ISSUE # 4:7, JULY 2016

Undiagnosed Cancer under Alabama’s Statute of Repose

Cutler v. University of Alabama Health Services Foundation, P.C., — So.3d — 2016 WL 3654760 (2016)

Alabama Code Section 6–5–482(a) that extends to “all actions against physicians, surgeons, dentists, medical institutions, or other health care providers for liability, error, mistake, or failure to cure, whether based on contract or tort” prescribes, (inter alia) that –

“in no event may the action be commenced more than four years after such act.”

The Alabama Supreme Court interprets this provision as beginning the four-year repose period when the plaintiff suffers “legal injury” from the defendant’s malpractice. See Crosslin v. Health Care Auth. of Huntsville, 5 So.3d 1193, 1196 (Ala. 2008) (“‘[w]hen the wrongful act or omission and the resulting legal injury do not occur simultaneously, the cause of action accrues and the limitations period of § 6–5–482 commences when the legal injury occurs’” (quoting Mobile Infirmary v. Delchamps, 642 So.2d 954, 958 (Ala. 1994)). This interpretation is far more generous to plaintiffs than the conventional doctrine of repose. Under that doctrine, the countdown of the statutory repose period begins on the day of the physician’s malpractice even when the patient develops the resulting illness or injury later on. For my analysis of the conventional doctrine of repose, see here and here.

This plaintiff-friendly interpretation did not help the plaintiff in Cutler v. U. Ala. Health Services Foundation, — So.3d —- 2016 WL 3654760 (2016). In that recent case, the plaintiff complained that the defendants failed to inform him of a malignant tumor/lesion in the right frontal region of his brain that was discovered by MRI but misidentified as a bruise from a motorcycle accident. This mistake occurred on June 28, 2005, one day after the accident. As a result, the plaintiff lost his ability to sue the defendants on June 29, 2009. The plaintiff’s suit, filed in October 2015, consequently was dismissed by the trial court. The Alabama Supreme Court affirmed that decision.

The plaintiff tried to save the day by relying on Alabama’s Crosslin precedent, but that case was different from his. In Crosslin, the plaintiff’s doctors failed to inform him about a tumor in his pituitary gland, but the plaintiff argued that the tumor was not malignant at the time of that malpractice. He claimed that the tumor became malignant and caused him vision loss in both of his eyes later on. According to the plaintiff, Mr. Crosslin, this “legal injury” was less than four years old when he filed the suit, and for that reason he was not precluded from filing the suit. In Cutler, by contrast, the plaintiff argued that the misdiagnosed tumor (or lesion) was malignant from day one. For that reason, the Alabama Supreme Court decided that the plaintiff’s suit was barred by the statute of repose.

The Cutler and Crosslin decisions distort the litigation incentives for Alabama’s patients and doctors in cases involving misdiagnosed tumors and lesions. For an aggrieved patient whose suit faces extinction under the statute of repose, the best strategy is to claim that the misdiagnosed tumor (or lesion) became malignant at a later point in time and that the malignancy is less than four years old. Such a claim might weaken the patient’s allegation of diagnostic malpractice, but taking this risk will always be preferable to losing the case instantaneously under the repose provision. For doctors and hospitals, on the other hand, the best strategy is to claim (based on old records and scans) that malignancy was already present at the time of the diagnostic error. Such a claim might constitute an implicit acknowledgment of malpractice, but this acknowledgment will have no consequences because the repose provision will kill the patient’s suit. The conventional repose doctrine prevents such distortions, but it does so by denying remedies to at least some deserving plaintiffs.

Battery claim alleging lack of informed consent classified as a “medical malpractice” claim that requires medical expert affidavit

Humboldt Gen. Hosp. v. Sixth Jud. Dist. Ct., 376 P.3d 167 (Nev. 2016)

This case involved a patient who carried an intrauterine device (IUD) surgically implanted at the defendant hospital. One year after the IUD’s installation, the plaintiff received a letter from the hospital stating that the IUD was not approved by the FDA because it was shipped from Finland to a Canadian pharmacy rather than to a location in the United States. This IUD was identical to FDA-approved IUDs manufactured at the same plant in Finland. The patient filed a battery suit against the hospital and the doctor who installed the IUD. In that suit, she alleged that the defendants “knew or reasonably should have known that [she] did not consent to the implantation in [her] body of [an] IUD which lacked FDA approval.”

