Medical Malpractice: The New Wave of Constitutional Attacks on Damage Caps
Dodson v. Ferrara, — S.W.3d — (Mo. 2016) 2016 WL 1620102
About forty-five years ago, tort reforms took off and states have started capping compensation awards for victims of medical malpractice. The plaintiffs bar countered this initiative by raising different constitutional challenges against caps. Those challenges alluded to equal protection, due process, separation of powers, and the general right to a jury trial. Some state courts have rejected those challenges, while other courts have struck the caps down for being unconstitutional. For discussion and the list of representative cases, see Alex Stein, Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1253-54 (2012).
Courts’ decisions in favor and against the caps juxtaposed the victim’s entitlement to remedy against society’s interest in reducing doctors’ compensation burden and cost of liability insurance. Courts that gave precedence to the latter interest did so in the hopes to contain the cost of medical care for patients. The “trickle down” theory underlying these hopes has been questioned on empirical and doctrinal grounds. See Tom Baker, The Medical Malpractice Myth 1-21 (2005) (demonstrating that claims linking the cost of medical care to medical-malpractice liability are empirically unfounded and calling them an “urban legend”) and Stein, id. at 1247-56 (showing that, as a doctrinal matter, doctors can be found responsible for patients’ injuries only in extreme cases and that a rational physician should care more about being identified and reported to the federal databank as a malpractitioner than about how much she will pay if found liable). The Florida Supreme Court has rejected that theory in a recent decision, McCall v. United States, 134 So.3d 894 (Fla. 2014), that relied (inter alia) on Tom Baker’s work. For my discussion of this landmark decision, see here.
For obvious reasons, plaintiffs’ attorneys are loath to depend on such tradeoffs and prefer to base their claims on constitutional rights that are not subject to balancing. Many state constitutions incorporate such entrenched rights, in particular, the right to recover jury-assessed compensation for personal injuries and other tort damages. For example, Article XVI, Section 5 of the Utah Constitution provides that “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 this provision, Utah’s Supreme Court has recently struck down the state’s $450,000 cap on noneconomic damages resulting from medical malpractice that kills the patient. The Court ruled that tort victims’ entitlement under Article XVI, Section 5 is not subject to balancing and that the “statutory compensation” exception to this entitlement refers to statutory compensation schemes akin to workers’ compensation, as opposed to tort actions at common law. Smith v. United States, 356 P.3d 1249 (Utah 2015).
A year before that important decision, the Oregon Supreme Court voided the state’s cap on noneconomic tort damages for violating “every man’s” right to “remedy by due course of law for injury done him in his person, property, or reputation” (Or. Const., Art. I, § 10) and the constitutional guarantee that “In all civil cases the right of Trial by Jury shall remain inviolate” (Or. Const., Art. I, § 17). The Court reasoned that the cap is unconstitutional because it clashes with a person’s entitlement to recover full jury-assessed compensation for injuries recognized as actionable in 1857 when Oregon adopted its constitution. The legislature, it held, has no power to curtail that constitutional entitlement. Klutschkowski v. Oregon Medical Group, 311 P.3d 461 (Or. 2013) (relying on Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001), and Hughes v. PeaceHealth, 178 P.3d 225 (Or. 2008)). For my discussion of these important decisions, see here and here.
A similar challenge has been adjudicated seven weeks ago by the Supreme Court of Missouri in Dodson v. Ferrara, — S.W.3d —- (Mo. 2016), 2016 WL 1620102. This challenge targeted Missouri’s $350,000 cap on noneconomic damages recoverable by medical-malpractice victims (as of August 28, 2015, Missouri caps noneconomic recoveries for medical malpractice at $450,000, while allowing plaintiffs to recover up to $700,000 in cases involving catastrophic injury or death: V.A.M.S. 538.220(2)). The challengers relied on Article I, section 22(a) of the Missouri Constitution under which “the right of a trial by jury as heretofore enjoyed shall remain inviolate.” The Missouri Supreme Court interpreted this provision to preserve the right to a jury trial, as it existed at common law before the state constitution’s first adoption in 1820, “beyond the reach of hostile legislation.” State ex rel. St. Louis, Keokuk & Nw. Ry. Co. v. Withrow, 36 S.W. 43, 48 (Mo. banc 1896). Correspondingly, in 2012, the same Court ruled that the Missouri legislature has no constitutional power to limit the compensation amount recoverable by medical malpractice victims. Watts v. Lester E. Cox Med. Ctr., 376 S.W.3d 633 (Mo. banc 2012). The Court, however, also decided that the noneconomic-damage cap does not violate the right to trial by jury in wrongful death cases because the state’s common law did not recognize wrongful death as actionable in torts before 1820. Sanders v. Ahmed, 364 S.W.3d 195 (Mo. banc 2012).
