Issue # 3:6, June 2015

Of Competence and Referrals: When a Doctor’s Failure to Refer a Patient to another Physician Constitutes Malpractice?

St. John v. Peterson, — N.W.2d — (S.D. 2015), 2015 WL 3505401

Four days ago, the Supreme Court of South Dakota delivered an important decision on when a physician’s failure to refer a patient to another doctor constitutes malpractice. St. John v. Peterson, — N.W.2d —- (S.D. 2015), 2015 WL 3505401. This decision hides in the Court’s rulings on the admissibility of evidence, and so it’s important to give it the publicity it deserves.

The Court decided—correctly, in my opinion—that a physician has a duty to refer her patient to another doctor when she is not competent to carry out the procedure the patient needs or when the referral is part of the customary practices and protocols followed by her peers. The availability of other, more experienced, better skilled and better performing doctors is not a good reason in and of itself for imposing a referral obligation on the physician.

The Court had very good reasons for making that decision. In South Dakota and everywhere else in the United States, a physician commits malpractice only when she fails to conform with her specialty’s customary practices and protocols. By the same token, conformity with those practices and protocols guarantees the physician full immunity against liability. When those practices and protocols do not require referral, the physician’s failure to refer the patient to another doctor—who can deliver a better treatment—does not constitute malpractice. Critically, this rule also applies when a cost-benefit analysis of the patient’s situation calls for such a referral. Doctors’ internal customs override any external cost-benefit analysis.

As I explain in my work on the foundations of our medical malpractice system, this override reflects the system’s need to base doctors’ liability on well-articulated rules and protocols, as opposed to a broad “negligence” standard. Our system prefers rules to standards to allow the compliant physicians to do their job without fearing suits for malpractice. Courts and legislators cannot properly formulate and periodically update medical rules and protocols. For that reason, our system delegates the rulemaking power to the medical profession and requires qualified expert witnesses to testify about applicable rules. A plaintiff’s failure to call a qualified expert to identify the applicable rule and the defendant’s deviation therefrom dooms his suit: see, e.g., here and here. Moreover, many states require plaintiffs to submit an affidavit or merit certificate from a qualified expert upon filing a suit. Failure to comply with this requirement results in the suit’s summary dismissal: see here, here, and here.

In the case at bar, the plaintiff argued that the defendant inadequately repaired her vesicovaginal fistula (a postoperative complication of some gynecological procedures that causes very uncomfortable and uncontrollable discharges of urine, as well as emotional problems). She argued that the defendant’s performance was below the specialist level. The plaintiff’s principal complaint targeted the defendant’s failure, as a non-specialist, to refer her to another physician who specializes in repairing vesicovaginal fistulas. To prove that this failure constituted medical malpractice, the plaintiff offered evidence of how the defendant treated other patients suffering from fistulas. The plaintiff also called an expert witness to testify that “the [defendant’s] conduct fell below the standard of care when she failed to inform [the plaintiff] that repairing fistulas was not her specialty.” The trial judge ruled that this evidence was irrelevant and hence inadmissible. After trial, he instructed the jury that “A physician has the duty to refer a patient to a specialist or recommend the assistance of a specialist if, under the circumstances, a reasonably careful and skillful physician would do so.” The jury decided the case in the defendant’s favor. The plaintiff appealed against that verdict and her appeal reached the Supreme Court.

The Supreme Court affirmed the trial judge’s evidentiary rulings and the jury’s verdict. It held that evidence of how the defendant treated other patients could only be relevant if it showed professional incompetence, but the evidence failed to make that showing. The defendant’s lack of success in treating other patients did not even make a prima facie showing that she treated the plaintiff contrary to the customary practice. As for the plaintiff’s expert, the Court observed that he failed to provide “any opinion … on whether, under these circumstances, a reasonably careful and skillful physician would have referred [the plaintiff] or recommended that she see a specialist, as is required to establish negligence in failing to refer to a specialist” (the expert’s testimony only supported the plaintiff’s complaint about the defendant’s violation of her informed-consent rights, which was summarily dismissed on separate grounds). Based on this observation, the Court decided that the plaintiff’s malpractice allegations were unfounded.