The Nevada Supreme Court ruled that this suit sounded in medical malpractice and consequently must have been accompanied by an affidavit from a qualified medical expert. The Court explained that “A battery is an intentional and offensive touching of a person who has not consented to the touching, and [it] is well settled that a physician who performs a medical procedure without the patient’s consent commits a battery irrespective of the skill or care used. Courts typically only allow consent issues to proceed as battery claims in those circumstances when a doctor performs an operation to which the patient has not consented” (citations omitted).

The Court then went on to clarify that “The distinction between informed consent and battery claims is based on the concept that a doctor may show, in informed consent cases, that the disclosure he omitted to make was not required within his medical community. However, expert opinion as to [the] standard [of care] is not required in a battery count, in which the patient must merely prove failure to give informed consent and a mere touching absent consent” (citations omitted). Based on these observations and the facts of the case, the Court drew the following conclusion:

“Accordingly, where a plaintiff claims not to have consented at all to the treatment or procedure performed by a physician or hospital, we conclude that such an allegation constitutes a battery claim and thus does not invoke [the] medical expert affidavit requirement. However, … where general consent is provided for a particular treatment or procedure, and a question arises regarding whether the scope of that consent was exceeded, an expert medical affidavit is necessary.”

This decision is absolutely correct, as well as important and useful as a precedent.

End-of-Life Directives and Medical Malpractice

Doctors Hosp. of Augusta v. Alicea, — S.E.2d — 2016 WL 3658910 (Ga. 2016)

An elderly person made an advance end-of-life directive, which provided as follows:

“Choice NOT to Prolong Life.

I do not want my life to be prolonged if (1) I have an incurable[ ] and irreversible condition that will result in my death within a relatively short time, (2) I become unconscious and, to a reasonable degree of medical certainty, I will not regain consciousness, or (3) the likely risks and burdens of treatment would outweigh the expected benefits.”

The person also appointed her granddaughter as her healthcare agent “authorized to make all health-care decisions for me, including decisions to provide, withhold, or withdraw artificial nutrition and hydration, and all other forms of health care to keep me alive.” The directive also stated that “My agent shall make health-care decisions for me in accordance with this power of attorney for health care, any instructions I give in this form, and my other wishes to the extent known to my agent. To the extent my wishes are unknown, my agent shall make healthcare decisions for me in accordance with what my agent determines to be in my best interest. In determining my best interest, my agent shall consider my personal values to the extent known to my agent.”

Two years later, the person was hospitalized. While she was experiencing respiratory distress in the early morning hours, her doctor decided to have her intubated and put on a ventilator to prevent her from going into respiratory or cardiac arrest. A nurse asked the doctor if he wanted to call the patient’s granddaughter before ordering the life-prolonging intubation. In response, the doctor said “I’m not going to call her at six o’clock in the morning and scare the hell out of her. I’ll wait till, you know, she wakes up and then I’m going to call her and tell her what happened.” Later on, the doctor told the on-duty physician that he does not want the patient to die. The doctor’s decision was practically irreversible because taking the patient off the ventilator and having her extubated would have caused her to suffocate and die. As a result, the patient remained alive while suffering for another week.

The patient’s granddaughter sued the doctor and the hospital for medical malpractice.

The patient’s advance end-of-life directive was made pursuant to Georgia’s Advanced Directive Act of 2007, Ga. L. 2007, p. 133, § 1 (the “ADA”). The ADA provides, inter alia, that “if the health care provider is unwilling to comply with the health care agent’s decision, the health care provider shall promptly inform the health care agent who shall then be responsible for arranging for the [patient’s] transfer to another health care provider” and that “a health care provider who is unwilling to comply with the health care agent’s decision shall provide reasonably necessary consultation and care in connection with the pending transfer.” The ADA also gives such providers broad immunity from liability for malpractice when they act in good faith and promptly inform the patient’s agent of their refusal or failure to comply with the agent’s direction or decision and assist with the patient’s transfer to another medical facility. The doctor and the hospital invoked that immunity to obtain summary judgment.

