Tag: Medical Malpractice

Daubert as a Problem for Psychiatrists

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By Alex Stein

Most psychiatrists don’t know about it, but the switch from Frye to Daubert in the admission of expert testimony matters for them a lot. Psychiatrists treat patients with second-generation antipsychotics: Zyprexa, Risperdal, Clozaril, Seroquel, and similar drugs. A reputable, but still controversial, body of research links those drugs to tardive dyskinesia: a serious neurological disorder involving uncontrollable facial grimacing, repetitive tongue thrusting, and other untoward bodily movements. Under Frye, expert evidence can only be admitted upon showing that it received “standing and scientific recognition” from the relevant community of experts. Absence of a solid consensus disqualifies the evidence. Expert testimony linking tardive dyskinesia to antipsychotic drugs consequently would not be admissible under Frye. Under Daubert, however, it would go into evidence because its underlying research is grounded in scientific method and procedure that can be replicated, examined, and properly explained to the jury.

This is exactly what happened in a recent case decided by the United States District Court for the District of Columbia: Patteson v. Maloney— F.Supp.2d —-, 2013 WL 5133495 (D.D.C. 2013). Read More

Medical Malpractice Law as a Triumph of Procedure Over Substance

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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

Using Malpractice Laws to Sabotage Roe v. Wade

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By Alex Stein

This method was pioneered by South Dakota and Indiana that set up special “informed consent” requirements for abortion procedures, SDCL § 34-23A-10.1 and IC 16-34-2-1.1. Under these requirements, physicians must tell the pregnant woman (inter alia) that “the abortion will terminate the life of a whole, separate, unique, living human being” with whom she has a relationship that enjoys constitutional protection; that “human physical life begins when a human ovum is fertilized by a human sperm”; that the abortion might lead to depression, suicide ideation, and suicide; and that she should “view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone”; and also have the name, address, and telephone number of a nearby pregnancy help center.

The prize for innovation and ingenuity in this area, however, squarely belongs to Louisiana, whose special abortion-malpractice statute—Act 825, La. Rev. Stat. § 9:2800.12—was upheld this week in K.P. v. LeBlanc, — F.3d —-, 2013 WL 4746488 (5th Cir. 2013).  Act 825 complements Louisiana’s “Woman’s Right to Know Act,” La. Rev. Stat. § 40:1299.35.6, that established “informed consent” requirements for abortion similar to those of South Dakota and Indiana. Read More

Bypassing Damage Caps

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By Alex Stein

Damage caps are widespread. A typical cap provision precludes medical malpractice victims from recovering more than a specified sum for pain, suffering and other noneconomic harms. These caps vary between $250,000 (as in California that might soon increase its cap by a referendum) and a $1,500,000-$500,000 scale (as in Florida). Some state supreme courts (e.g., Georgia, Illinois, and Wisconsin) voided the caps as unconstitutional, but many others (e.g., Alaska, California, Louisiana, Mississippi, Nebraska, Ohio and West Virginia) have upheld their constitutionality. In a few states (e.g., Florida and Texas), statutory caps had to be corrected to secure their alignment with state constitutions.

Damage caps are controversial.  Some people believe that they help contain the costs and secure the affordability of medical care. Others believe that caps shortchange malpractice victims and weaken the deterrence of malpractitioners. People falling into the first group generally support tort reforms. People falling into the second group ardently oppose those reforms. For my middle-way position—that supports procedural tort reforms that block away unsubstantiated malpractice suits, while opposing damage caps and other substantive tort reforms—see here.

The plaintiffs bar expectedly tries to bypass the caps: see Catherine Sharkey’s important article that identifies the “crossover” dynamic: Facing caps on their clients’ noneconomic recovery, patients’ attorneys boost and vigorously pursue their clients’ claims for economic damages with the jurors’ blessing and approval.

Another, relatively recent, way of bypassing the cap is splitting the “occurrence” or “event” of medical malpractice into several events or occurrences. When successful, this strategy doubles, or more than doubles, the recoverable compensation amount. Read More

Agreements to Arbitrate Medical Malpractice Claims: Positive Law

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By Alex Stein

Can a healthcare provider make an arbitration agreement with patients for resolving future malpractice disputes?

