Issue # 3:3, March 2015

The Scope of Virginia’s Birth–Related Neurological Injury Compensation Program

Women’s Healthcare Associates, Inc. v. Mucci, — S.E.2d — (Va.App. 2015)

Virginia’s Birth–Related Neurological Injury Compensation Act of 1987 (BRNICA) affords aggrieved patients a no-fault compensation remedy for qualified injuries while giving potential tort defendants – doctors and hospitals who choose to participate in the Birth–Related Neurological Injury Compensation Fund – an absolute immunity from malpractice liability. Va. Code Ann. § 38.2-5002. For a parallel Florida statute, see Fla. Stat. § 766.302. Participation in this program is optional for both patients and care providers. The program compensates injured children for disability damages not covered by the government, health benefit plans, and private insurance. Pain, suffering, and other noneconomic damages are noncompensable (in Florida, they are capped at a low amount). By electing to receive treatment from a participating provider, the patient commits herself and her future child to pursue any compensation claim for birth-related neurological injury before a special administrative tribunal and automatically waives the right to bring a medical malpractice lawsuit against the participating physician or hospital. Wolfe v. Va. Birth–Related Neurological Injury Comp. Program, 580 S.E.2d 467, 476 (Va. 2003).

Because injury claims adjudicated by the tribunal do not depend upon medical malpractice, the tribunal’s decisions need not be reported to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act of 1986. This Act, 42 U.S.C. § 11131, only requires reporting of payments “under a policy of insurance, self-insurance, or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim.”

The scope of BRNICA’s coverage is consequently of paramount importance for patients, doctors, and hospitals. Virginia’s appellate court’s decision in Women’s Healthcare Associates, Inc. v. Mucci clarifies this scope.

This decision distinguished between a newborn’s neurological injuries from labor complications and injuries suffered by his mother that included damaged uterus, physical pain and related emotional distress. The court held that the BRNICA program covers only the newborn’s injuries. The mother’s injuries, it explained, are “separate and distinct” and therefore fall outside the program’s scope.

In making this precedential decision, the court relied on Va. Code Ann. § 38.2–5002(B). According to this provision, the program’s scope “shall not be construed to exclude other rights and remedies available to the infant’s mother arising out of or related to a physical injury, separate and distinct from an injury to the infant that is suffered by the infant’s mother during the course of the infant’s delivery.” This provision allows mothers to file medical-malpractice actions for any personal injury not originating from the injury to the child. In Mucci, the mother’s injuries squarely fell into the “separate and distinct” category because they “did not occur “but for” the birth-related neurological injury to her son,” but “could have also occurred with the delivery of an otherwise healthy child.”

The mother was consequently free to sue her doctors for medical malpractice, but she would not be able to include in her suit any claim for emotional damages resulting from her son’s injury. Any such derivative claim will be barred by BRNICA because it is included in the patient’s waiver.

This decision was unquestionably correct, but it still leaves one serious problem unresolved. The mother’s emotional harm was a combined product of her child’s neurological condition and her own injuries. With these injuries being a substantial factor responsible for her indivisible emotional harm, the mother can now sue her doctors for the full amount of that harm notwithstanding her prior waiver under BRNICA. Courts adjudicating such malpractice suits would now have to alter the common law doctrine of causation in a way that accounts for the plaintiff’s BRNICA waiver. As part of that reform, they would need to develop a method of valuating the child-related – and hence noncompensable – fraction of the mother’s emotional harm. Developing this method and having jurors implement it properly would be extremely difficult.

