Tag: Causation

The Timeline Approach to Medical Malpractice Defenses

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By Alex Stein

California’s Court of Appeal has recently delivered a first-impression decision on the conditions under which a patient’s own negligence can be asserted as a defense against medical malpractice allegations. Harb v. City of Bakersfield, — Cal.Rptr.3d —- (Cal.App. 5th Dist. 2015) 2015 WL 302291.  Among the materials cited by this decision was my article, Toward a Theory of Medical Malpractice, 97 Iowa Law Review 1201 (2012). The court used my “timeline approach” to separate the patient’s pre-treatment negligence, upon which providers of substandard medical care cannot rely, from self-injurious behaviors that occur during and after treatment and that can properly mitigate – and in extreme cases, even eliminate – the legal consequences of medical malpractice. Read More

Organ Transplant Malpractice and the “Proximate Cause”

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By Alex Stein

Everyone interested in that area must read Shierts v. University of Minnesota Physicians, — N.W.2d — (Minn.App.2014), 2014 WL 7344014.

This important – yet, unreported – decision deals with a medical-malpractice action arising out of the patient’s death from cancer contracted from a donated pancreas. The trial court dismissed the action summarily based on the “proximate cause” doctrine, and the plaintiff appealed against that dismissal. Read More

“Proximate Cause” and the Patient Suicide Problem

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By Alex Stein

This difficult problem and the underlying human tragedy have recently been adjudicated by the Supreme Court of Mississippi in Truddle v. Baptist Memorial Hosp.-Desoto, Inc., — So.3d —- (Miss. 2014).

A hospital patient suffering from a number of illnesses became agitated and aggressive. He took the IV out of his arm and attempted to leave the hospital. When nurses stopped him and forced him back to his room, he hallucinated that someone was trying to rape him. Despite these psychiatric symptoms, the patient was discharged and treated as an outpatient. During his outpatient treatment, he complained to his doctor that the medications he was taking “make him crazy.” Six days after his release from the hospital and two days after his last outpatient appointment, the patient barricaded himself in his bedroom and committed suicide.  Read More

Lost Chances to Recover: An Elaboration

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By Alex Stein

An important development of the lost-chance doctrine recently took place in Rash v. Providence Health & Services, — P.3d —- (Wash.App.Div.3 2014).

An 82-year old patient with a critical heart condition was hospitalized to undergo surgery. The patient’s heart condition made her death inevitable, but she managed to prolong her life with the help of medications. The hospital negligently failed to give the patient blood pressure medications. As a result, the patient suffered a series of strokes from which she died. The hospital’s negligence thus accelerated the patient’s demise.

The patient’s heirs sued the hospital for medical malpractice. The patient’s preexisting condition doomed the plaintiffs’ claim that the hospital’s negligence was the but-for cause of her death. The plaintiffs consequently demanded compensation for the lost chance of  better outcome, pursuant to Herskovits v. Grp. Health Coop. of Puget Sound, 664 P.2d 474 (Wash. 1983); and Mohr, 262 P.3d 490 (Wash. 2011). Read More

The Law of Breast Cancer

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By Alex Stein

During an annual mammogram screening for breast cancer, the radiologist detects a nodule in the patient’s breast. The nodule is large enough to require a biopsy, but the radiologist prefers to schedule a follow-up appointment with the patient for six months later. This appointment reveals that the nodule had grown and the radiologist refers the patient to a biopsy. The biopsy is carried out four days later by a surgeon. The surgeon determines that the nodule was malignant and diagnoses the patient with breast cancer. The patient consults two breast cancer specialists who unanimously recommend mastectomy and chemotherapy. These procedures and the ancillary treatments prove successful. They make the patient cancer free in one year. The chemotherapy caused the patient to experience hair loss, pain, nausea, headaches and fatigue, but all these symptoms are now gone as well.

The patient is happy with the result but is still upset. She believes that a timely discovery of her cancer would have given her a far less painful and less disfiguring treatment option: lumpectomy followed by radiation therapy.

