hamilton medical negligence lawyers

41 ALI-ABA Course of Study Litigating Medical Malpractice Claims September 28 - 30, 2006 Boston, Massachusetts Developments in the Law: Liability Theories and Burden of Proof By Professor Frank M. McClellan James E. Beasley School of Law Temple University Philadelphia, Pennsylvania . 42 2 43 ALI-ABA MEDICAL MALPRACTICE LITIGATION DEVELOPMENTS IN THE LAW: LIABILITY THEORIES AND BURDEN OF PROOF Frank M. McClellan THEORIES OF LIABILITY Breach of Contract Misrepresentation Strict Liability Infliction of Emotional Distress Informed Consent Negligence Wrongful Birth and Wrongful Life SELECTED CASES FOR DISCUSSION IN SEPTEMBER 2006 COURSE Duty of Plaintiff’s Counsel to Retain Expert To Support Theory of Case See Rorrer v. Cooke, 313 N.C. 338, 329 S.E. 2d 355 (1985) (holding that an attorney’s affidavit that plaintiff’s former medical malpractice attorney breached his duty in representing plaintiff by failing to retain expert testimony that enthusiastically supported plaintiff’s medical theory of the case failed to support plaintiff’s legal malpractice claim against her attorney; in granting summary judgment in favor of plaintiff’s former attorney court emphasizes that the attorney criticizing the handling of the case relied on what he would do, and not what the standard of care required ) Breach of Contract Monroe v. Long Island College Hosp., 443 N.Y.S. 2d 433 (1981) In dismissing a breach of contract claim brought against a hospital and physician for damage 1 44 caused by an allergic reaction to a dye, the court stated the generally accepted rule: “The law is clear that a breach of contract claim arising out of the rendition of medical services by a physician will withstand a test to its legal sufficiency only where it is based upon an express special promise to effect a cure or to accomplish some definite result.” For cases finding a valid breach of contract claim see e.g.: Sullivan v. O’Connor, 296 N.E.2d 183 (Mass. 1973)(holding that a professional entertainer asserted a valid breach of contract claim against a surgeon who promised to improve her appearance through an operation on her nose, but instead made her appearance worse; she was entitled to recover for out of pocket expenses, disfigurement, pain and suffering and mental distress.) Bollino v. Hitzig, 2001 N.Y. Slip Op. 40593(U), 2001 WL 1729706 (N.Y. Supp.)(plaintiff may pursue breach of contract action for botched hair transplant where he was induced to undergo the surgery by representations made in an infomercial, brochures and in person, that later proved to be false as to his appearance and the maintenance of his hair; plaintiff had to undergo three more surgeries) Intentional Infliction of Emotional Distress Lucchesi v. Frederic N. Stimmell, M.D., Ltd., 149 Ariz. 76, 716 P.2d 1013 (Ariz. 1986) (obstetrical specialist who failed to attend delivery of high risk baby after promising to attend subject to tort claim of intentional infliction of emotional distress where baby was decapitated by residents during the course of delivery due to their inexperience of delivering a baby who presented in a double breech position; fact that baby was not viable due to prematurity did not preclude the claim for emotional distress of mother) Taylor v. Albert Einstein Med. Ctr., 723 A.2d 1027 (Pa. Super. Ct. 1998), reversed in part, 754 A.2d 650 (2000)(although mother had a right to limit surgery to be performed on her minor daughter to particular doctor the evidence insufficient for intentional infliction of emotional distress claim against doctor who knowingly performed the surgery without her permission, even though child died during the course of the surgery) Negligence: Standard of Care: Incollingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) Child died from aplastic anemia caused by an antibiotic that Plaintiff claimed was negligently prescribed for minor infections by two physicians. Custom does not control if defendant knows better. Must give due regard to advanced state of medical knowledge Helling v. Carey, 83 Wn. 2d 514, 519 P.2d 981 (1974) P sustained blindness from glaucoma while under the care of defendant ophthalmologists Negligence as a matter of law 2 45 We all do it this way; court may still find negligence Balancing Risks and Benefits Court ruled that defendants were negligent as a matter of law for not performing a simple pressure test that could have detected the glaucoma in time to save her sight Clark v. Gibbons, 426 P.2d 535 (1967) Inadequate Anesthesia Premature Termination of Surgery Duty of surgeon and anesthesiologist to communicate with each other Res Ipsa Loquitur found applicable Gala v. Hamilton, 715 A.2d 1108 (Pa. 1998) Medical literature not a prerequisite to jury instruction on TWO SCHOOLS OF THOUGHT Two Schools of Thought Doctrine: Choma v. Iyer, 871 A.2d 238 (Pa. Super. Ct. 2005) Court ruled that in order for an instruction to be given, the experts must differ on the treatment given, not on the diagnosis itself. Sinclair by Sinclair