Medical Malpractice or General Negligence? A Redux

By Alex Stein

Whether a tort action sounds in “medical malpractice,” as opposed to “general negligence,” or vice versa, is often critical. Medical malpractice actions must satisfy special requirements that include shortened limitations periods, statutes of repose, expert affidavits, and merit certificates. Suits sounding in ordinary negligence need not satisfy those requirements. Filing and prosecuting those suits is therefore not as onerous and expensive as filing and prosecuting medical malpractice actions.  Read More

The “Emergency Room” Doctrine (a.k.a. Doctors’ Virtual Immunity Against Suit)

By Alex Stein

Under Georgia statute (that exists in other states as well), allegations of medical malpractice “arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department” must show “gross negligence” and be proven by “clear and convincing evidence.” OCGA § 51–1–29.5(c). Failure to prove the defendant’s gross negligence by clear and convincing evidence should result in a dismissal of the plaintiff’s suit.

In a very recent case, Johnson v. Omondi, — S.E.2d —-, 2013 WL 6009480 (Ga. 2013), the Supreme Court of Georgia interpreted and applied this provision.

Based on its prior decisions, the Court defined “gross negligence” as the defendant’s “failure to exercise even a slight degree of care.” The Court also ruled that in deciding a motion for summary judgment, the trial judge “must view the evidence presented through the prism of the substantive evidentiary burden”: clear and convincing evidence. Hence, it is the plaintiff’s burden to produce evidence upon which a reasonable jury could determine that the defendant completely failed to deliver the requisite medical care. Specifically, the plaintiff’s expert witness must give an unequivocal account of the defendant’s profound unprofessionalism. Absent such testimony, the trial judge should dismiss the suit summarily. Read More

Medical Malpractice Law as a Triumph of Procedure Over Substance

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). Read More

Governmental immunity for EMTs

By Alex Stein

According to the recent New York Court of Appeals’ decision—Applewhite v. Accuhealth, Inc., 2013 WL 3185185 (N.Y. 2013)—governmental immunity is a starting point for any inquiry into EMTs’ liability for malpractice.

The Court based this immunity on the famous “duty to all is duty to none” principle: in providing a vital emergency service to public in general, EMTs function in a governmental capacity and owe no duty to any specific individual. The Court explained that EMTs differ from the regular providers of medical care—doctors and nurses, who are subject to stringent licensing requirements and must have extensive educational and training credentials—in that they provide only emergency medical stabilization in Basic (as opposed to Advanced) Life Support ambulances. EMTs are also funded and remunerated differently from doctors and nurses: they operate on a limited municipal budget that depends on the taxpayers’ money and cannot afford malpractice payouts. Dilution of the EMTs’ budget might limit the municipal emergency response systems to mere transport service—a consequence that society can ill-afford. Read More