ISSUE 3:8, August 2015 – RECENT DEVELOPMENTS

Malpractice at the Front Desk

Wong v. Chappell, 773 S.E.2d 496 (Ga.App. 2015)

Georgia’s Court of Appeals recently categorized a clinic’s front-desk person’s failure to communicate a patient’s complaints to the doctors as ordinary negligence rather than medical malpractice. Wong v. Chappell, 773 S.E.2d 496 (Ga.App. 2015).

This categorization has four important implications:

First, it allows an aggrieved patient to file her suit and proceed to trial without obtaining expert testimony and a preliminary affidavit (or certificate of merit) from a qualified physician.

Second, it frees plaintiffs from the stringent limitations and repose rules that apply in medical malpractice actions.

Third, it exempts an aggrieved patient’s suit from statutory caps for medical-malpractice damages, thereby allowing the patient to recover full jury-assessed compensation for her injuries.

Fourth and equally important, it entitles the plaintiff to a broad jury instruction that speaks about ordinary negligence, as opposed to an extremely narrow definition of “medical malpractice” (see Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1209-10 (2012)).

In the case at bar, an unlicensed medical assistant employed by the defendants’ clinic had a phone conversation with a patient after answering her call. During that conversation, the patient told the assistant that “she was experiencing pain radiating from her flank and back, bleeding, and changes in her bowel movement.” The assistant estimated that the patient was having a urinary tract infection and inquired about the typical symptoms. Remarkably, the assistant “did not talk to any doctor, nurse practitioner, or physician’s assistant about the back and flank pain or the bleeding because she did not think [that the patient’s] complaints were sufficiently serious.” The patient consequently was denied the medical attention she needed and developed a life-threatening complication, from which she died.

The Court of Appeals ruled that the plaintiff’s complaint sounded in ordinary negligence, rather than medical malpractice, and that the jurors that decided the case should have been instructed accordingly.

Importantly, the Court also decided that the plaintiff could sue the clinic and the assistant for statutory violation. By acting as she did, the assistant violated Georgia’s statute (OCGA § 43–34–22) that prohibits the practice of medicine without a license. The Court held in this connection that the statute’s violation amounted to negligence per se.

This decision is unquestionably correct. Special rules that protect physicians and other healthcare providers against unmeritorious suits (characterized as “narrow entries” into medical malpractice liability: see Stein, id., at 1208-16) should not benefit administrative front-desk personnel and unlicensed assistants. Moreover, clinics, hospitals and doctors need to have a strong incentive to train their administrative stuff properly and prevent communication failures that compromise patients’ treatment.

Utah’s Cap on Medical Malpractice Damages Held
Unconstitutional in Suits for Wrongful Death

Smith v. U.S., — P.3d — (Utah 2015), 2015 WL 4742499

As I previously wrote here and here, some state constitutions protect plaintiffs’ right to file a tort action at common law against legislative curtailment.

Article XVI, section 5 of the Utah Constitution gives plaintiffs a similar, albeit more narrow, protection:

“The right of action to recover damages for injuries resulting in death, shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation, except in cases where compensation for injuries resulting in death is provided for by law.”

Based on that provision, the Utah Supreme Court voided the state’s $450,000 damage cap on noneconomic damages recoverable by victims of medical malpractice, is Utah Code Ann. § 78B–3–410. The cap’s defenders tried to convince the Court, unsuccessfully, that it falls into the exceptional category of “compensation for injuries resulting in death is provided for by law.” The Court decided that “compensation” mentioned in Art. XVI, s. 5 proviso does not include “damages for injuries.” The Court explained that “The word damage defines the constitutional protection; the word compensation defines the scope of the exception. Accordingly, the two terms must mean something different otherwise the exception would swallow the rule. We gain insight into the meaning of the compensation exception by its context. The compensation exception was not part of the original constitution, but was added through an amendment made in 1921. The exception remedied the inconsistency between the unamended constitutional provision and the Workmen’s Compensation Act of 1917. Thus, as we have previously held, the term compensation, as used in amended section 5, carries the same meaning that it had in the Workmen’s Compensation Act, namely “any payment required by the act to be made to a workman or to his dependents, or for their benefit, or into the state treasury for the special purposes of the compensation act.” (citations omitted)

 

Tolling Provision in South Carolina’s Limitations Statute for Medical Malpractice Suits Given Narrow Interpretation

Sims v. Amisub of South Carolina, Inc., — S.E.2d — (S.C. 2015), 2015 WL 4751030

In this case, the Supreme Court of South Carolina has given a narrow interpretation to the tolling exception to the state’s statute of limitations for medical malpractice suits. This statute, S.C. Code Ann. § 15–3–545(A), provides that minors can toll the three year limitations period till adulthood, but makes no similar arrangement for other disabled plaintiffs. Such an arrangement was made by the state’s general statute of limitations, S.C. Code Ann. § 15–3–40, which gives tolling rights to any person who was “at the time the cause of action accrued either (1) within the age of eighteen years; or (2) insane.”

