Issue # 4:5, May 2016

Subsequent Physician Malpractice

Copsey v. Park, — A.3d — 2016 WL 3067358 (Md.Ct.Spec.App. 2016)

Can a physician fend off malpractice accusations by adducing evidence of the patient’s subsequent mistreatment by another doctor?

Maryland’s Court of Special Appeals has recently decided that s/he can. Copsey v. Park, — A.3d — 2016 WL 3067358 (Md.Ct.Spec.App. 2016). This decision was about a patient who came to a hospital’s emergency room to complain about numbness in the right side of his face, right arm and right leg, headaches, shortness of breath, double vision, and trouble walking. The patient underwent an MRI scan, which his first physician (Doctor #1) read as normal. Six days later, the patient suffered a massive stroke and died.

The patient’s wife, children, and mother filed a malpractice suit against Doctor #1. The suit alleged that Doctor #1 negligently misread the patient’s MRI.

At a subsequent trial, Doctor #1 offered evidence that revealed the following facts:

Five days after the first MRI scan, the patient saw another physician, Doctor #2, to whom he complained about double vision, headaches, hiccups and trouble swallowing. Doctor #2 ordered another brain MRI and requested an urgent interpretation. This scan was performed by Doctor #3, who found indications of acute infarction. Instead of promptly notifying Doctor #2 about this finding, Doctor #3 forwarded it to an on-call neurologist, Doctor #4, six hours later. Doctor #4, for his part, did nothing. Doctor #2 could access this information by logging into the hospital’s computer database or following up with the radiology department. Instead, he opted to review the MRI films himself and found no abnormalities. Based on that finding, he sent the patient home for the night. During that night, the patient suffered a massive stroke from which he did not recover.

The trial judge admitted this evidence over the plaintiffs’ objection. This ruling was followed by a trial, after which the jury returned a verdict in favor of Doctor #1.

The Court of Special Appeals upheld this verdict. According to the court, Doctor #1 was entitled to prove that the negligent acts of Doctors #2, #3 and #4 were solely responsible for the patient’s death. More importantly, the court also reasoned that Doctor #1 was entitled to establish that those acts amounted to a superseding cause. The court pointed out that a paradigmatic example of foreseeable, and hence not superseding, negligence by treating physicians “arose in automobile cases where doctors aggravated, or failed to cure, injuries caused by the negligent driver” and that this principle has been extended to cases featuring a physician’s failure to properly diagnose a patient and a failure of subsequent healthcare providers “to avoid the harm set in motion by the initial misdiagnosis.”

The court held, however, that a proposition that any negligence in the first doctor’s diagnosis makes him “per se liable for the subsequent negligence” of other treating physicians “is a mischaracterization of the law regarding consecutive tort liability.” The court explained that “in cases involving acts of negligence by subsequent treating physicians, the liability of the initial treating physician can be cut off if subsequent negligence by another physician constitutes a superseding cause.” To constitute a superseding cause, the subsequent physician’s negligence must be independent of the first physician’s mistake. Evidence adduced by Doctor #1 made a prima facie showing to this effect. The jury therefore was properly asked to consider it in deciding the case.

Hat tip to Attorney Patrick Malone for drawing my attention to this decision.

Malpractice, Terminal Patients, and Cause in Fact

Mickels v. Danrad, 486 S.W.3d 327 (Mo. 2016)

This decision involved a physician who negligently failed to diagnose the presence of a malignant brain tumor, from which the patient was doomed to die. The patient first saw the physician when he experienced numbness, blurred vision, and headaches. The physician sent the patient to an MRI scan, which he subsequently reviewed but made no diagnosis. Eleven weeks later, the patient arrived at a hospital in an altered mental state and underwent a CT scan of his brain, which showed a malignant and incurable tumor. Four months later, the patient died of that tumor. According to patient’s oncologist – who testified as a witness in a subsequent malpractice trial – the tumor was incurable when the patient first saw the physician. The plaintiffs offered no evidence controverting that testimony.