The case at bar involved a 34-year old patient who died from an ill-performed heart catheterization. The patient’s husband and three children sued the doctor and his employer for malpractice and obtained (inter alia) a jury award of $9,000,000 in noneconomic damages. Pursuant to the state’s statute, as it was then, the trial court reduced this award to $350,000. The plaintiffs challenged this reduction on constitutional grounds and their appeal reached the Missouri Supreme Court. Based on an historical investigation of past decisions, the Court ruled that, prior to 1820, tort victims could successfully sue defendants for personal injuries, but not for wrongful death. “Wrongful death,” it explained, “is a purely statutory cause of action that did not exist at common law” (2016 WL 1620102, at *4 (citing Sanders v. Ahmed, 364 S.W.3d 195, 203 (Mo. banc 2012)). This cause of action also belongs to the victim’s survivors and not to the victim herself (see, e.g., O’Grady, v. Brown, 654 S.W.2d 904, 907 (Mo. banc 1983); American Family Mutual Ins. Co. v. Ward, 774 S.W.2d 135, 136-37 (Mo. banc 1989)).
For these reasons, the Court decided that, although the legislature has no power to cap compensation recoverable at common law for personal injury, it does have the constitutional authority to limit the compensation amounts for statute-based wrongful-death actions.
This ruling partially reinstated the ancient legal regime under which “it was cheaper for the defendant to kill the plaintiff than to injure him, and . . . . the most grievous of all injuries left the bereaved family of the victim, who frequently were destitute, without a remedy.” W. Page Keeton, Prosser & Keeton on Torts § 127 at 945 (5th ed. 1984). Cognizant of this intolerable consequence, the Court ended its decision with the following statement:
“This Court recognizes the inadequacy of $350,000 to compensate the Dodson family for the tragic death of their loved one, particularly in light of the amount awarded by the jury. It is not for this Court to question the policy determinations of the General Assembly, however, and the Court is bound to apply the law as written by the legislative branch.”
As I mentioned above, Missouri’s General Assembly upped the cap to $700,000 but I doubt that this statutory change – effective as of August 28, 2015 – benefited the Dodson family.
The Court’s decision was opposed by two dissenters: Judge Draper and Judge Teitelman. Judge Draper rejected the basic legislative premise underlying the cap. Based on scholarly literature, he properly observed that “A clear, cogent argument exists that [the] medical malpractice “crisis” was manufactured and continues to be exacerbated today by a special interest group that persistently labels, for shock value, and characterizes some jurisdictions as “judicial hellholes.” These characterizations and the underlying “support” for these characterizations have been criticized roundly.” More contentiously, Judge Teitelman wrote that the modem statutory wrongful-death action need not be mirrored in the common law in order to qualify as available prior to 1820. According to him, this action has an old common law analog: a parent’s right to recover compensation for the loss of services that could have been provided to him or her by a son negligently killed by the defendant (citing James v. Christy, 18 Mo. 162 (1853)).
This case illustrates the centrality of historical analysis of tort victims’ rights. I address this issue in a new article on medical malpractice that will soon be available on my website and SSRN.
Continuous Treatment and Repose
Pitt-Hart v. Sanford USD Medical Center, — N.W.2d — (S.D. 2016), 2016 WL 1459018
This very recent decision of the South Dakota Supreme Court explains that continuous treatment does not entitle the patient to toll the statute of repose (as opposed to the statute of limitations that continuous treatment generally does toll). This decision also clarifies that continuous negligence allows the aggrieved patient to count the repose period from any chosen act of medical malpractice, but then, of course, s/he must prove that her damage – or a substantial part thereof – results from that act.