The plaintiff complained about her doctors’ failure to diagnose pre-eclampsia: a serious complication of pregnancy that left her with severe brain damage. The plaintiff delayed her suit beyond the statutory limit, which she attempted to toll on the grounds of insanity. The South Carolina Supreme Court ruled that the plaintiff could be properly categorized as “insane” in light of her brain damage, but she could not benefit from that categorization because it only helps plaintiffs who attempt to toll the general statute of limitations, as opposed to the limitations period set for medical malpractice suits.

To be entitled to toll this period, a plaintiff must show that she was a minor when her cause of action accrued, whereas in the present case the plaintiff was already 22 years old when she was allegedly mistreated by her doctors. The plaintiff argued that she was as disabled as a minor person, which should make her equally entitled to tolling, but the Court disagreed. The Court reasoned that it “fully understands [the plaintiff’s] equitable argument that fairness dictates that incapacities other than minority should be read into the medical malpractice statute of limitations.” However, the Court decided that “the fairness of such decisions remains within the prerogative of the legislature and not the [C]ourt.”

 

The Scope of Doctors’ Duty to Inform Patients

Hagen v. Strobel, — P.3d — (Alaska 2015), 2015 WL 4167381

A cardiologist performed pacemaker surgery on a patient and ordered an x-ray to check for complications. A radiologist who reviewed the x-ray noted a potential “nodule” in the patient’s lung and recommended follow-up x-rays. This recommendation was never followed. Nor was it relayed to the patient, who turned out to have an undiagnosed lung cancer from which he died within two years.

The patient’s estate suited the cardiologist and his associate, but failed to call a board-certified cardiologist as a witness to establish that the defendants were obligated to relay the “nodule” information to the patient. The Superior Court held that this failure was fatal to the suit and granted the defendant summary judgment. The Alaska Supreme Court affirmed that judgment. Whether a cardiologist should inform her patient about medical facts unrelated to the procedure she took charge of—it held—is a question for medical experts. Only board-certified cardiologists can tell whether their specialty includes the practice of paying attention to and informing patients about incidentally discovered pathologies.

The Denial of the Peer Review Privilege to HMOs

Venosh v. Henzes, — A.3d — (Pa. 2015) 2015 WL 4712604

This recent decision of the Pennsylvania Supreme Court has narrowed the scope of the state’s peer review privilege that protects against disclosure “proceedings and records of … any committee engaging in peer review.” Pennsylvania statute defines “peer review” as “a procedure for evaluation by professional health care providers” of the quality and efficiency of services ordered or performed by other “professional health care providers.” 63 P.S. §§ 425.2 & 425.4.

The Court decided that HMOs (unlike hospitals) are not “professional healthcare providers” because they do not deliver medical services. As a result, HMOs (such as Blue Cross Blue Shield) must disclose peer reviews of the affiliated doctors’ performance.

The Court also mentioned that “a review committee is operating as such only when its goal is “to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care.” 63 P.S. § 425.2 This goal, according to the Court, wasn’t present in the case at bar because “Herein, Blue Cross was deciding whether to keep [the reviewed physicians] as contracting health care service providers. None of the above stated purposes was present in its quality-of-care review.”

This decision is open to criticism. First, I question the Court’s distinction between the direct provision of medical care and a care’s provision through financing. HMOs implement financing models to provide medical care to people who otherwise could not afford it. This role turns HMOs into professional healthcare providers. HMOs also work to secure the quality of medical care for their plan members. An HMO’s decision to expel a physician from its network therefore may well be directed towards “improving the quality of health care rendered.” Finally, the Court’s decision not to grant the peer review privilege to HMOs committees is bound to distort those committees’ work. Physicians participating in those committees will now be less inclined to provide candid assessments of other doctors’ performance.