Tort Law: Public and Private

Readers interested in medical malpractice might be interested in seeing—and commenting on—my new article, The Domain of Torts, forthcoming in 117 Colum. L. Rev. (2017).

This Article advances a novel positive theory of the law of torts that grows out of a careful and extensive reading of the case law. The Article’s core insight is that the benefit from the harm-causing activity determines the form and substance of tort liability. This finding is both surprising and innovative, since tort scholars universally believe that the operation of the doctrines that determine individuals’ liability for accidents—negligence, causation, and damage—is driven by harms, not benefits. The key role of benefits in the operation of our tort system has eluded the searching eye of scholars, even though it is fully consistent with the case law.

Specifically, this Article shows that our tort system operates in two parallel modes—private and public—rather than just one, as conventional accounts erroneously suggest. Furthermore, the system’s mode of operation and the rules allocating liability for accidental harm are dictated by the type of the benefit sought by the alleged tortfeasor. If the benefit sought by the tortfeasor is purely private, she will be held liable for the harm resulting from her actions whenever she exposes her victim to a nonreciprocal risk. The tort system never allows actors to inflict harm on others when the benefit they seek to derive from their activity is purely private, no matter how significant that private benefit is relative to the victim’s harm. The system consequently does not hesitate to discourage the production of private benefits even when they are economically more valuable than the victim’s safety. That is, in cases of private benefit, tort law excludes cost-benefit analysis in favor of the reciprocity and equality principles. When the benefit that accompanies the harm-causing activity is public, by contrast, tort law adopts a strictly utilitarian approach and focuses exclusively on minimizing the cost of accidents and the cost of avoiding accidents as a total sum. Liability in such cases is imposed based on the famous Learned Hand formula (and similar formulations). Accordingly, if the benefit from the harm-causing activity is greater than the expected harm and precautions are too costly, no liability will be imposed. The consequent reduction in the victim’s protection is counterweighted by society’s need not to chill the production of public benefits that the victim enjoys on equal terms with all other members of her community.

This insight has far-reaching implications for tort doctrine and theory. Contemporary scholarly debates about our tort system’s goals interpret the system as promoting fairness and corrective justice or, alternatively, economic efficiency. This Article demonstrates, however, that this dichotomous view is fundamentally mistaken. Careful analysis of the case law reveals that our tort system promotes fairness and corrective justice only when it operates in the private mode and that, when the system switches to the public mode, it aims at achieving economic balance between victims’ safety and the production of public benefits. The Article also demonstrates that tort doctrine is best understood as accident law because it focuses predominantly on individuals’ mutually unwanted interactions, identified as accidents, as opposed to mutually wanted and coercive interactions regulated, respectively, by contract law and criminal law. Switches between these regulatory regimes, and between torts and regulatory laws, only occur as a result of doctrinal migrations.


Roberts v. State, 396 So.2d 566 (La.App.3d Cir. 1981). This case was about a mobility-trained blind person, familiar with his surroundings, who accidentally collided with—and injured—another person on his way to a restroom. The underlying benefit (using restroom) was private and the risk of accident to which the defendant exposed the plaintiff was socially acceptable and hence reciprocal. The court properly decided that the injurer’s conduct was not negligent under principles of corrective justice.

This private-mode decision sails apart from the Louisiana Supreme Court precedents that applied the Learned Hand formula to accident-causing activities that produced public benefits. See, e.g., Levi v. Sw. La. Elec. Membership Coop., 542 So. 2d 1081, 1087 (La. 1989); Reed v. Wal-Mart Stores, Inc., 708 So. 2d 362, 365 (La. 1998), Chambers v. Village of Moreauville, 85 So. 3d 593, 597-98 (La. 2012).

Compare a public-mode decision, Mickels v. Danrad, 486 S.W.3d 327, 330-31 (Mo. 2016), with a private-mode decision, Jordan v. Jordan, 257 S.E.2d 761, 762-63 (Va. 1979).

In Mickels, the accident-causing activity was provision of medical care. The court imposed liability on a physician who negligently failed to diagnose the presence of a malignant brain tumor from which the patient was about to die anyway.

In Jordan, the accident-causing activity was car driving for purposes of a social visit. The court refused to impose liability on the defendant who negligently backed up her car without looking in the rearview mirror and ran over the plaintiff, who could not be seen from the mirror.