The physician moved for summary judgment. He claimed that the plaintiffs produced no prima facie evidence that could establish cause in fact. The trial court agreed with the physician, but ultimately the Missouri Supreme Court reversed that decision. The Court ruled 4-3 that the plaintiffs could not establish wrongful death, but they could still sue the physician for malpractice that shortened the patient’s life as representatives of his estate. The Court clarified in connection with this ruling that “This approach keeps the question of the time and date of the decedent’s death out of the causation analysis and confines it to the damages analysis where it belongs.” Id. at 331.

This decision enabled the plaintiffs to seek jurors’ determination on the available treatments that could prolong the patient’s life and use this factor as a basis for their entitlement to compensation.

The dissent, written by Judge Teitelman, disagreed with the Court’s proposition that a terminally ill patient can never suffer a wrongful death. According to Judge Teitelman, the physician in the case at bar may well have caused the patient’s death even when one assumes that the patient was doomed to die of the tumor. Id. at 332.

This opinion is flawed. When the patient first saw the physician, he faced two alternative prospects: (1) dying of the tumor after receiving best available treatment; and (2) dying of the untreated tumor. Hence, the physician’s malpractice may only have shortened the patient’s life. It certainly did not kill the patient. The Court’s decision was absolutely correct, and it also responds to the need to protect terminal patients against malpractice.

Medical Malpractice vs. General Negligence under California Law

Flores v. Presbyterian Intercommunity Hosp., 369 P.3d 229 (Ca. 2016)

Under California statute, a plaintiff’s ability to file a medical malpractice suit expires in one year after the accrual of the cause of action. The statute tolls this period for two additional years, provided that the plaintiff files the suit within one year after he discovers the injury or could reasonably have discovered it. Cal. Code Civ. Proc. § 340.5 (providing that suits for medical malpractice must be filed “three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first.”). For other personal injury suits, the limitations period is “two years of the date on which the challenged act or omission occurred.” Cal. Code Civ. Proc. § 335.1.

In the case at bar, the plaintiff was injured when one of the rails on her hospital bed collapsed. The rail had been raised pursuant to an order made by the plaintiff’s physician following a medical assessment of her condition. The plaintiff sued the hospital under the general negligence theory in the hopes to benefit from a two-year limitations period set by section 335.1. The California Supreme Court, however, categorized the suit as alleging medical malpractice because the plaintiff’s injury resulted from the “alleged negligence in the use and maintenance of equipment needed to implement the doctor’s order concerning her medical treatment.”

This categorization relied on Murillo v. Good Samaritan Hosp., 99 Cal.App.3d 50, 57 (Cal.App. 1979)—a decision in which California’s Court of Appeals explained that the test for distinguishing between general negligence and medical malpractice “is not whether the situation calls for a high or a low level of skill, or whether a high or low level of skill was actually employed, but rather …. whether the negligent act occurred in the rendering of services for which the health care provider is licensed.”

In tune with this decision, the Court set up the “integral relationship’ test. Specifically, it ruled that “A hospital’s negligent failure to maintain equipment that is necessary or otherwise integrally related to the medical treatment and diagnosis of the patient implicates a duty that the hospital owes to a patient by virtue of being a health care provider.” Suits complaining about violations of any such duty therefore must be filed within the timeframe of Cal. Code Civ. Proc. § 340.5.

More on Suit Categorization: Medical Malpractice or Fraud?

CHRISTUS Health Gulf Coast v. Carswell, — S.W.3d — (Tex. 2016), 2016 WL 2979718

This decision involved cover-up allegations brought by the widow of a patient who died in a hospital. The widow attributed to the hospital post-mortem fraud. She claimed that the hospital concealed information showing that her husband received deficient care. She also alleged that the hospital failed to notify the local Medical Examiner about the death incident and rushed to perform an autopsy at an affiliated medical facility. After finding these allegations meritorious, the jury awarded the widow compensation that included $1,000,000 in exemplary damages. Pursuant to the statutory cap on exemplary damages for medical malpractice, the trial court reduced this award to $750,000. The court of appeals upheld this decision and the Texas Supreme Court gave it its affirmation as well.