This question has no straightforward answer. As an initial matter, one needs to separate individual arbitration agreements between doctors and patients from group health plans for employees. A group health plan that obligates employees to arbitrate medical malpractice claims is valid and enforceable: see Madden v. Kaiser Foundation Hospital, 552 P.2d 1178 (Cal. 1976). The plan’s designers—employers on one side and MCOs/HMOs on the other side—have roughly equal bargaining powers and cannot easily take advantage of one another. Their preference for arbitration is part of a well thought-through deal that includes an attractively priced health benefits package for employees (such deals do not always promote the employees’ best interest, but this is a story for another occasion: see here).

With individual arbitration agreements things are markedly different. Read More

NPDB and Due Process

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By Alex Stein

An aggrieved patient files medical malpractice suit against a hospital in which he was treated. The hospital and the patient subsequently settle the suit. Their settlement agreement states that the hospital settles the suit “for the benefit of” a physician who treated the patient. Because the patient did not sue the physician, the physician was not a party to this agreement. Pursuant to the Healthcare Quality Improvement Act of 1986 (HCQIA), the hospital reports the agreement to the National Practitioner Data Bank (NPDB). Prior to filing this report, the hospital allows the physician to provide her account of the relevant events. The physician demands a process within which she could demonstrate that her treatment of the patient was faultless, but the hospital denies this demand.

Can the physician challenge the report? Read More

The Laches Defense not Available in Medical Malpractice Actions

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By Alex Stein

The DC Court of Appeals has ruled last week that the laches defense does not apply in actions for medical malpractice: Naccache v. Taylor, — A.3d —-, 2013 WL 3820942 (D.C. 2013). The Court reasoned that laches is only available in equity proceedings but not in actions at law. For actions at law, held the Court, the applicable time bars are set by the statute of limitations. This statute, the Court explained, accounts for all relevant tradeoffs between plaintiffs’ and defendants’ interests. Hence, “To import laches as a defense to actions at law would [improperly] pit the legislative value judgment embodied in a statute of limitations … against the equitable determinations of individual judges.” In making this ruling, the Court also took notice of the fact that forty-eight states bar laches as a defense for actions at law.

This ruling appears impeccable, but it has a wrinkle. Read More

The Merit of Merit Affidavits

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By Alex Stein

Similar to many other states, Oklahoma has a statute prescribing that suits alleging medical malpractice must be verified by an affidavit from a qualified medical expert. Suits unaccompanied by a proper affidavit must be stricken out. This statute is part of what I call – and commend – as a procedural tort reform: it allows courts to get rid of unmeritorious suits against doctors and hospitals early in the process. The statute, however, recently became a dead letter after being pronounced unconstitutional by Oklahoma’s Supreme Court for the second time in a row (Wall v. Marouk, — P.3d —-, 2013 WL 2407160 (Okla. 2013)). Evidently, this Court does not view merit affidavits as favorably as I do.  Let’s see why. Read More

Proximate Cause in Georgia

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By Alex Stein

Two days ago, Georgia’s Court of Appeals decided Georgia Clinic v. Stout, — S.E.2d —-, 2013 WL 3497703 (Ga. App. 2013).

This tragic case features an elderly patient with an arthritic knee. Her doctors injected that knee with medication drawn from a multi-dose vial. They did so at their clinic under non-sterile conditions that included poor infection controls, failure to maintain sterile field, and poor hand-washing facilities (the clinic had no sinks and alcohol hand cleaners in the examination rooms). As a result, the patient’s knee was infected with methicillin-sensitive staphylococcus aureus (“MSSA”). Four other patients of the same clinic were also infected with MSSA from the same multi-dose vial.

The patient developed excruciating pain in her knee and became depressed. The doctors treated her for the pain in the knee but neglected the depression. They failed to refer the patient to a psychiatrist. After a short period of time, the patient committed suicide by jumping from the window of her 14th floor apartment. She left behind a suicide note saying that she can’t take her pain anymore and prefers to die. Read More

A New Trend? Hospital Successfully Sues its Patient’s Attorneys for Filing a Vexatious Malpractice Suit

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By Alex Stein

Connecticut’s Appellate Court ruled in yesterday’s decision that hospitals and doctors can successfully sue their patients’ attorneys for filing a vexatious malpractice suit. The Court also ruled that the trial judge’s decision that the patient’s suit was vexatious will often create an estoppel against the attorney. The attorney will consequently be precluded from contesting that decision. The only issue will then be the amount of damages—double or treble—that the attorney and her firm will be obligated to pay the hospital or the doctor.  See Charlotte Hungerford Hospital v. Creed — A.3d —-, 2013 WL 3378824 (Conn. App. 2013).

Whether this is going to be a trend in our medical malpractice law remains to be seen. In the meantime, I provide the details of that important decision. Read More