Can the patient successfully sue the negligent radiologist? Read More

Mental Therapist’s Duty to Prevent Patient’s Crime

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By Alex Stein

A clinical social worker hears from his patient about the patient’s interest in child pornography, but does nothing to solve the problem. Later on, the police raids the patient’s house to find evidence that he illegally downloaded, viewed and possessed child pornography. The patient now faces criminal charges.

Can he sue the social worker for malpractice? Would a similar suit be available against a psychiatrist? Read More

Medical Malpractice Causation Revisited

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By Alex Stein

Evidence law requires the plaintiff to prove every element of her suit by a preponderance of the evidence.  Under this requirement, an aggrieved patient will not succeed in her suit against the doctor unless she adduces persuasive evidence of causation. This evidence must demonstrate that it is more probable than not that the doctor’s malpractice caused the patient’s damage. Satisfying this requirement is difficult because doctors can virtually always blame the patient’s damage on her preexisting medical condition. This factor makes causation in a medical malpractice case an extremely complex issue. In the absence of special legal rules, this issue could present an insurmountable evidentiary obstacle for many wronged patients. Courts responded to this problem by relaxing the causation requirements for medical malpractice suits. They have developed what I call the “relaxed causation” doctrine: see Toward a Theory of Medical Malpractice, 97 Iowa L. Rev. 1201, 1216-26 (2012). The doctrine’s idea is to close the exit from liability for negligent doctors: these doctors should not go scot free because of the patient’s preexisting condition that complicates the causation issue.

This doctrine was at play in a recent case Klein v. Aronchick, — A.3d —-, 2014 WL 46648 (Pa. Super. 2014). Read More

Anti-Abortion Practices at Catholic Hospitals as Medical Malpractice

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By Alex Stein

The New York Times has recently reported about a suit filed by ACLU against the United States Conference of Catholic Bishops for requiring Catholic hospitals to avoid abortion “even when doing so places a woman’s health or life at risk.” The suit unfolds a disturbing story about an 18-week pregnant woman who rushed to the Mercy Health Partners in Muskegon, Michigan – the only one in her county – after breaking water. According to the suit, the plaintiff’s pregnancy was not viable but posed significant risks to her health. Instead of inducing labor or surgically removing the fetus to reduce the plaintiff’s chances of infection, the doctors at Mercy Health sent her home. The doctors also did not tell the plaintiff that her pregnancy is not viable and that it poses risk to her health. The plaintiff returned to the hospital next morning and was sent home again (!!) despite her bleeding and pain. On her third visit to the hospital – with severe pain and fever – the plaintiff miscarried and her fetus died shortly thereafter.

Described by the NYT as opening “a new front in the clash over religious rights and medical care,” the suit was filed in federal court in Michigan. Read More

Compensation for a Patient’s Lost Chances to Recover from Illness: A Redux

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By Alex Stein

Three days ago, Washington’s Court of Appeals issued a decision explaining the state’s Supreme Court precedents that entitle patients wronged by their doctors to recover compensation for their lost chances to recover from illness: Herskovits v. Group Health Cooperative of Puget Sound, 664 P.2d 474 (Wash. 1983), and Mohr v. Grantham, 262 P.3d 490 (Wash. 2011). The Court of Appeals ruled that this compensation entitlement is limited to cases in which the injured patient cannot prove causation by a preponderance of the evidence due to her preexisting condition. The Court explained that when a doctor’s malpractice reduces the patient’s chances to recover by more than 50%, the patient would be able to satisfy the preponderance requirement and recover full compensation. The Estate of Ruth M. Dormaier v. Columbia Basin Anesthesia, P.L.L.C., — P.3d —-, 2013 WL 6037098 (Wash.App. Div. 3 2013).

This decision also has continued the prevalent, but mistaken, “arithmetical approach” to lost chances. Under this approach, when a doctor’s malpractice reduces his patient’s chances to recover from illness from 75% to 25%, and the patient ultimately does not recover, the doctor must pay the patient 50% (75%-25%) of her damage.

This approach is mistaken for the following reasons: Read More