Doctors Conducting Peer Review Can Recover Compensatory and Punitive Damages for Confidentiality Violations

Yedidag v. Roswell Clinic Corp., — P.3d — (N.M. 2015), 2015 WL 691333

The Supreme Court of New Mexico has recently delivered an important decision protecting peer reviewers’ statutory entitlement to confidentiality. Yedidag v. Roswell Clinic Corp., — P.3d —- (N.M. 2015), 2015 WL 691333. The Court ruled that peer reviewers can sue violators of their confidentiality right and recover compensatory and even punitive damages. This ruling applied the common law criteria for identifying statutory violations as a breach of contract. Based on those criteria, the Court categorized peer reviewers as members of the class protected by the peer review statute, who deserve remedies for violations of their confidentiality right. The Court also estimated that the criminal penalty imposed by the statute on the right’s violators was too lenient to discourage violations. The Court projected that allowing peer reviewers to sue violators will compensate for the resulting shortfall in deterrence. As a conceptual matter, the Court decided that peer reviewers’ confidentiality entitlement is a “mandatory rule of law incorporated into physician-reviewer employment contracts.”

This decision was followed by a ruling against the hospital that terminated the employment of a doctor for “verbally attacking” a colleague at a peer review meeting. The alleged “verbal attack” included tough questions that addressed the colleague’s removal of one malignant tumor from a deceased patient’s colon, instead of two. The hospital perceived these questions as “unprofessional conduct” that justified the doctor’s termination, but the Court profoundly disagreed. The Court decided that the doctor’s questions – even if uncivilized – were privileged, and that it was not within the hospital’s rights to use them (or any other confidential peer review information) as a reason for firing him. Based on that decision, the Court affirmed the jury’s verdict obligating the hospital to pay the doctor compensatory and punitive damages. The Court’s decision relied on several academic works that included Katharine Van Tassel’s important study of the peer review mechanism.

Identifying “Injury Notice”

 Chapman v. Murray, 2015 WL 510444 (Ky.App. 2015)

This unpublished opinion of the Court of Appeals of Kentucky illustrates the right way of identifying the “injury notice” that marks the beginning of the limitations period for medical malpractice suits.

The plaintiff underwent two surgical procedures for removing neuromas from his left foot and developed inexplicably unceasing pain. He thought that he had a foreign object inside his foot, but his doctor diagnosed him with a possible infection and prescribed antibiotics. The antibiotics did not ease the plaintiff’s pain and he sought a second opinion. The plaintiff’s new doctor found foreign material in his foot and surgically removed it. This procedure improved the plaintiff’s condition, but his foot remained permanently damaged.

Under Kentucky law, medical malpractice suits must be filed within one year from the time the plaintiff knew or should have known that the defendant caused her injury. In the case at bar, the plaintiff filed his complaint on January 30, 2013, on the theory that his cause of action accrued on January 31, 2012, when the second doctor discovered the foreign material in his foot. He argued that prior to January 31, 2012, he merely suspected – but did not know – that he had foreign material in his foot. For that reason, he allowed the defendant to work on his pain problem in the hopes that she will fix it.

The court agreed with the plaintiff and the proffered distinction between “suspicion” and “knowledge.” This decision relied on the precedent laid down by the Kentucky Supreme Court in Wiseman v. Alliant Hospitals, Inc., 37 S.W.3d 709, 713 (Ky. 2000) (“[The plaintiff’s] cause of action did not accrue until the fact of her injury became objectively ascertainable. A legally recognizable injury does not exist until the plaintiff discovers the defendant’s wrongful conduct. Because [the plaintiff’s] injury was not readily apparent until the discovery of the piece of uterine probe, she was unaware that she had a viable claim for medical malpractice. A mere suspicion of injury due to medically unexplainable pain following an invasive surgery does not equate to discovery of medical negligence.”).

The court also quoted Harrison v. Valentini, 184 S.W.3d 521, 525 (Ky. 2005), for the proposition that “we should not construe the statute of limitations in a way that would create pressure on plaintiffs to file lawsuits hastily so as to potentially undermine the patient-doctor relationship.” This rationalization aligns with the “continuous treatment” exception to the statute of limitations. See Nobles v. Memorial Hosp. of Laramie County, 2013 WL 2303241 (Wyo. 2013); Cefaratti v. Aranow, — A.3d — (Conn.App. 2014); and my analysis of these cases here and here.

Bottom line: courts should interpret statutes of limitations not only as a mechanism that prevents the filing on stale lawsuits, but also in a way that does not encourage plaintiffs to sue prematurely.