Also consider Alder v. Bayer Corp., AGFA Div., 61 P.3d 1068, 1071-72, 1089-90 (Utah 2002). This decision of the Utah Supreme Court was about a manufacturer’s negligent installation and servicing of an x-ray machine at a hospital. The manufacturer’s negligence included failure to secure ventilation that could drive away chemical fumes coming from the machine. Shortly after the machine’s installation, technicians who operated it have developed chronic fatigue syndrome—an ailment that could be brought about by other causes as well. The Utah Supreme Court held that the safety protocol violated by the manufacturer aimed at preventing the type of harm suffered by the technicians. Under such circumstances, it explained, temporal proximity between the harm and the violation can properly substitute for causation evidence.

This and similar public-mode decisions (e.g., Zuchowicz v. United States, 140 F.3d 381 (2d Cir. 1998)) stand in stark contrast to the private-mode cases in which courts have applied the strict but-for standard for causation.

Does an Arbitration Clause in a Nursing Home Agreement Preclude Tort Actions Relating to the Resident’s Wrongful Death?

Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016)

Arbitration clauses in nursing home agreements are pretty much standard. Whether such a clause precludes tort actions complaining about the resident’s wrongful death is consequently an important issue. The Pennsylvania Supreme Court has recently addressed this issue in Taylor v. Extendicare Health Facilities, Inc., 147 A.3d 490 (Pa. 2016).

In that case, the resident’s family members sued the nursing home in their individual capacity as derivative victims of the alleged tort (the wrongful death action) and as representatives of the resident’s estate (the survival action). In the wrongful death action, the plaintiffs sought compensation for the emotional harm they sustained from losing their loved one prematurely and possibly for their economic losses as the resident’s dependents (the Court’s decision provides no details on that). The survival suit, on the other hand, focused on the resident’s entitlement to be compensated for pain and suffering and other harms she sustained from the alleged negligence. This entitlement belonged to the resident’s estate rather than her successors as individuals.

The agreement between the resident and the nursing home contained a standard compulsory arbitration provision that covered any resident’s suit against the nursing home. This provision consequently extended to the survival action, but not to the wrongful death suit filed by the nonparties to the agreement. However, under Pennsylvania Rule of Civil Procedure 213(e), wrongful death and survival actions cannot be bifurcated and must be tried together. Based on that rule, the trial court decided that the two actions must be consolidated, and because one of the actions fell outside the scope of the arbitration provision, both actions should go to trial.

The Pennsylvania Supreme Court overturned this decision for failure to account for the Federal Arbitration Act (FAA), as interpreted (inter alia) in Southland Corp. v. Keating, 465 U.S. 1, 3 (1984); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 20 (1983); Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985); AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 346 (2011); and KPMG LLP v. Cocchi, 132 S.Ct. 23, 26 (2011). The Court ruled that FAA preempts Rule 213(e) and that the wrongful death and survival actions must be considered separately and not together. The wrongful death action must go to court. The survival action goes to arbitration.

The Court reasoned that –

“We recognize that Rule 213(e) is a procedural mechanism to control case flow, and does not substantively target arbitration. However, the Supreme Court directed in Concepcion that state courts may not rely upon principles of general law when reviewing an arbitration agreement if that law undermines the enforcement of arbitration agreements. We cannot require a procedure that defeats an otherwise valid arbitration agreement, contrary to the FAA, even if it is desirable for the arbitration-neutral goal of judicial efficiency. See Concepcion, 563 U.S. at 351, 131 S.Ct. 1740 (“States cannot require a procedure that is inconsistent with the FAA, even if it is desirable for unrelated reasons.”). Declining to bifurcate the wrongful death and survival actions against Extendicare in the interest of efficiency would nullify the ADR Agreement, a result not permitted by the Supreme Court’s FAA jurisprudence. …

Collectively, Moses H. Cone, Dean Witter and KPMG instruct that the prospect of inefficient, piecemeal litigation proceeding in separate forums is no impediment to the arbitration of arbitrable claims. Indeed, where a plaintiff has multiple disputes with separate defendants arising from the same incident, and only one of those claims is subject to an arbitration agreement, the Court requires, as a matter of law, adjudication in separate forums.”

The Court also cited in this connection Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218 (1985) (“[T]he [FAA] requires district courts to compel arbitration of pendent arbitrable claims when one of the parties files a motion to compel, even where the result would be the possibly inefficient maintenance of separate proceedings in different forums.”).

