By Alex Stein
A team of doctors employed by the same hospital had failed to properly monitor a patient after his heart surgery in order to rule out a well-known neurological complication. The patient subsequently developed an irreversible neurological disorder, and a suit ensued.
The patient’s expert identified the team’s omission as malpractice. However, he was unable to attribute the omission to any specific member of the doctors’ team. Under the common law doctrine of vicarious liability, because the omission could be attributed to the team as a whole, the patient could still win his suit against the hospital. This doctrine holds that a hospital employing a team of doctors assumes vicarious liability for the team’s malpractice even when there is no way to single out the defaulting team member.
Washington’s appellate court, however, has decided that this doctrine was inapplicable because medical malpractice is a statutory, rather than common law, tort under Washington law. Grove v. Peace Health St. Joseph Hospital, — P.3d —-, 2013 WL 5786888 (Wash.App. Div. 1 2013).
Washington’s statute defines medical malpractice as a physician’s failure “to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs, in the state of Washington, acting in the same or similar circumstances.” According to the Court, this provision requires an aggrieved patient to produce expert testimony that identifies an individual physician’s malpractice as a cause of her injury. In the case at bar, the patient “did not present evidence that but for any one of those particular individuals’ failure to adhere to the standard of care, he would not have been injured.” For that reason, the Court held that the patient “failed to prove proximate cause” and affirmed the lower court’s JNOV in the hospital’s favor.
The Court’s reasoning is perplexing. First, it is not clear to me why it chose to describe the “hole” in the patient’s case as a failure to prove “proximate cause.” What the patient failed to prove was the tortfeasor’s individual identity, rather than proximate cause. Second and most important, why care which doctor was individually responsible for the failure to properly monitor the patient, given that the entire team of doctors—that included the doctor/s who made the mistake—worked for the hospital? In short, I do not see the connection between Washington’s definition of “medical malpractice” and the Court’s insistence on individualized evidence of wrongdoing.
Intentionally or not, the Court’s decision has created a normatively indefensible gap between malpractice by commission and malpractice by omission. In a case in which the alleged teamwork error occurs during surgery and thus constitutes an active or “affirmative” misconduct, the patient’s suit against the hospital would be allowed to proceed on the res ipsa loquitur theory (see, e.g., States v. Lourdes Hospital, 792 N.E.2d 151 (N.Y. 2003)). The res ipsa presumption allows a plaintiff to move her case to the jury without adducing individualized evidence of malpractice. In Grove, the patient could not take advantage of the res ipsa presumption (generally applicable under Washington law: see Ripley v. Lanzer, 215 P.3d 1020 (Wash.App. Div. 1 2009)) because what he complained about was an omission: his doctors’ failure to properly monitor his condition. Courts, however, have no good reason for being more meticulous with doctors’ omissions.
A patient injured by his doctors’ teamwork will do well to explore two alternative ways of suing the hospital:
A. Corporate negligence. The hospital might be directly liable for failing to establish a protocol with an appropriate checklist for doctors’ post-surgical monitoring of patients.
B. Spoliation. The hospital might be accountable for missing and non-compiled records documenting the work done by each individual member of the doctors’ team. Absence of the required records is a reason for shifting the burden of proof to the hospital. The hospital would then have to prove that none of its doctors acted negligently toward the patient.
Nice timely post, Alex. I think I can make sense out of the court saying that the plaintiff failed to prove proximate cause. If you come to court with an injury and a defendant, the cause-in-fact part of proximate cause requires linking up the injury with the defendant. Thus a failure of identification can be a failure of causation. Still, I agree that vicarious liability and/or res ipsa should fill the gap in cases like this.
I’m also not sure why, on these facts, the plaintiff couldn’t get his expert to say that ALL the involved doctors breached and thus each one was a but-for cause of the injury. For that purpose, it may have been better litigation strategy to just sue ONE of them, and then force that doctor to try to allocate fault to third parties (i.e., proving the negligence of his colleagues), which he would be reticent to do. I’ve used this strategy successfully against product manufacturers.
Many thanks, Chris! What you’re saying is exactly right. The court indeed meant to say that the identification failure is a failure of causation. There is no better way to put it. But assuming that the team had 5 doctors, why not allow the plaintiff to establish that his injury was caused by one of those five doctors, given that the hospital is vicariously liable under either scenario? This reminds me of an old English case, Rhesa, where the House of Lords didn’t allow the shipowner to recover insurance money under a “perils of the seas” policy because he could only prove that his ship sunk because of some unidentified peril of the seas (without identifying that specific peril by name or by nature). I wrote a piece criticizing that decision: my argument was that the “perils of the seas” policy covered the “unidentifiable peril” contingency as well. By the same token, the hospital should have been held liable for malpractice of its employee even when s/he cannot be identified. But you seem to agree with that, so I don’t think that we have a real disagreement here.
Nice timely post, Alex. I think I can make sense out of the court saying that the plaintiff failed to prove proximate cause. If you come to court with an injury and a defendant, the cause-in-fact part of proximate cause requires linking up the injury with the defendant. Thus a failure of identification can be a failure of causation. Still, I agree that vicarious liability and/or res ipsa should fill the gap in cases like this.
I’m also not sure why, on these facts, the plaintiff couldn’t get his expert to say that ALL the involved doctors breached and thus each one was a but-for cause of the injury. For that purpose, it may have been better litigation strategy to just sue ONE of them, and then force that doctor to try to allocate fault to third parties (i.e., proving the negligence of his colleagues), which he would be reticent to do. I’ve used this strategy successfully against product manufacturers.
Many thanks, Chris! What you’re saying is exactly right. The court indeed meant to say that the identification failure is a failure of causation. There is no better way to put it. But assuming that the team had 5 doctors, why not allow the plaintiff to establish that his injury was caused by one of those five doctors, given that the hospital is vicariously liable under either scenario? This reminds me of an old English case, Rhesa, where the House of Lords didn’t allow the shipowner to recover insurance money under a “perils of the seas” policy because he could only prove that his ship sunk because of some unidentified peril of the seas (without identifying that specific peril by name or by nature). I wrote a piece criticizing that decision: my argument was that the “perils of the seas” policy covered the “unidentifiable peril” contingency as well. By the same token, the hospital should have been held liable for malpractice of its employee even when s/he cannot be identified. But you seem to agree with that, so I don’t think that we have a real disagreement here.
So the question here to me seems: did the patient’s attorney not sue for corporate negligence in the first place or was he/she limited in the line of suit? And can he/she still due that (provided the patient has the funds …) or is that running against statute of limitation eventually?
Based on what I saw in the court’s decision, the plaintiff made no allegations of corporate negligence, but I don’t know it for certain. In Washington, all medical malpractice actions must be filed within 3 years from the accrual of the cause of action (this window can be expanded on various equitable grounds to up to eight years from the day of the alleged malpractice). So again, I don’t have all the dates and other information I need in order to tell whether the expiration kicked in.