Medical Malpractice or Simple Negligence? A Redux

Littlepaige v. United States, 2013 WL 2501744 (4th Cir. 2013)

Veterans hospital in North Carolina admitted for treatment a Korean war veteran suffering from dementia. The patient was placed on a “falls precaution” that included special care and observation to prevent him from falling to the ground while hospitalized. Allegedly, the hospital’s staff have failed to implement this precaution. As a result, the patient fell on the floor and fractured his hip.

The suit making this allegation was filed to federal court under FTCA. Contrary to North Carolina law, the plaintiff (the patient’s widow) submitted no certification from a qualified medical expert. The plaintiff argued that she is exempt from the certification requirement because her suit sounds in general negligence, rather than medical malpractice, and/or pursuant to the res ipsa loquitur presumption.

Expectedly, this familiar recharacterization attempt did not work: the district court dismissed the suit.

On appeal, the Fourth Circuit delivered a well-reasoned majority decision that affirmed this result. The Circuit explained that, under North Carolina law, “Corporate negligence actions brought against hospitals which pertain to clinical patient care sound in medical malpractice, while such actions which arise out of policy, management, or administrative decisions sound in ordinary negligence” and that “Examples of policy, management, or administrative decisions include granting or continuing hospital privileges, failing to monitor or oversee performance of the physicians, credentialing, and failing to follow hospital policies”  (quoting Estate of Waters v. Jarman, 547 S.E.2d 142, 145 (N.C. Ct. App. 2001).  Based on this distinction, the Circuit properly classified the plaintiffs’ complaint as falling into the “clinical patient care” category that requires certification.

The Circuit also ruled that the res ipsa loquitur presumption cannot help the plaintiff because “North Carolina courts have … articulated a bright-line rule that a malpractice claim may not be brought on a theory of res ipsa loquitur unless the facts alleged are such that the negligence complained of must be of the nature that a jury—through common knowledge and experience—could infer.” Under this rule, “a plaintiff must allege facts from which a layperson could infer negligence by the defendant based on common knowledge and ordinary human experience.” The Circuit decided that the plaintiff’s suit did not satisfy this rule because “the facts alleged, even when construed liberally, are not such that a layperson could infer negligence on the part of the VA Hospital based on common knowledge.”

This decision aligns with my distinction between “treatment rules” and “setup rules”: see Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201, 1229-32 (2012). For a similar and more recent decision that applied the same distinction, see Estate of Ray ex rel. Ray v. Forgy, 2013 WL 1876755 (N.C. App. 2013). See also my discussion of this decision here.

The dissenting judge categorized the plaintiff’s suit as sounding in ordinary negligence, but I do not find his reasoning persuasive.