The Court categorized the widow’s allegations as a complaint about medical malpractice. Specifically, it held that these allegations constitute a “health care liability claim,” defined in Tex. Civ. Prac. & Rem. Code § 74.001(a)(13) as including “professional or administrative services directly related to health care.” Post-mortem fraud accusations, it explained, are about professional or administrative services directly related to health care. The Court also clarified that “Even if persons can no longer be patients after they die …. the inquiry does not end there. As to a claim based on professional or administrative services, the statute does not require that the person alleging injury was a patient during the relevant period. Neither does it require that the alleged injury must have occurred during or contemporaneously with health care, nor that the alleged injury was caused by health care.”

The Court made this decision without asking itself whether a caregiver’s intentional wrongdoing against a patient or her family can ever be properly categorized as “medical malpractice.” Arguably, such wrongdoings do not deserve the special protections given to defendants in medical malpractice cases. Cf. Manor Care, Inc. v. Douglas, 763 S.E.2d 73 (W. Va. 2014).

Tort Reform in Oregon: Constitutional, After All?

Horton v. Oregon Health and Science University, — P.3d — 359 Or. 168 (Or. 2016)

Three years ago, Oregon’s Supreme Court voided the state’s $500,000 cap on noneconomic damages for medical malpractice for violating the constitutional guarantee that “In all civil cases the right of Trial by Jury shall remain inviolate” (Or. Const., Art. I, § 17, as interpreted in Lakin v. Senco Products, Inc., 987 P.2d 463, modified, 987 P.2d 476 (Or. 1999)). Klutschkowski v. Oregon Medical Group, 311 P.3d 461 (Or. 2013). This cap also clashed with “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, as interpreted in Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001), and in Hughes v. PeaceHealth, 178 P.3d 225 (Or. 2008)). The Court reasoned that a person’s right to recover full jury-assessed compensation for injuries recognized as actionable in 1857, when Oregon adopted its constitution, cannot be abolished or abridged by statute or common law. For my discussion of the Klutschowski decision, see here. For my discussion of a similar entrenchment principle adopted by the Utah Supreme Court in Smith v. United States, 356 P.3d 1249 (Utah 2015), see here.

The Oregon Supreme Court has now changed this course in a long precedential decision, Horton v. Oregon Health and Science University, — P.3d —- 359 Or. 168 (Or. 2016). This decision upheld the constitutionality of Oregon’s Tort Claims Act that caps the total amount of compensation recoverable from the state at $3,000,000. The Court made this decision in connection with medical malpractice committed (inter alia) by a surgeon employed by the state. After trial, the jury found that this malpractice caused the patient economic damages that exceeded $6,000,000 and a roughly the same amount of noneconomic damages ($6,000,000). The trial court denied the surgeon’s request to reduce this award to the total of $3,000,000 after declaring the cap unconstitutional, but the Supreme Court has ruled on direct appeal that the award should be capped.

The Court carried out an extensive historical analysis of the right to a civil jury trial and the remedy clause of the Oregon Constitution. Based on that analysis, it overruled Lakin and Smothers. The Court decided that the constitutional right to a civil jury trial is procedural rather than substantive. Correspondingly, it held that changes in substantive laws that jurors must apply do not clash with this right. The Court then moved on to explain that “Whatever other constitutional issues a damages cap may present, a damages cap does not reflect a legislative attempt to determine a fact in an individual case or to reweigh the jury’s factual findings. Rather, a statutory cap is a legal limit on damages that applies generally in a class of cases.”

With regard to the remedy clause the Court decided that “When the legislature does not limit the duty that a defendant owes a plaintiff but does limit the size or nature of the remedy, the legislative remedy need not restore all the damages that the plaintiff sustained to pass constitutional muster …. but a remedy that is only a paltry fraction of the damages that the plaintiff sustained will unlikely be sufficient.” Based on this criterion, the Court ruled that “the remedy that the legislature has provided for tort suits against the government aligns with the constitution because it “represents a far more substantial remedy than the paltry fraction” and accommodates “the state’s constitutionally recognized interest in sovereign immunity and a plaintiff’s constitutionally protected right to a remedy.”

This decision reopens the constitutionality question with regard to the state’s $500,000 cap on noneconomic damages for medical malpractice. In a non-catastrophic case, an award of $500,000 for pain, suffering and other noneconomic damages will normally satisfy the “substantial remedy” criterion. Cases in which such an award will likely be considered “paltry” and hence unconstitutional are those that involve the patient’s death or catastrophic injury.