Issue # 3:5, May 2015

Medical Malpractice and the Middle-Ground Fallacy: Should Victims’ Families Recover Compensation for Emotional Harm?

Squeo v. Norwalk Hosp. Ass’n, 316 Conn. 558, — A.3d — (Conn. 2015)

Medical malpractice victims are generally entitled to recover compensation for emotional harm they endure: see, e.g., Alexander v. Scheid, 726 N.E.2d 272, 283–84 (Ind. 2000). But what about a victim’s close family member? Take a person who suffers emotional distress from witnessing a medical mistreatment and the consequent injury or demise of her loved one. Should the court obligate the negligent physician or hospital to compensate that person for her emotional harm?

This question has no uniform answer under our medical malpractice laws. Some states allow victims’ families to recover compensation for their emotional harm, while others do not. Three weeks ago, the Connecticut Supreme Court struck a middle ground between these two extremes. Squeo v. Norwalk Hosp. Ass’n, 316 Conn. 558, — A.3d —- (Conn. 2015).

The facts of that case were tragic. The plaintiffs’ suicidal son underwent an emergency psychiatric examination and was released from hospital prematurely to hang himself from a tree in his parents’ front yard. As a result, the plaintiffs sustained severe emotional distress, for which they sought to recover compensation from the defendants. The defendants moved to dismiss this claim summarily, contending that Connecticut law does not recognize bystander emotional distress as actionable in medical malpractice cases. Specifically, they argued that the Connecticut Supreme Court’s precedential ruling in Clohessy v. Bachelor, 675 A.2d 852 (Conn. 1996)—which entitles, “under certain limited circumstances … a bystander to an accident [to] bring a claim for negligent infliction of emotional distress against the person whose negligence caused that accident, separate and apart from any claims that the primary victim of the accident might have”—does not apply in medical malpractice cases.

The trial judge granted the defendants’ motion and dismissed the suit. The plaintiffs appealed. Pursuant to the special procedure under Con. Gen. Stat. § 51–199(c) and Practice Book § 65–1, their appeal was transferred to the Connecticut Supreme Court, bypassing the appellate court. The Connecticut Supreme Court affirmed the trial judge’s decision.

The Court framed the issue at bar as a contest between the well-known concerns that counsel against affording a remedy for bystanders’ emotional harms (“the potential for trivial, frivolous or fraudulent claims, … the difficulties involved in tracing the etiology of psychological harms [and the] fears that, if anyone who witnesses a serious accident or injury is permitted to bring his or her own independent claim, courts will be flooded with these derivative claims, and defendants will be subject to liability that is disproportionate to their fault”) and the recognition of emotional traumas as serious, verifiable, and deserving of compensation (for a recent analysis of this contest, see Dov Fox & Alex Stein, Dualism and Doctrine, 90 Indiana Law Journal (forthcoming in 2015), available at

Based on that framing of the issue, the Court formulated its goal as finding “the best way to afford a remedy for a bystander’s genuine emotional distress while placing reasonable limits on the scope of such liability.”

The Court’s effort at finding this way included survey of the “bystander distress” rules that apply in other jurisdictions. Based on this comparative survey, the Court decided that a bystander will recover compensation for emotional harm arising from medical malpractice when:

(1)   The defendant’s medical mistake constitutes gross negligence;

(2)   The primary victim of that mistake is the bystander’s loved one (a spouse or close family member);

(3)   The primary victim dies or sustains serious physical injury;

(4)   The bystander’s emotional harm is “both severe and debilitating, such that [it] warrant[s] a psychiatric diagnosis or otherwise substantially impair[s] the bystander’s ability to cope with life’s daily routines and demands.”

(5)   The bystander suffers that harm “as a direct result of contemporaneously observing gross professional negligence such that the bystander is aware, at the time, not only that the defendant’s conduct is improper but also that it will likely result in the death of or serious injury to the primary victim.”

After formulating this rule, the Court went on to examine the plaintiff’s evidence to find out that it meets all prerequisites for recovery except that of “severe and debilitating” emotional harm. This finding doomed the plaintiffs’ suit.

The Court explained that:

“We need not speculate, however, as to what shock and distress the plaintiffs may have experienced upon witnessing Stephen’s hanging. Even if we assume that their experience was deeply disturbing, and we have no reason to doubt that it was, that alone is not sufficient to satisfy the legal standard that we have articulated today. Just as few persons travel through life alone, … few of us complete the journey without ever suffering the loss of a parent, child, sibling or partner. The DSM–5, in defining a mental disorder, emphasizes that an “expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder.” (citing American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 20 (5th ed., 2013)).

The new rule makes it extremely difficult for families of medical malpractice victims to obtain compensation for their emotional harm. Proving “gross negligence” of a hospital or medical professional is difficult in and of itself. Establishing the presence of “severe and debilitating” emotional harm that exceeds an “expectable or culturally approved response to a common stressor or loss” is even harder. Demonstrating that this harm directly resulted from “observing gross professional negligence” is well nigh impossible. In the Court’s own words, its new rule makes viable only “the remote specter of bystander emotional distress claims.”