v. Block, 633 A.2d 1137 (1993). Two schools of thought doctrine is not applicable where the physician breached the standard of care. Di Filippo v. Preston, 173 A.2d 333, 337 (1961) In Delaware, there are no explicit “two schools of thought doctrine” jury instructions; however, this court determined that if there is a difference of opinion as to which technique is preferable, and both are found acceptable, a physician’s choice of one of the two acceptable techniques is not negligence. Evidence Based Medicine and Clinical Practice Guidelines Hinlicky v. Dreyfuss, 6 N.Y. 3d 636, 815 N.Y.S. 2d 908 (2006) (affirming the admission of a flow chart published and endorsed by the American Heart association that anesthesiologist said he relied on in making the decision not to require a diagnostic test prior to surgery; court allows admission as demonstrative evidence and presents a good discussion of the debate over the impact of evidence based medicine on the standard of care) Causation: Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); P died of heart attack after being sent home from emergency room without being given an ekg test because machine was not working; court held that proof of Increased risk of harm allows jury to find causation in a failure to act case. 3 46 Smith v. Department of Health & Hosps., 676 So. 2d 543 (La. 1996) Failure to detect cancer Measuring loss of chance Mathematical Approach adopted by some courts Smith Court adopts Distinct Injury Approach Informed Consent: Canterbury v. Spence, 464 F.2d 772 (1972) cert. denied, 490 U.S. 1064 Court rules: negligence theory governs informed consent claims; Prudent patient standard defines scope of duty to disclose, not prudent doctor standard Need expert to explain risks, benefits and alternatives, but not duty to disclose Truman v. Thomas, 27 Cal. 3d 285, 165 Cal. Rptr. 308 611 P.2d 902(1980); Doctor has duty to be sure that patient declining pap smear is making an Informed Refusal Taylor v. Albert Einstein Med. Ctr., 723 A.2d 1027 (Pa. Super. Ct. 1998), reversed in part, 754 A. 2d 650 (2000) Right to limit surgery to particular doctor; P has valid battery claim Evidence insufficient for intentional infliction of emotional distress claim Johnson by Adler v. Kokemoor, 545 N.W.2d 495 (Wis. 1996) Duty to disclose experience where level of experience has material effect on surgical outcome Hidding v. Williams, 578 So. 2d 1192 (La.App. 5 Cir. 1991) Signature on Form does not preclude informed consent claim where: patient has a 5th grade education Loss of bladder and bowel function is material risk Form: “loss of bodily function” does not disclose risk to bladder and bowel Doctor is Alcoholic Wrongful Birth And Wrongful Life Berman v. Allan, 404 A.2d 8 (1979) (court allows wrongful birth claim for parents but not wrongful life claim of child) Hospital Corporate Liability: Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (1965) Hospital is more than a building; it is a health care provider with duty to act reasonably Accreditation and by-laws as evidence of standard of care 4 47 Independent duty of hospital gives rise to corporate liability Johnson v. Misericordia Community Hospital, 99 Wis.2d 708, 301 N.W. 2d 156 (Wis. 1980); Hospital has a duty to investigate credentials of Staff Physician Browning v. Burt, 66 Ohio St. 3d 544, 613 66 Ohio SW. 3d 544 (1993); Surgeon known as “the Love doctor” performing unorthodox and unapproved procedures Tortious conduct discovered years later Statute of limitations tolled Hospital had duty to protect patients that was not fulfilled by having patients sign a from acknowledging that hospital did not approve of proposed surgical procedure Washington v. Washington Hosp. Center, 579 A.2d 177 (D.C. 1990) Duty to acquire equipment (co2 monitor) for use in administration of general anesthetic Patient suffered brain damage during surgical procedure due to misplacement of endotracheal tube Whittington v. Episcopal Hosp., 768 A.2d 1144 (Pa. Super. Ct. 2001 Patient who died from pregnancy induced hypertension had valid claim against the hospital based on: Duty to monitor staff–nurses and residents Duty to monitor Patient Duty to monitor Attending Physicians Liability for Adverse Reactions To Drugs: Incollinqo v. Ewinq, supra.; Duty of physician to exercise best judgment What others do is evidence of standard of care but not conclusive Dilution of Warnings in Package Insert Multiple Partly Liability Stanton v. Astra Pharmaceutical Products, Inc., 718 F.2d 553 (3d Cir.Pa. 1983); Child sustained brain damage due to adverse reaction to local anesthetic Violation of Food & Drug Act may subject drug company to tort claim for: Negligence per se and Strict Liability Perez v. Wyeth Lab., 161 N.J. 1, 734 A.2d 1245 (1999) Drug manufacturer directly marketed Norplant to women(a birth control device implanted in a woman by her physician) Court held that direct marketing to consumer eliminates learned intermediary defense 5 48 Preemption of Inadequate Warning Claims: See Thomas Ginsberg, “Litigation