rely on the causal consequences of that negligence in arguing about the patient’s chances to recover upon her admission to treatment. For example, by proving that those chances equaled zero, the defendant would be able to establish that the patient was incurable. This proof would causally disassociate the defendant’s malpractice from the patient’s injury. In short, doctors and other providers of medical care must take their patient as they find her and assume undiminished responsibility for failing to deliver proper treatment.

Organ Transplant Malpractice and the “Proximate Cause”

Shierts v. University of Minnesota Physicians, — N.W.2d — (Minn.App.2014), 2014 WL 7344014

This important – yet, unreported – decision deals with a medical-malpractice action arising out of the patient’s death from cancer contracted from a donated pancreas. The trial court dismissed the action summarily based on the “proximate cause” doctrine, and the plaintiff appealed against that dismissal.

The patient’s physician did not know that the person who donated the pancreas died from cancer. Based on the information received from another hospital, she thought that the donor died from bacterial meningitis and carried out the transplant surgery. Subsequent autopsy revealed that the cause of the donor’s death was not bacterial or viral meningitis, but T-cell lymphoma, a rare form of cancer. The patient’s physician was promptly notified about it, but it was too late. The donated pancreas was determined to contain cancer cells. The cancer was also determined to be widespread in the patient’s body. Three days later, the patient died from that cancer.

The patient’s sister sued the physician for medical malpractice and the ensuing wrongful death, but the trial court dismissed that suit summarily. The court reasoned that the donor’s T-cell lymphoma was unforeseeable because that condition was extremely rare. However, foreseeability depends on the indications of the general risk and not on the risk’s specifics. The plaintiff’s expert testified that the physician breached the applicable protocol by accepting the donor’s pancreas despite indications that the donor had bacterial meningitis or some other illness that would make his pancreas unsuitable for transplantation. Based on that testimony, the court of appeals properly decided that the suit should have gone to trial rather than dismissed.

The appellate decision cited a catchy, but misleading adage, “negligence is tested by foresight but proximate cause is determined by hindsight.” Dellwo v. Pearson, 107 N.W.2d 859, 862 (Minn. 1961). This proposition properly describes the cause-in-fact requirement, which the present suit obviously met, but not the proximate cause doctrine. Under the proximate cause doctrine, the victim’s damage must be foreseeable ex ante as a possible consequence of the tortfeasor’s negligence. Put differently, the victim’s damage must fall within the scope of the general risk created by the tortfeasor’s negligence. The reasons that make the tortfeasor negligent must include the damage that the victim ultimately suffered. Extending the foreseeability requirement to the specifics of the actual damaging event would distort our system of tort liability: see Ariel Porat, Misalignments in Tort Law, 121 Yale L.J. 82, 108-14 (2011).

In the present case, the physician was negligent because she ignored the indications of unknown illnesses that made the pancreas unsuitable for transplantation. This neglect tracks the subsequent complications from which the patient died. For that reason, the plaintiff had a viable malpractice suit against the physician.

Do Medical-Malpractice Time Bars Apply to Hospitals’ Indemnification Suits Against Doctors?

Columbia/CSA-HS Greater Columbia Healthcare System, LP v…., — S.E.2d — (2015), 2015 WL 249536 (S.C. 2015)

The South Carolina Supreme Court has recently decided that a hospital’s indemnification suit against doctors whose malpractice made it pay compensation to the aggrieved patient is subject to the same time bars as patients’ actions against defaulting physicians. Chief Justice Jean Hoefer Toal wrote a vehement dissent in which she was joined by Justice Kaye Hearn. In that dissent, she wrote that “The majority’s holding represents a fundamental misunderstanding of the nature of indemnification actions which I fear will have far-reaching effects on the ability to seek indemnification.”

The Chief Justice is absolutely right.

Facts underlying this important decision included the following:

The Providence Hospital of Columbus, SC, settled a viable malpractice action filed in connection with its physicians’ failure to detect an ongoing heart attack back in 1997. This settlement was made on June 10, 2004. On June 7, 2007, the Hospital filed an indemnification suit against the physicians (who worked at the Hospital as independent contractors). The physicians relied on the state’s statute of repose, S.C. Code Ann. § 15–3–545(A), according to which “[Any action] to recover damages for injury to the person arising out of any medical, surgical, or dental treatment, omission, or operation by any licensed health care provider … acting within the scope of his profession must be commenced within three years from the date of the treatment, omission, or operation giving rise to the cause of action or three years from date of discovery or when it reasonably ought to have been discovered, not to exceed six years from date of occurrence, or as tolled by this section.” Specifically, the physicians claimed that, since their alleged malpractice took place in 1997, they became immune against any suit in connection with that event as of 2003.

The South Carolina Supreme Court agreed with the physicians, but that was a wrong decision. The conceptual basis of indemnification rights is the law of unjust enrichment. To the extent the hospital paid the aggrieved patient any amount of money on the physicians’ behalf as tortfeasors, they are obligated to reimburse it for that payment. This is what the law of unjust enrichment says. The hospital’s indemnification suit therefore was not an “action … to recover damages for injury to the person arising out of any medical, surgical, or dental treatment, omission, or operation.” Rather, it was an action for remedying the physicians’ failure to abide by their independent legal duty to reimburse the hospital. The physicians’ malpractice was one of the reasons for them having that duty, but reasons are one thing and a cause of action is a completely different thing. Statutes of repose extinguish causes of action, not reasons.

The Hospital’s cause of action – indemnification pursuant to the law of unjust enrichment – consequently did not accrue before the physicians’ refusal to reimburse it for the compensatory payment it made on their behalf. This refusal took place after June 10, 2004, the day on which the hospital made a settlement with the aggrieved patient and his wife. If so, the Hospital had a three year window for filing its indemnification suit against the physicians, as prescribed in S.C. Code Ann. § 15-3-530(1) for actions “upon a contract, obligation, or liability, express or implied.” Indeed, under S.C. Code Ann. § 15–3–20, “Civil actions may only be commenced within the periods prescribed in this title after the cause of action has accrued” (emphasis added). The Hospital therefore properly filed its suit on June 7, 2007. Alas, the South Carolina Supreme Court saw it differently.

What should hospitals do in light of this precedent? First, they will do well to implead doctors as third parties whenever possible. Second and equally important, hospitals should write into their agreements with doctors an indemnification obligation from which a doctor would only be released if he proves that he committed no malpractice against the patient who sued the hospital. This indemnification clause would completely remove medical malpractice from the hospital’s cause of action against the doctor.