This rule strikes me as deeply problematic. As an initial matter, it is utterly inconsequential for the vast majority of medical-malpractice victims’ families, whose emotional distress is real, severe and verifiable, but is also “expectable” or “culturally approved.” This denial of redress runs afoul of the compensation principle of the law of torts and is also discriminatory. The rule also does not improve medical professionals’ incentive to avoid malpractice (this incentive is determined, as before, by the professionals’ liability for the primary victim’s injury or death, on top of reputational penalties). Worse yet, the new rule incentivizes doctors and hospitals to separate patients from their families at the early stages of the treatment. For example, contrary to the Court’s speculation, hospitals will now do well to banish expectant fathers from the delivery room. From a hospital’s perspective, implementing this policy in order to remove a remote, but still real, threat of liability would be rational because it costs the hospital nothing.

The Court’s new rule constitutes a textbook example of the “middle-ground fallacy”: an idea that making a decision situated between two extremes is always better than preferring one of those extremes to another. The question with which I began my discussion has only two potentially good answers: YES or NO.

“Medical Malpractice” vs. General Negligence: The Case of Falling Accidents

Ross v. St. Luke’s Episcopal Hospital, — S.W.3d — (Tex. 2015), 2015 WL 2009744

As I wrote previously – see here, here, here, here, here, here, here, here, and here – whether a tort action sounds in “medical malpractice” as opposed to general negligence, or vice versa, can be crucial. Suits sounding in “medical malpractice” must satisfy special requirements that include shortened limitations periods, statutes of repose, and expert affidavits (or certificates of merit). In many states, those suits are also subject to special damage caps. Suits sounding in general negligence are free from these constraints. Filing and prosecuting those suits is consequently not as onerous and expensive as filing and prosecuting medical malpractice actions. For that reason, we witness many disputes over this pivotal categorization issue.

Most of those disputes are about falling accidents: see, e.g., Churchill v. Columbus Community Hosp., 830 N.W.2d 53 (Neb. 2013) (suit in connection with patient’s falling on wet floor while descending the steps of clinic’s aboveground pool categorized as sounding in medical malpractice rather than premises liability); Stanley v. Lebetkin, 123 A.D.2d 854 (N.Y. 1986) (suit by a plaintiff who fractured ankle while getting off doctor’s examining table categorized as sounding in medical malpractice rather than regular negligence); Harris Methodist Fort Worth v. Ollie, 342 S.W.3d 525 (Tex. 2011) (suit by hospital patient who slipped on wet floor while getting out of bathtub categorized as “health care liability” claim); Rome v. Flower Memorial Hosp., 635 N.E.2d 1239 (Ohio 1994) (suits by a patient who fell off an x-ray table and by a plaintiff who sustained injuries after a component of his wheelchair collapsed while he was being transported from the physical therapy department categorized as sounding in medical malpractice); Husby v. S. Ala. Nursing Home, Inc., 712 So. 2d 750, 751–54 (Ala. 1998) (suit involving nursing home resident who fell out of bed, fractured her femur and died shortly after femoral surgery categorized as sounding in medical malpractice); Chandler v. Opensided MRI of Atlanta 682 S.E.2d 165 (Ga. App. 2009) (instructing lower court to determine whether a suit by a patient who sustained injury from falling on the floor from an MRI table sounds in medical malpractice).

This issue has recently been revisited by the Texas Supreme Court in Ross v. St. Luke’s Episcopal Hospital, — S.W.3d —- (Tex. 2015), 2015 WL 2009744, a case that involved a hospital visitor who slipped and fell near the lobby exit doors and sued the hospital on a premises liability theory. The hospital argued that this suit was a “health care liability claim” under the Texas Medical Liability Act (TMLA), which required the plaintiff to submit to court an expert report. Because the plaintiff submitted no such report, the hospital asked the trial court to dismiss the suit. The hospital’s categorization of the suit as a “health care liability claim” rested on Texas West Oaks Hospital, L.P. v. Williams, 371 S.W.3d 171 (Tex. 2012)—a holding that “when a safety standards-based claim is made against a health care provider, the Texas Medical Liability Act … does not require the safety standards to be directly related to the provision of health care in order for the claim to be a health care liability claim.” Based on that decision, the trial court granted the motion to dismiss and the court of appeals affirmed.

The Supreme Court of Texas accepted the hospital’s argument. After observing that “the purpose of the TMLA’s expert report requirement is not to have claims dismissed regardless of their merits, but rather it is to identify and deter frivolous claims while not unduly restricting a claimant’s rights” (citing Scoresby v. Santillan, 346 S.W.3d 546, 554 (Tex. 2011)), the Court ruled that it “fail[s] to see how the Legislature could have intended the requirement of an expert report to apply under circumstances where the conduct of which a plaintiff complains is wholly and conclusively inconsistent with, and thus separable from, the rendition of “medical care, or health care, or safety or professional or administrative services directly related to health care” even though the conduct occurred in a health care context.” “A safety standards-based claim”—it explained “does not come within the TMLA’s provisions just because the underlying occurrence took place in a health care facility, the claim is against a health care provider, or both.”

