By Alex Stein
When Sir Henry Maine wrote (here, on page 389) that early substantive law was “secreted in the interstices of procedure,” he did not know that he was coining a long-lasting adage. Even less did he anticipate that this adage will aptly describe our today’s system of medical malpractice.
This system normally requires plaintiffs to accompany their suits with an affidavit or certificate of merit from an eligible medical expert. The expert must show that s/he practices medicine in the same field or specialty as the defendant doctor and is familiar with the standards, protocols and procedures followed by physicians working in that field or specialty (in some jurisdictions, the expert only needs to satisfy the familiarity condition). The expert also must identify the malpractice: the defendant’ deviation from one of those standards, protocols or procedures. Finally, the expert must certify that there is a reasonable medical possibility that the defendant’s malpractice has injured the plaintiff or aggravated her condition. When a plaintiff fails to submit an affidavit that satisfies this checklist requirement, the court must dismiss her suit. The checklist requirement thus creates a “safe harbor” for doctors who go by the rules and blocks away unmeritorious suits. For details, see here.
The Supreme Court of Idaho has recently taken the checklist requirement to its extreme. This unfortunate development took place in Hall v. Rocky Mountain Emergency Physicians,— P.3d —-, 2013 WL 4768310 (Idaho 2013).
This case involved a patient who came to be treated for a severe headache at a hospital’s emergency room, where she was examined by a doctor. The patient alleged that the doctor “without consent … lifted my bra up and over, exposing my left breast, looked under my gown and brushed his hand over my left nipple [and] then continued with the stethoscope while resting his hand on my left breast for approximately 15–20 seconds, while claiming to check my heartbeat.”
This accusation strikes me as deserving trial. If it is true, the plaintiff should recover compensation. If it is false, the plaintiff’s suit should be dismissed with costs. And if the factfinder cannot determine whether the accusation is more likely to be true than false, the defendant should prevail as well because the burden of proof is on the plaintiff.
The trial court, however, saw things differently. The plaintiff’s suit alleged that the doctor committed battery, intentional infliction of emotional distress, and invasion of privacy. These allegations, nonetheless, could still be categorized as “medical malpractice.” Presumably for that reason, the plaintiff decided to play safe by satisfying the checklist requirement. She submitted to court an expert affidavit that described unconsented exposure and touching of a patient’s breasts as medically improper. The expert, however, did not mention how emergency room physicians are supposed to check the heartbeat of a female patient. Worse yet, the expert also failed to describe the customary practice of the emergency room in which the plaintiff was treated and had to take “as is” under the “emergency rule.” For these reasons, the court dismissed the plaintiff’s suit summarily.
The Idaho Supreme Court found no flaws in that decision and upheld the dismissal. Remarkably, it mentioned Idaho’s statutory prohibition of sexual exploitation by a medical care provider, I.C. § 18-919. The plaintiff’s allegations against the doctor squarely aligned with that statute. The statute could thus be considered as setting the requisite standard of conduct for doctors. Proof of that standard required no expert witnesses. Alas, the plaintiff did not rely on I.C. § 18-919 throughout the court proceedings. Instead, she relied on common sense. Worse yet, by filing a medical expert’s affidavit, the plaintiff made her suit sound in medical malpractice. For that reason, the Court decided to disregard the sexual exploitation statute for purposes of its decision.
The way this case was decided brings to mind the system of writs, aptly described by Maine’s quote. Conspicuously missing were the rules of equity that authorized judges to cut through procedural forms and get to the substance of the case.