The decision begins with clarifying the fundamental difference between the state’s limitations and repose provisions:
“There can be little doubt that Peterson [Peterson v. Burns, 635 N.W.2d 556 (S.D. 2001)] correctly held that SDCL 15–2–14.1 is properly considered a statute of repose and not one of limitation. “[A] statute of limitations creates ‘a time limit for suing in a civil case, based on the date when the claim accrued.’” CTS Corp. v. Waldburger, ––– U.S. ––––, ––––, 134 S.Ct. 2175, 2182 (2014); . . . . Peterson, 635 N.W.2d at 570. “A statute of repose, on the other hand, … is measured not from the date on which the claim accrues but instead from the date of the last culpable act or omission of the defendant.” CTS Corp., ––– U.S. at ––––, 134 S.Ct. at 2182. The two-year period expressed in SDCL 15–2–14.1 does not begin when a cause of action accrues; it begins when the “alleged malpractice, error, mistake, or failure to cure shall have occurred[.]” SDCL 15–2–14.1. Therefore, as we held in Peterson, the two-year period expressed in SDCL 15–2–14.1 is a period of repose. Compare SDCL 15–2–14.1 (“An action … can be commenced only within two years after the alleged malpractice, error, mistake, or failure to cure shall have occurred….”), with SDCL 15–2–14(3) (“[An action for personal injury] can be commenced only within three years after the cause of action shall have accrued….”). . . . .
The reason for this critical distinction lies in the different policy objectives underlying both types of statutes. “Statutes of limitations require plaintiffs to pursue ‘diligent prosecution of known claims.’” CTS Corp., ––– U.S. at ––––, 134 S.Ct. at 2183. . . . . In contrast, “[s]tatutes of repose effect a legislative judgment that a defendant should ‘be free from liability after the legislatively determined period of time.’” Id. “[They] are based on considerations of the economic best interests of the public as a whole and are substantive grants of immunity based on a legislative balance of the respective rights of potential plaintiffs and defendants struck by determining a time limit beyond which liability no longer exists.” First United Methodist Church, 882 F.2d at 866. Thus, while tolling a period of limitation or estopping a party from asserting it as a defense may be proper, tolling a period of repose or estopping a party from raising it as a defense subverts this legislative objective. Therefore, principles of estoppel and tolling are inapplicable to a period of repose.”
The Court then goes on to explain that the rationale behind the “continuous treatment” exception to the limitations statute is “to prevent the refusal to seek or administer health care due to pending litigation when treatment may be desperately needed” (citing Bosse v. Quam, 537 N.W.2d 8, 10 (S.D. 1995)) and that this exception “also affords a medical provider ‘the opportunity to correct the error before harm ensues.’” (citing Wells v. Billars, 391 N.W.2d 668, 672 n. 1 (S.D. 1986)).
This rationale does not apply to the statute of repose, given its slate-cleaning role:
“The arguments against applying equitable tolling, estoppel, and fraudulent concealment to a period of repose apply with equal force to the tolling that would result from application of the continuous-treatment rule” (citing CTS Corp., ––– U.S. at ––––, 134 S.Ct. at 2183).
The Court then observed that “While the continuous-treatment rule does not apply to a statute of repose, the continuing-tort doctrine does” and that “[w]hen the cumulative result [ ] of continued negligence is the cause of the injury, the statute of repose cannot start to run until the last date of negligent treatment.” (citing Cunningham v. Huffman, 609 N.E.2d 321, 325 (Ill. 1993)).
This “continuing tort” doctrine is the only way for the plaintiff to sue the defendant under the stringent repose provisions.
Mikeska v. Las Cruces Regional Medical Center, LLC, — P.3d — (N.M.App. 2016), 2016 WL 1619353
This decision clarifies that a hospital’s failure to carry out a procedure that diagnoses an emergency patient’s acute condition is actionable not only under the general medical malpractice theory, but also as a violation of the hospital’s statutory duty under the Emergency Medical Treatment and Active Labor Act (EMTALA). The fact that the patient had medical insurance and consequently received no free treatment guaranteed by EMTALA is of no consequence. EMTALA entitles an aggrieved patient to sue the hospital for failure to carry out the appropriate medical screening examination, and not only for denial of emergency care.