The upshot of this decision is maximal enforcement of the nursing homes’ arbitration clauses. To avoid arbitration, plaintiffs must rely on federal, rather than state, law. For example, FAA Section 2 authorizes state courts to set aside arbitration agreements “upon such grounds as exist at law or in equity for the revocation of any contract.” In AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011), the Supreme Court explained this provision by saying that it “permits agreements to arbitrate to be invalidated by generally applicable contract defenses, such as fraud, duress, or unconscionability [as opposed to] defenses that apply only to arbitration.” Moreover, nursing home agreements designating disputes to be arbitrated before the National Arbitration Forum (NAF) and according to NAF’s rules, are unlikely to be enforced following the consent judgment in the litigation between NAF and Minnesota’s Attorney General, according to which NAF agreed that it would not administer, process, or participate in any consumer arbitration filed on or after July 24, 2009. See here and here.

That being said, arbitrating a medical malpractice dispute instead of litigating it in court is often advantageous to the plaintiff. See here and here.

The Ill-Designed “Continuous Treatment” Rule for the Health Law of Massachusetts

Parr v. Rosenthal, 57 N.E.3d 947 (Mass. 2016)

Under Massachusetts law, suits alleging medical malpractice in a treatment of a minor patient must be filed “within three years from the date the cause of action accrues.” G.L.c. 231, § 60D. In a recent case, Parr v. Rosenthal, 57 N.E.3d 947 (Mass. 2016), the Supreme Judicial Court of Massachusetts decided that a patient’s continuous treatment by the same physician can toll this period under certain restrictive conditions. One of those conditions requires the plaintiff to show that the physician continued to treat the patient “for the same or related condition” after committing the alleged malpractice, and that “treatment” in that context includes supervision of, as well as consultation and advice to, other treating physicians. Another condition makes continuous treatment part of the discovery rule that moves the onset of the limitations period to the day on which the patient knew or could have reasonably suspected that her physician treated her negligently. According to the Court, continuous treatment instills in the patient “innocent reliance” that the physician treats her properly, which makes the physician’s malpractice not reasonably discoverable. Moreover, innocent reliance can even be present when the patient realizes that she sustained harm from the physician’s treatment. As the Court explained, “A patient who continues under the care of the same physician will still have the same challenges in learning whether the harm [she] suffered from the physician’s treatment arose from the physician’s negligence.” Based on these observations, the Court decided that the “continuous treatment” rule will not benefit patients who affirmatively suspected that they received negligent treatment from their physician. Such patients, the Court held, cannot show “innocent reliance.”

The newly formulated rule did not help the plaintiffs in the case at bar. The plaintiffs were denied tolling for two reasons. First, the plaintiffs’ cause of action was reasonably discoverable for the period that exceeded three years. Second, the defendant physician discontinued his involvement in the treatment of the plaintiffs’ infant son more than three years prior to the filing of the suit.

The newly formulated rule also did not improve the health law of Massachusetts. The Court’s adoption of “innocent reliance” as a reason for allowing continuous treatment to toll the statute of limitations originated from a serious misconception. The “innocent reliance” rationale animates the continuous treatment rule in the context of attorney malpractice, but attorney malpractice and medical malpractice are not the same. The continuous treatment rule serves a distinct social purpose in the system of medical malpractice and health law generally. This rule is premised on the belief that “the most efficacious medical care will be obtained when the attending physician remains on a case from onset to cure.” Grey v. Stamford Health System, Inc., 924 A.2d 831, 837 (Conn. 2007); see also Blanchette v. Barrett, 640 A.2d 74, 85 (Conn. 1994); Ewing v. Beck, 520 A.2d 653, 659–60 (Del. 1987). Equally important, absent the continuous treatment rule, the statute of limitations will fracture the trust between patients and physicians by putting pressure on the patient to promptly sue her doctor when anything goes wrong. This prospect is inimical to good healthcare. The continuous treatment rule consequently avoids creating “a dilemma for the patient, who must choose between silently accepting continued corrective treatment from the offending physician, with the risk that his claim will be time-barred or promptly instituting an action, with the risk that the physician-patient relationship will be destroyed.” Rizk v. Cohen, 535 N.E.2d 282, 285 (N.Y. 1989).

Under this rationale, continuous treatment should toll the statute of limitations by its own force rather than as a component of the discovery rule. Correspondingly, the continuous treatment rule should also benefit a patient who knows about her physician’s mistake, but still wants to allow the physician to fix it. There is no need to condition the tolling of the statute of limitations on the patient’s “innocent reliance.”

The Court put the “innocent reliance” requirement in place to prevent patients from obtaining continuous treatment strategically in order to circumvent the statute of limitations. However realistic it may be in the attorney malpractice context, from which the Court drew the “innocent reliance” requirement, this scenario is far removed from the realities of medical care. A patient who knows or suspects that she was mistreated by her physician will not rationally choose to receive additional treatment from that physician, instead of suing him for malpractice, unless she believes that the treatment will improve her condition. And if the patient believes or hopes that the treatment will improve her condition, choosing to go with that treatment while preserving the option of filing a malpractice suit against the physician is neither improper nor illegitimate.