The Georgia Supreme Court ruled in the plaintiff’s favor. Specifically, it held that “a provider cannot claim this immunity when his action was not based in good faith on the agent’s direction, just because the decision he made for the patient happens to be one that arguably complied or failed to comply with what the agent would have decided. Put another way, when the health care provider makes the patient’s health care decisions on his own, without relying in good faith on what the patient’s agent directed, the provider must defend his actions without the immunity.”

This decision squarely aligns with the statutory text and policy.

Expert Witnesses:

The “same specialty” standard does not require experts to show actual experience in the procedure in question

Zarate-Martinez v. Echemendia, — S.E.2d — 2016 WL 3658913 (Ga. 2016)

In this recent case, the Georgia Supreme Court has ruled that the state’s “same specialty” requirement is not unconstitutional. The plaintiff’s constitutional challenges against this requirement were unpromising and there is no need to discuss them.

The Court’s decision, however, contains an important clarification: the “same specialty” standard does not require experts to show actual experience in the procedure in question. The Court made that clarification in regard to Georgia’s statute, OCGA §§ 24–7–702 (c) (2) (A) & (B), according to which –

(c) [I]n professional malpractice actions, the opinions of an expert, who is otherwise qualified as to the acceptable standard of conduct of the professional whose conduct is at issue, shall be admissible only if, at the time the act or omission is alleged to have occurred, such expert:

(2) In the case of a medical malpractice action, had actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given as the result of having been regularly engaged in:

(A) The active practice of such area of specialty of his or her profession for at least three of the last five years, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in performing the procedure, diagnosing the condition, or rendering the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue; or

(B) The teaching of his or her profession for at least three of the last five years as an employed member of the faculty of an educational institution accredited in the teaching of such profession, with sufficient frequency to establish an appropriate level of knowledge, as determined by the judge, in teaching others how to perform the procedure, diagnose the condition, or render the treatment which is alleged to have been performed or rendered negligently by the defendant whose conduct is at issue.

This statutory arrangement is fairly standard, which makes the decision described below generally important. This decision cited and reaffirmed the Court’s previous holding in Dubois v. Brantley, 775 S.E.2d 512 (Ga. 2015), that “A careful reading of the text [of OCGA §§ 24–7–702 (c) (2) (A) and (B)] shows that Rule 702 (c) (2) (A) and (B) do not require that an expert actually have performed or taught the very procedure at issue. Rather, these provisions require only: [t]hat the expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given … No doubt, the simplest way to demonstrate that an expert has “an appropriate level of knowledge … in performing [a] procedure … [or] teaching others how to perform [a] procedure” is by proof that the expert actually has done these things himself. Moreover, it may be that, in many cases, if an expert has not actually performed or taught a procedure himself, he will be found lacking “an appropriate level of knowledge.” But by the plain terms of the statute, the pertinent question is whether an expert has “an appropriate level of knowledge … in performing the procedure … [or] teaching others how to perform the procedure,” not whether the expert himself has actually performed or taught it.”

Based on this interpretation of the statute, the Court reversed the trial judge’s decision to strike an affidavit of the plaintiff’s expert who failed to state her experience with the procedure in question. The Court ruled in this connection that “In rejecting this … affidavit, the trial court once again relied on the number of open laparoscopic tubal ligations that Dr. Hendrix may or may not have performed in at least three of the last five years, rather than focusing on whether she had the “appropriate level of knowledge … in performing the procedure” at issue, in order to be qualified as an expert. … Because the trial court’s reasoning with regard to striking this second affidavit is … inconsistent with the analysis that this Court set forth in Dubois, the trial court must reconsider its decision relating to this … affidavit under the requirements of Dubois as well.”