Military Medical Malpractice in Baby Delivery and Prenatal Care

Ortiz v. United States, ex rel. Evans Army Community Hosp., — F.3d — (10th Cir. 2015), 2015 WL 2330230

When Congress enacted the Federal Tort Claims Act (FTCA) in 1946, it did not envisage that its formulation of the federal government’s liability will allow members of the military forces to sue the United States for service-related noncombatant injuries. The Supreme Court closed this gap in Feres v. United States, 340 U.S. 135 (1950). It held that FTCA did not waive the government’s immunity from tort liability for members of the military and supported that interpretation by a number of reasons. First and most important, FTCA made the government liable in torts according to state laws that do not – and are not authorized to – govern the distinctly federal relationship between the government and its armed forces. Second, Congress has established a uniform compensation scheme for injured and fallen soldiers (the Veterans Benefit Act, 38 U.S.C. §§ 301, et seq.). Four years later, in United States v. Brown, 348 U.S. 110 (1954), the Court rationalized Feres as protecting military discipline as well.

Based on these rationales, the Court subsequently decided that Feres also protects the government against suits for derivative harms sustained by civilians. Specifically, it held that when a military person’s “injury incident to service” is the “genesis” of the civilian plaintiff’s harm, the civilian cannot sue the government. Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977).

These decisions did not envision the present-day inflow of women into the military and that pregnant servicewomen will be receiving obstetric care at military facilities. For these women and their newborns, the implications of Feres in the event of medical malpractice are unclear. Arguably, when a servicewoman receives substandard care that injures her fetus, the resulting injury will not be categorized as “incident to service.” If so, the government will be denied the Feres immunity and will face liability according to FTCA. This argument, however, might not succeed when the fetus’s injury originates from medical malpractice that impacted the woman’s body. Under such circumstances, the woman’s “injury incident to service” might qualify as a “genesis” of the fetus’s injury. Based on this categorization, the government might obtain full immunity against the newborn baby’s suit. Because virtually all fetal-injury cases are open to these two lines of argument, federal courts are yet to develop a uniform approach to those cases.

The most recent – and, by my lights, most impressive – attempt in that direction was made by the Tenth Circuit in Ortiz v. United States, ex rel. Evans Army Community Hosp., — F.3d —- (10th Cir. 2015), 2015 WL 2330230. This case involved Captain Heather Ortiz, an active-duty servicemember in the United States Air Force, who was admitted to a military hospital to deliver her baby by a Caesarean section. After being administered Zantac and Benadryl in preparation for the surgery, Captain Ortiz experienced a steep drop in her blood pressure and hypotension. As a result, her baby was deprived of oxygen in utero and was born with severe brain damage. The hospital’s staff was clearly responsible for the complications in Captain Ortiz’s preoperative procedure.

The Circuit’s decision, written by Judge Timothy M. Tymkovich, offers a thorough and precise analysis of the Feres doctrine and its implications for in-utero cases. According to Judge Tymkovich, in-utero cases can easily be decided by applying the injury-focused “genesis” test set up in Stencel Aero. Under this test, when the mother suffers no injuries (as in cases of undiagnosed birth defects) or when her and her baby’s injuries are separate and not coextensive, the government will receive no immunity and the baby’s suit will be allowed to proceed under FTCA. On the other hand, when the baby’s injury (oxygen deprivation and the resulting brain damage, in the case at bar) is coextensive with the mother’s injury (hypotension and the consequent lack of oxygen in her uterus), the Feres immunity takes hold and bars the baby’s suit.

The plaintiff’s suit therefore fails, however unjust it may be. As Judge Tymkovich put it, “We wish, frankly, that were not the case. But in faithfully applying Supreme Court authority, Tenth Circuit precedent, and the persuasive decisions from other circuits, the incident-to-service and genesis standards require such an outcome.”

On his way to this conclusion, Judge Tymkovich has rejected the treatment-focused approach followed by other courts. This approach focuses on the designated beneficiary of the negligent medical treatment. If that treatment was directed at the mother, the Feres immunity will bar the suit. On the other hand, if the negligent treatment aimed to benefit the fetus, the resulting injury would not fall into the “incident to service” category and the civilian baby would be allowed to sue the government.

Judge Tymkovich rejected this approach for four reasons. First, the “genesis” test, as formulated by the Supreme Court in Stencel Aero, is about the connection between the military member’s and the civilian’s injuries: when the first injury is coextensive with the second, the Feres immunity will apply. Second, obstetric treatments often benefit both the mother and the fetus. Third, “a common scenario might involve treatment aimed solely to benefit the fetus, but which results in an injury to the mother. If the baby suffers an obviously derivative injury as a result of the accidental injury to the mother, then Feres should bar the claim regardless of the fact that the treatment was originally intended to benefit only the baby. By the same token, we can envision a scenario where treatment was provided solely for the mother’s benefit, but negligence in providing such treatment injured the baby alone. In those cases, Feres would not operate as a bar because the injury could not be derivative of the non-existent injury to the mother.”