Discovery and Privileged Documents under the Patient Safety and Quality Improvement Act of 2005

Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759 (Ky. 2016)

The Patient Safety and Quality Improvement Act of 2005, 42 U.S.C.A. § 299b-21 et. seq., sets up a framework for exchange of patient safety information among providers of medical care in the hopes to pool that information together and develop “an enduring national system capable of studying, analyzing, disseminating, and acting on events, solutions, and recommendations for the betterment of national patient safety, healthcare quality, and healthcare outcomes.” Tibbs v. Bunnell, 448 S.W.3d 796, 800 (Ky. 2014).

This information exchange is facilitated by special patient safety organizations. To incentivize this exchange and encourage self-critical analysis, the Act sets up a privilege that protects patient safety work products against disclosure. Id. at 801.

Under the Act, this privilege does not extend to:

(i) …. a patient’s medical record, billing and discharge information, or any other original patient or provider record.

(ii) …. information that is collected, maintained, or developed separately, or exists separately, from a patient safety evaluation system.

42 U.S.C.A. § 299b–21 (7) (B).

The Act further clarifies that “ Nothing in this part shall be construed to limit …. the discovery of or admissibility of information described in this subparagraph in a criminal, civil, or administrative proceeding….

42 U.S.C.A. § 299b–21 (7) (B) (iii).

Based on these provisions, the Kentucky Supreme Court recently decided that “The information that is usually contained in state-mandated reports is not protected by the patient safety work product privilege provided in the Act and will be discoverable. Because the provider is claiming the privilege, it bears the burden of proving that it complied with the statutory and regulatory reporting requirements. If the provider fails to meet that burden, the party seeking the information then bears the burden of establishing what information is generally contained in state-mandated reports.” Baptist Health Richmond, Inc. v. Clouse, 497 S.W.3d 759, 766 (Ky. 2016).

This case involved a patient who passed away after undergoing laproscopic surgery at a hospital. The patient’s husband and estate sued the hospital (and several doctors) alleging that her death was the result of medical malpractice. The plaintiffs sought and subsequently filed a motion to compel the production of “any and all incident reports, investigation reports, sentinel event reports, root cause analysis reports, Joint Commission reports, Medicare reports, Medicaid reports, peer review reports and reports of any nature relating to [the deceased patient].” The trial court granted this motion while shielding from discovery only those documents that had been “collected, maintained, or developed for the sole purpose of disclosure to a Patient Safety Organization pursuant to the [Act].” The Court of Appeals upheld this decision, ruling that the trial court properly applied the “sole purpose” standard laid down in Tibbs v. Bunnell, 448 S.W.3d 796 (Ky. 2014).

The Kentucky Supreme Court reversed these decisions. The Court ruled that “mandating invasion of the hospital’s patient safety evaluation system by trial courts every time there is a discovery dispute would discourage Kentucky’s healthcare providers from participating in the patient safety system.” For that reason, it held that the trial court should conduct “an in camera review of the documents in the provider’s patient safety evaluation system” to separate the privileged documents from the unprivileged ones. Id. at 766. The Court clarified in this connection that “permitting hospitals to place and leave otherwise discoverable information in the patient safety evaluation system in order to shield it from discovery is equally unacceptable and …. not in keeping with the Act.” Id.

Trap for the Unwary Works Again: Federal Healthcare and the Limitations Provision of the Federal Tort Claims Act

Phillips v. Generations Family Health Center, — Fed.Appx. — (2016), 2016 WL 5340278 (2d Cir. 2016)

The same story involving a federally qualified health center (FQHC) repeats itself again, again, and now again: see Phillips v. Generations Family Health Center, — Fed.Appx. —- (2016), 2016 WL 5340278 (2d Cir. 2016).

A patient from Connecticut receives medical treatment from a physician who works at a Connecticut-based facility known as Generations Family Health Center. This center is an FQHC and the physician is consequently deemed a federal employee pursuant to 42 U.S.C. § 233(g)-(n) (as explained, inter alia, in Phillips v. Generations Family Health Center, 723 F.3d 144, 145 (2d Cir. 2013)). The patient is unaware of this fact even though she could easily find it on the center’s website and in this database that belongs to the Department of Health and Human Services (DHHS). Subsequently, when the patient suspects that her physician committed malpractice, she and her attorney sue him in a Connecticut court because they believe him to be just a regular doctor from Connecticut. Alas, they could only sue the physician according to the Federal Tort Claims Act (FTCA) after going through a mandatory administrative claim process at DHHS. 28 U.S. Code §§ 1346 (b)(1), 2675. When they realize it, the suit becomes time-barred pursuant to the FTCA, 28 U.S. Code § 2401 (b) (“A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.”).

