Bush v. United States — F.3d — 2015 WL 5472491 (5th Cir. 2015)
All expert requirements for medical malpractice actions (including merit certificates and affidavits) are categorized as “substantive” rather than “procedural” under both Erie (in diversity suits) and the Federal Tort Claims Act (FTCA). See here and here. The Fifth Circuit recently ruled in connection with a medical malpractice suit filed under FTCA that the “common knowledge” exception to the expert testimony requirement is “substantive” as well. Bush v. United States — F.3d —- 2015 WL 5472491 (5th Cir. 2015) (hereinafter: Bush). State law (Virginia law, in Bush) consequently trumps the federal law of evidence and procedure.
In Bush, whether a VA hospital nurse properly instructed the patient and his spouse on how to troubleshoot HeartMate II – a left ventricular assist device, implanted in the patient’s chest to prevent heart failure – was held to fall within “common knowledge” that requires no expert testimony.
This holding was made in connection with a wrongful death suit that complained about the device’s breakdown that led to the patient’s death. The Fifth Circuit grounded it on Beverly Enterprises–Virginia, Inc. v. Nichols, 441 S.E.2d 1 (Va. 1994) – a Virginia Supreme Court decision that extended the “common knowledge” exception to a case in which a healthcare administrator failed to share information necessary for appropriate care with primary caretakers. In Nichols, an elderly nursing-home resident suffering from Alzheimer’s choked to death after a nursing home employee, uninformed about her condition, delivered her a food tray without staying to help her eat. The Virginia Supreme Court ruled in connection with the ensuing wrongful-death action that the plaintiffs could establish their allegations without an expert witness because “the alleged act of negligence clearly lies within the range of the jury’s common knowledge and experience.”
The Fifth Circuit reasoned that Bush and Nichols are indistinguishable because the nurse in Bush “knew that a transient beep from the [device] could be a sign of a serious malfunction [but] failed to inform the Bushes about the risk indicated by such a sound.” “In these circumstances” – the court explained – “a layman could determine that [the nurse] breached the relevant standard of care.” The court further explained that Bush should be separated from suits for informed-consent violations that normally require an expert because here “the [patient’s] risk was inherent to an already-existing condition; [the patient] could [not] avoid the risk by refusing a future medical procedure.” (emphasis in original). As far as positive law is concerned, this decision seems to be right.
Importantly, the “common knowledge” exception must not be confused with claims that sound in ordinary or “common,” as opposed to medical, negligence. The “common knowledge” exception has nothing to do with suits sounding in ordinary negligence. Rather, it allows plaintiffs to prove medical malpractice without furnishing expert testimony. This special permission rests on procedural and evidentiary policies that vary from one jurisdiction to another. A requirement that plaintiffs accompany medical malpractice suits with a merit certificate (or affidavit) from a qualifying expert witness has two goals. The first goal is to promote accuracy in courts’ decisions. The second and equally important goal is to have the plaintiffs’ money speak on their behalf. By making a substantial upfront investment in her suit, the plaintiff reliably signals that her allegations are credible rather than frivolous: see here.
For these reasons, I am now revisiting the “substantive” categorization of the expert certificate requirements and the “common knowledge” exception in the context of medical malpractice suits under FTCA. My forthcoming work, Fixing the Federal Law of Medical Malpractice, will argue that these important rules should be informed by federal, rather than state, policies. Stay tuned! J