“Error in Judgment” and Informed Consent

Fergen v. Sestero, — P.3d — (Wash. 2015), 2015 WL 1086516

When conventional standards of practice allow a physician to choose between two or more ways to treat or diagnose a patient, she is free to select any of those ways. The fact that her chosen procedure subsequently proves inferior to the alternatives and works badly for the patient is of no consequence: the physician would not be liable for malpractice because malpractice accusations only attach to actions and not to consequences. Whether a physician did or did not deliver substandard treatment to the patient must be determined prospectively (ex ante) rather than by hindsight (ex post). Because a medically approved procedure that proves inferior to another recommended procedure appears negligent, jurors must receive an effective warning against this misleading appearance.

How to best administer this warning is a matter of split among state courts. In some states, courts give jurors the traditional “error in judgment” instruction which explains the difference between errors ex ante that constitute malpractice and errors ex post that do not. See, e.g., Nestorowich v. Ricotta, 767 N.E.2d 125, 126-30 (N.Y. 2002) (holding that “error in judgment” instruction is part of New York medical malpractice law and clarifying that it only applies to doctors’ choices and not to mechanical errors in procedures).

Other states have abandoned this instruction for being misleading in that it suggests that a doctor who treats her patient in good faith can never commit malpractice. In these states, courts simply ask jurors to evaluate the doctor’s performance prospectively (by whether her chosen procedure was medically recommended) rather than retrospectively. See, e.g., Pringle v. Rapaport, 980 A.2d 159 (Pa. Super. 2009). Finally, another group of states have taken an in-between position, persuasively explained by the South Dakota Supreme Court in Papke v. Harbert, 738 N.W.2d 510 (S.D. 2007). There, courts give jurors the “error in judgment” instruction only under special circumstances that call for that instruction to avoid hindsight bias.

The Washington Supreme Court decision, Fergen v. Sestero, — P.3d — (Wash. 2015), 2015 WL 1086516, delivered last week, is a case in point. This consolidated case involved the following sets of facts:

Case #1

A physician found a small lump on the patient’s ankle. The lump was causing the patient slight discomfort, but otherwise appeared benign. The physician followed the protocols. He ordered an X ray to make sure there were no structural defects in the ankle area, referred the patient to an orthopedic specialist, and instructed him to follow up with his office as necessary.

Approximately 13 months later, the patient was diagnosed with Ewing’s sarcoma, a rare and aggressive form of metastatic cancer that originated in the lump on his ankle. This cancer could not be stopped and the patient died. Arguably, if the physician were to immediately prescribe ultrasound and biopsy—the medically recommended procedures to rule out cancer—the patient would have had a good chance to survive.

Case #2

A patient was treated by hospital doctors for a lower leg injury from a soccer game. He complained about persistent and worsening pain and increasing firmness in his injured leg. The doctors followed their clinical guidelines that did not include measuring the pressure in the leg to rule out compartment syndrome. Ultimately, the patient was diagnosed with that syndrome which resulted in permanent foot drop injury.

The Court ruled that each of these cases called for the “error in judgment” instruction (known in Washington as “exercise of judgment”) and dismissed the patients’ appeals against unfavorable verdicts. This ruling was based on Washington’s in-between approach and it triggered a dissent that called for the instruction’s abolition. The dissent argued that the instruction is “confusing, unfair, and inconsistent with the modern practice of giving [jurors] only basic, neutral instructions.

I believe that the in-between approach makes a lot of sense, but my goal here is not to argue in its favor. Rather, my goal here is to draw the reader’s attention to the hitherto unexplored connection between “error in judgment” and the rules of informed consent. The Court was right to affirm the “error in judgment” instruction that exonerated the physicians in both cases. However, these physicians also had a duty to tell the patients about the availability of more comprehensive diagnostic alternatives which they chose not to pursue. Both physicians seem to have breached that duty, but the patients did not sue them for that breach (the Court’s decision doesn’t indicate that they did). This suit, unlike that for diagnostic negligence, strikes me as very promising.