Fourth, the treatment-focused approach requires courts to consider the merits of the plaintiff’s suit, which is antithetical to the jurisdictional role of the Feres doctrine. As Judge Tymkovich explains,

“The Feres doctrine has always operated as an antecedent jurisdictional hurdle — that is, it activates an inquiry into our ability to even consider the merits of the tort alleged against the government. The injury-focused approach appreciates this prefatory concern, deferring any substantial merits discussion related to the actions of the government vis-a-vis the third party. In order to reach those questions, we must proceed past the Feres bar and to do so, we consider the relationship between the third-party injury and the service member’s injury as a threshold matter.”

Judge David M. Ebel wrote an important concurrence that rejects both the injury-focused and the treatment-focused approaches while proposing to adopt “a new, third approach that tethers the military’s Feres-immunity to the military’s conduct toward its servicemembers.” Under Judge Ebel’s conduct-focused approach, the Feres immunity should extend to any provision of medical care to a servicemember by the military, which includes the military’s provision of obstetric care to an active-duty servicemember mother. Courts therefore should “consider whether the civilian child’s in utero injuries flowed directly from the military’s immunized conduct toward its pregnant servicemember. If they do, then Feres bars the claim.” In the case at bar, the “civilian child’s damages action for in utero injuries would not exist but for the military’s provision of obstetric care to the servicemember mother.” For that reason, the child’s action should be barred pursuant to Feres.

This approach strikes me as too broad. If adopted, it would resolve – not necessarily in a good way – the controversy over whether the government should assume liability for contagious illnesses that a servicemember passes to a civilian. Consider a servicemember who contracts HIV after being treated in a military medical facility with an HIV-contaminated needle and subsequently passes the virus to his civilian wife. Under Judge Ebel’s conduct-focused approach (and under the treatment-focused approach as well), the wife’s suit will be barred. Under the injury-focused approach, however, the wife would be able to sue the government because her injury is separate from and not coextensive with her husband’s.

For that reason, I tend to agree with Judge Tymkovich (but not with his characterization of the in-utero cases as “simple”). For the long run, of course, Congress will do well to establish a special fund for compensating victims of military medical malpractice. At the very least, Congress should set up an administrative program for compensating servicewomen’s children for birth-related injuries (akin to the programs that exist in Florida and Virginia: see Fla. Stat. § 766.302 and Va. Code Ann. § 38.2-5002).

Proving Decision-Causation

White v. Beeks, — S.W.3d — 2015 WL 2375458 (Tenn. 2015)

Proving decision-causation in a suit for informed-consent violation is never easy. Things get even worse when a trial judge misinterprets the criteria for determining – counterfactually – whether the patient would have agreed to the chosen treatment if she were to receive full information about its benefits, risks, and alternatives. The recent Tennessee Supreme Court decision, White v. Beeks, — S.W.3d —- 2015 WL 2375458 (Tenn. 2015), is a case in point.

A patient with severe back pain underwent a lower back surgery. To stabilize the patient’s spine, his surgeon fused discs and joints by using the bone-grafting product InFuse: a human-engineered bone morphogenic protein, designed to stimulate bone growth and promote fusion. The patient’s condition initially had improved, but his pain came back. Subsequent tests revealed that he developed an abnormal bone growth and inflammations at the site of the surgery.

The patient sued the surgeon for informed consent violation and the case went to trial. The patient called an expert witness to testify that the surgeon should have informed him about the following risks associated with InFuse: abnormal bone growth, inflammations, cystic lesions, radiculitis, and fluid collection. The trial court, however, ruled that the expert could only testify about the materialized risks – abnormal bone growth and painful inflammatory reactions – about which the patient received enough information. The court reasoned that the remaining three risks were not relevant because neither of them materialized in the case at bar. Expectedly, the jury returned a verdict in the surgeon’s favor.

The trial court’s ruling was a product of a common – and yet, fairly basic – misunderstanding of decision-causation. Assume, for simplicity, that the five risks that the surgeon had to inform the patient about were mutually independent and that each of them materialized in 20% of the cases, causing damage in the amount of 1000. Under these assumptions, the patient’s expected harm equaled 20%×1000×5=1000. Hence, the patient would agree to undergo an InFuse procedure only when his expected benefit exceeds 1000.