“Error in Judgment” Dead in Pennsylvania
Passarello v. Grumbine, 87 A.3d 285 (Pa. 2014)
This decision, which I should have reported last year, reaffirms one of my syllabus cases, Pringle v. Rapaport, 980 A.2d 159 (Pa.Super. 2009) (en banc) –
The “error in judgment” doctrine / jury instruction (see here) is officially dead in Pennsylvania.
Patient Fall: Medical Malpractice or General Tort?
White v. Glen Retirement System, — So.3d — (La.App.2d Cir. 2016) 2016 WL 1664502
Courts coalesce around the view that patient fall injuries are actionable only as medical malpractice except when the care provider acts with intent or malice. This approach gives providers of medical care all the protections that benefit defendants in medical malpractice cases (compulsory suit-screening panel procedure, merit certificate / affidavit as a prerequisite for filing suit, stringent and short time-bars for filing suits that use both limitations and repose mechanisms, strict same-specialty requirement for expert witnesses, damage caps, and other protections).
The recent decision of the Louisiana Court of Appeals, White v. Glen Retirement System, — So.3d —- (La.App.2d Cir. 2016) 2016 WL 1664502, continues this trend. This decision involved a 94–year–old nursing home resident who fell out of her bed that had been placed in the highest position by a certified nursing assistant and suffered bilateral femoral fractures that led to the amputation of her leg. Following this accident, the resident filed a tort suit against the nursing home, alleging negligence and intentional cover-up. She drafted the suit as alleging general torts, rather than medical malpractice, and for that reason did not submit it to a medical review panel prior to filing pursuant to Louisiana’s Medical Malpractice Act.
Both the trial court and the Court of Appeals have applied the substance test and categorized the suit as an action for medical malpractice. Based on that categorization, the Court of Appeals affirmed the trial court’s decision to strike the suit down as premature. The substance test was articulated by the Louisiana Supreme Court in Coleman v. Deno, 813 So.2d 303 (La. 2002), and it includes the following:
1) whether the particular wrong is treatment related or caused by a dereliction of professional skill;
2) whether the wrong requires expert medical evidence to determine whether the appropriate standard of care was breached;
3) whether the pertinent act or omission involved assessment of the patient’s condition;
4) whether an incident occurred in the context of a physician-patient relationship, or was within the scope of activities which a hospital is licensed to perform;
5) whether the injury would have occurred if the patient had not sought treatment; and
6) whether the tort alleged was intentional.
Application of this test leaves no doubt about the suit’s nature. This suit is about medical malpractice and nothing else. The resident’s attempt to describe it differently was artificial at best. Importantly, the resident also offered no evidence to support her “intentional cover-up” theory.
For a similar multifactor test that applies in Texas, see Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496, 504-05 (Tex. 2015). This test includes the following criteria:
- 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;
- 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;
- At the time of the injury was the claimant in the process of seeking or receiving health care;
- At the time of the injury was the claimant providing or assisting in providing health care;
- Is the alleged negligence based on safety standards arising from professional duties owed by the health care provider;
- If an instrumentality was involved in the defendant’s alleged negligence, was it a type used in providing health care; or
- 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?
For my analysis of the Ross decision, see here.
Psychiatric Patients Seeking Voluntary Treatment Can Be Denied Hospitalization in Good Faith Even When the Denial Constitutes Negligence
Binkley v. Allina Health System, 877 N.W.2d 547 (2016)
The Minnesota Commitment and Treatment Act (CTA) §§ 253B.04, 253B.23(4) provides that
“All persons acting in good faith, upon either actual knowledge or information thought by them to be reliable, who act pursuant to any provision of this chapter or who procedurally or physically assist in the commitment of any individual, pursuant to this chapter, are not subject to any civil or criminal liability under this chapter.”
Binkley v. Allina Health System, 877 N.W.2d 547 (2016) – a case featuring a suicidal patient – provides a straightforward illustration of this immunity as precluding suits for negligence. Note that this immunity does not apply to cases involving involuntary confinement to a mental institution.