The patient moves her suit to a federal court and petitions for equitable tolling, now unquestionably available as per United States v. Wong, 35 S.Ct. 1625 (2015). The court, however, has no choice but deny this petition because the attorney who went to a state court in Connecticut on the patient’s behalf, instead of suing the physician in a federal court, did not act with due diligence. As federal courts have held on several occasions, such omissions preclude equitable tolling. See Sanchez v. United States, 740 F.3d 47 (1st Cir. 2014), and Arteaga v. United States, 711 F.3d 828 (7th Cir. 2013).

Under these dire circumstances, which I once described as a “trap for the unwary,” the patient’s only recourse is to sue her attorney for malpractice, as suggested in Arteaga at 834-35 (“It’s not asking too much of the medical malpractice bar to be aware of the existence of federally funded health centers that can be sued for malpractice only under the Federal Tort Claims Act … and if a member of that bar is not aware and misleads a client …, the lawyer may be liable for legal malpractice but the government can still invoke the statute of limitations.”).

In the case at bar, the Second Circuit confirmed this conclusion while clarifying (just in case…) that “We take no position as to whether such a suit would be successful here.” It’s about time that attorneys representing plaintiffs in medical malpractice suits check on their defendants.

Uncertain Causation and Lost Chance in Ohio

Woessner v. Toledo Hosp., 62 N.E.3d 204 (Ohio 6th Dist. 2016)

This case involved a patient who was born with a life-threatening medical condition. The patient arrived at a hospital’s emergency room complaining of severe abdominal pain associated with that condition. Instead of referring the patient to a liver transplant facility for specialized treatment, his doctors carried out a series of conservative procedures, which proved ineffectual. As a result, the patient developed complications from which he died. In the ensuing action for wrongful death, there was no genuine dispute over whether the doctors committed malpractice. Moreover, malpractice was assumed to be present in the doctors’ failure to ensure that the patient receives the specialized treatment he acutely needed. The defendants, however, claimed that the patient was doomed to die from his preexisting condition, for which they were not responsible. In tune with that claim, they argued that the plaintiffs failed to prove causation by a preponderance of the evidence.

According to the defendants, the plaintiffs could only sue them for the patient’s lost chances to survive, based on the Ohio precedent, Roberts v. Ohio Permanente Med. Group, Inc., 668 N.E.2d 480 (Ohio 1996) (that overruled Cooper v. Sisters of Charity of Cincinnati, Inc., 272 N.E.2d 97 (Ohio 1971)). The plaintiffs, for their part, invoked another precedent which held that “a plaintiff who may very well die of an underlying condition has a traditional malpractice case when discrete acts of negligence bring about the death, even though it is conceivable that death would have ensued anyway.” McMullen v. Ohio State Univ. Hosps., 725 N.E.2d 1117 (Ohio 2000); Segedy v. Cardiothoracic & Vascular Surgery of Akron, Inc., 915 N.E.2d 361 (Ohio 9th Dist. 2009).

The Court of Appeals for the 6th District of Ohio agreed with the defendant. Woessner v. Toledo Hosp., 62 N.E.3d 204 (Ohio 6th Dist. 2016). This decision proceeded from the premise that “Expert testimony with respect to proximate cause [more accurately described as “cause in fact” – A.S.] must be stated in terms of probability” (citing Stinson v. England, 633 N.E.2d 532 (Ohio 1994)). Another precedent relied upon by the court held that –

“In a medical malpractice action premised on a failure to properly diagnose or treat a medical condition which results in a patient’s death, the proper standard of proof on the issue of causation is whether with proper diagnosis and treatment the patient probably would have survived.” Miller v. Paulson, 646 N.E.2d 521 (Ohio 10th Dist.1994).” According to that precedent, “Probably is defined as ‘more likely than not’ or a greater than fifty percent chance.”

Based on these precedents, the court ruled that “Because of the complications involved with the [patient’s] underlying liver disease, expert testimony that the ischemia [and the doctors’ failure to properly address this condition – A.S.] was “the principal reason” the patient “wound up dying” is not sufficient.” The court held that the plaintiffs’ best evidence showed 40% chance of the patient’s survival and that this lost chance was their only plausible cause of action.