Assume now that the surgeon informed the patient about two risks instead of five, as attested by the patient’s expert. This misinformation made the patient believe – mistakenly – that his expected harm from the InFuse treatment was 400 rather than 1000. If so, then the patient may have agreed to undergo the InFuse treatment because he estimated that it would yield him a benefit of 500. Had the patient known that his expected harm equals 1000, he would have chosen to decline the treatment. For that simple reason, the trial court should have admitted the testimony of the patient’s expert.

Luckily, the Tennessee Supreme Court fixed this fundamental mistake. The Court ruled that a patient needs to be informed of all “perils bearing significance” in order to give informed consent (citing Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 122 (Tenn. 1999)) and that “perils bearing significance” necessarily include all perils: those that materialized and those that did not. In the Court’s words, “The fact that a risk did not materialize it does not make it less of a risk. At the time a patient is making a decision whether to undergo a medical procedure, he needs to know prospectively the risks he is facing — not just those risks that in hindsight materialized and caused him harm. The fact that a risk did not materialize during or after surgery is not a determining factor in whether it should have been disclosed to a patient before surgery.” The Court remanded the case for a new trial on the issue of informed consent consistent with its holding.

Tolling the Limitations Period for Minors

Ho-Rath v. Rhode Island Hosp., — A.3d — (R.I. 2015), 2015 WL 2381215

This recent decision of the Rhode Island Supreme Court interpreted the tolling provision of state’s statute of limitations with respect to minors’ entitlement to file medical-malpractice suits, Gen. Laws, § 9-1-14.1(1). This provision affords two options regarding those suits. First, “an action may be commenced on behalf of the minor’s interest by next of friend within three years of the injury or reasonable discovery of the injury.” Alternatively, “the injured minor may commence an action on his or her own behalf within three years after reaching the [age of] majority.” The Court ruled that these two options are independent of each other and therefore also expire independently. After the expiration of the parent’s or guardian’s power to file a suit on the minor’s behalf, “the minor may file suit on his or her own behalf, but not until he or she reaches the age of majority [eighteen years]. Upon reaching the age of majority, he or she has three years within which to file the action.” The Court reasoned that “The initial three-year statute of limitations in § 9–1–14.1(1) encourages the minor’s parent or guardian to file suit promptly upon the occurrence or reasonable discovery of alleged malpractice; this restraint serves the purpose of providing a fair but appropriately limited opportunity for the litigation of the minor’s claims. If the parent or guardian fails to file suit on the minor’s behalf, however, the three-year window opens upon the age of majority; this ensures that the minor is not permanently prejudiced by his or her parent or guardian’s failure to timely assert his or her rights.”

The Court also decided that the minor’s parents can use either of these two windows for filing a derivative lost-consortium action against the defendant.

Evidentiary Requirements for Medical Malpractice Experts in Suits under FTCA

Dutton v. United States, — Fed.Appx. —, 2015 WL 3719689 (11th Cir. 2015)

This decision provides a both concise and accurate formulation of the choice of law regarding the eligibility requirements for experts testifying in medical malpractice actions under the Federal Tort Claims Act (FTCA).

The court started off by observing that in diversity suits, the admissibility of expert testimony on issues of medical malpractice is governed by state rules because they “are so intimately intertwined with its medical malpractice laws that it would create an Erie conflict not to apply the state evidentiary rules in federal court” (citing McDowell v. Brown, 392 F.3d 1283, 1295 (11th Cir. 2004)).

The court subsequently reasoned that –

“This, of course, is an FTCA case, not a supplemental-jurisdiction case, so the Erie doctrine does not apply. However, in FTCA cases, “the extent of the United States’ liability … is generally determined by reference to state law.” Molzof v. United States, 502 U.S. 301, 305 (1992). And Federal Rule of Evidence 601 instructs that in civil cases, “state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.” Thus, although not controlling, we believe that our decision in McDowell is persuasive here. Georgia’s evidentiary rules for a physician’s expert testimony are so intimately intertwined with its malpractice laws that the rules must apply in an FTCA case for medical malpractice. That understanding accords with the holding of at least one sister Circuit. See Liebsack v. United States, 731 F.3d 850, 855–56 (9th Cir. 2013).”

For my analysis of the Liebsack decision, see here.