According to the Court, whether a suit sounds in healthcare liability, as opposed to regular negligence, or vice versa, depends on the nature of the risk associated with the plaintiff’s allegations of damage. When that risk originates from the defendant’s provision of medical care, the suit sounds in healthcare liability. When the risk originates from an ancillary activity identical to those carried out for purposes other than medical care, the suit sounds in regular negligence. To facilitate the requisite categorization, the Court singled out “certain non-exclusive considerations,” namely,

  1. Did the alleged negligence of the defendant occur in the course of the defendant’s performing tasks with the purpose of protecting patients from harm;
  1. Did the injuries occur in a place where patients might be during the time they were receiving care, so that the obligation of the provider to protect persons who require special, medical care was implicated;
  1. At the time of the injury was the claimant in the process of seeking or receiving health care;
  1. At the time of the injury was the claimant providing or assisting in providing health care;
  1. Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
  1. If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
  1. Did the alleged negligence occur in the course of the defendant’s taking action or failing to take action necessary to comply with safety-related requirements set for health care providers by governmental or accrediting agencies?

The Court ruled that, in the case at bar, the answer to each of these questions is No, which indicates that the plaintiff properly filed a regular negligence suit.

The Court’s risk analysis strikes me as superior to the general multifactor test, summarized and applied in Chandler v. Opensided MRI of Atlanta 682 S.E.2d 165 (Ga. App. 2009).

The “Due Process Exception” to the Statute of Repose

Cahn v. Berryman, — P.3d — (N.M.App. 2015), 2015 WL 1955019

New Mexico’s 3-year repose period for medical malpractice suits was held constitutional in principle, but it may still be pronounced unconstitutional “as applied” when it leaves an aggrieved patient and her family too short a window for filing suit.

In Garcia v. La Farge, 893 P.2d 428, 438 (N.M. 1995), the New Mexico Supreme Court held that “a statute of repose that allows an unreasonably short period of time within which to bring an accrued cause of action violates the Due Process Clause of the New Mexico Constitution” and that due process is violated when the plaintiff has only eighty five days for filing suit when he first learns that he has a medical malpractice claim against the physician.

In Cummings v. X–Ray Associates of New Mexico, 918 P.2d 1321, 1336-37 (N.M. 1996), the Court ruled that eighteen months was not too short a period of time for filing suit.

In the case at bar, the Court of Appeals decided that it is not unconstitutional for an aggrieved patient to be afforded 10.5 months for filing her suit, given the social need to have a termination point for medical malpractice claims.

Repose, Foreign Object, and Constitution

Ambers-Phillips v. SSM DePaul Health Center, — S.W.3d — (Mo. 2015), 2015 WL 1926012

In 2003, a patient discovered that a surgeon left four foreign objects in her abdomen back in 1999. The patient’s suit against the surgeon was extinguished by Missouri’s 10-year repose provision for medical malpractice suits. This provision is strict and cannot be tolled on because “To toll [it] disregards this basic purpose of statutes of repose—that of providing a final time limit beyond which suit is foreclosed.”

The Missouri Supreme Court, by a 6:1 majority, found no unconstitutionality in this result despite the fact that “it was practically impossible for [the patient] to discover that foreign objects had been left in her body until well after a 10–year period of repose.”

The Peer Review Privilege: No Exception for Objective Facts

Krusac v. Covenant Medical Center, Inc., — N.W.2d — (Mich. 2015), 2015 WL 1809371

This recent decision of the Michigan Supreme Court foiled an attempt at establishing an “objective fact” exception to the peer review privilege. An elderly hospital patient allegedly rolled off the operating table, fell on the floor, and died shortly thereafter. As part of the hospital’s peer review procedure, one of the nurses compiled an incident report and submitted it to her superiors. The plaintiff in the ensuing wrongful death action subpoenaed that report. The trial judge ruled that the plaintiff was entitled to see the report’s first page that summarized the facts of the incident. The hospital appealed all the way to Michigan’s Supreme Court to vindicate its rights under the state’s peer review privilege, MCL 333.20175(8) & MCL 333.21515, that extends to “records, data, and knowledge collected for or by individuals or committees assigned a professional review function in a health facility or agency, or an institution of higher education in this state that has colleges of osteopathic and human medicine.” These information items are “confidential, … are not public records, and are not subject to court subpoena.”

Based on this broad formulation of the privilege, the Court ruled that “the peer review statutes do not contain an exception for objective facts contained in an otherwise privileged incident report” and reversed the trial court’s decision.

This ruling was unquestionably correct and it also stands on firm policy grounds. As an initial matter, the plaintiff could subpoena the nurse as a witness and question her about the incident. The peer review privilege does not bar such direct questioning, as opposed to plaintiffs’ intrusion into a confidential internal communication between the hospital and its personnel. Furthermore, the plaintiff could summon all the information from the deceased patient’s file, which, according to prevalent rules of practice, was supposed to cover the fall incident as well. Absence of such information triggers spoliation inferences against the hospital. Along with penalties for perjury, these rules virtually guarantee patients’ access to relevant information. Creating an “objective fact” exception to the peer review privilege would therefore unnecessarily discourage candid peer review.