Inoculation”, Philadelphia Inquirer, July 9, 2006 (available at www.philly.com/mld/inquirer/) (discussing recent and ongoing cases where courts have split on whether approval of drug labeling by the FDA preempts inadequate warning claims under state tort law based on a preamble statement of the FDA in the FDA’s new drug labeling regulations that took effect on June 30, 2006) Qualifications of an Expert Witness and Admissibility of Testimony: Liberal common law standard: McDaniel v. Merck, Sharp & Dohme, 533 A.2d 436 (1987) Reasonable pretension to specialized knowledge is standard for qualification of expert Trial court erred in limiting experts’ testimony to matters within their particular specialty where knowledge, practices and responsibilities of specialists overlap Trend toward more stringent standards Schneider v. Fried, 320 F. 3d 396 (3d Cir. 2003)(allowing invasive cardiologist to testify as to standard of care required of interventionist cardiologist on basis of his extensive experience as an invasive cardiologist and exposure to practices of interventional cardiologists; also applying Daubert standards and finding that expert’s testimony was sufficiently reliable in light of the literature and his extensive experience) Daubert and Frye progeny Daubert v Merrell Dow Pharms. 509 U.S. 579 (1993) ( Rule 702 of Federal Rules of Evidence establishes judge as gatekeeper to determine the admissibility of scientific evidence; judge should determine admissibility based on specific criteria aimed at assessing the reliability and trustworthiness of the proffered scientific opinion) Frye v. United States 293 F. 1013 (D.C. Cir. 1923)(theory and method used by expert to reach opinion must be generally accepted within the scientific community) Trach v. Fellin, 817 A.2d 1102, 2003 WL 282804 (Pa. Super. Ct. 2003) (Frye does not apply to novel conclusions; Frye applies to novel scientific methodologies, not conclusions) United States v Parra, 402 F. 3d 753, 758 (3d Cir. 2005)(in a criminal law case involving charges of drug violations court states that Rule 702 of Federal Rules of Evidence supersedes Daubert, although Daubert laid the foundation for the rule) Palandjian v. Foster, 842 N.E. 2d 916, 920 (Mass. 2006)(because standard of care is based on what physicians customarily do it does not have to be scientifically tested; Daubert does not 6 49 apply to standard of care witness testimony; however, when expert testimony incorporates a scientific fact, such as a family history increasing the risk of cancer, that science is subject to a Daubert analysis) Conway v Bayhealth Medical Center 2001 WL 337228 (De. Super.)[not reported in A. 2d](Daubert applies to all expert testimony, including expert testimony regarding the standard of care) Legislative reforms Expert in same field Expert practicing at time Managed Care Managed Care Direct Negligence: Treatment and diagnostic decisions Corruption of Medical Judgment Administrative Errors Managed Care Vicarious Liability STANDARD OF CARE Quality of care Quantity of care Wickline v. State of California, 239 Cal. Rpt. 810 (1986) Medical managed care organization not liable for refusing to accept surgeon’s recommendation for extended hospital stay where its procedures allowed for appeal and surgeon released patient from hospital without pursing an appeal Wilson v. Blue Cross of So. California, 271 Cal. Rptr. 876 (Cal.App.2d Dist. 1990) Private managed care company may be held liable for refusing extension of hospital sty for mental patient who committed suicide upon release, where refusal to allow extension was based on an erroneous reading of plan coverage In Aetna Health Inc. V. Davila et al. , 542 U.S. 200, 124 S. Ct. 2488, (2004) (“Aetna”) the U.S. Supreme Court held that ERISA preempts tort actions against managed care organizations that provide health care benefits under an ERISA plan. Prior to Aetna the lower federal and state courts were struggling to distinguish the conduce of managed care companies that made them subject to state tort liability and the conduct that allowed them to enjoy ERISA immunity from state tort law liability. The result of the Aetna decision--at least until Congress passes legislation to address the problem--is that most individuals who obtain health care coverage as a part of 7 50 employee benefits will not be able to pursue tort remedies against managed care companies, while those who have non-ERISA health coverage benefits will also have the protection of state tort law. In short, health care providers, consumers, and litigators now face a two tiered system of legal remedies for MCO’s: limited ERISA remedies under federal law for health care provided under an ERISA plan and full state tort liability for insurers and MCOs who provide care under non ERISA plans. Understanding what plans are covered by ERISA is now an essential task for litigators, both in understanding the law and ascertaining the facts If the health care is not covered by an ERISA PLAN the following cases may still be helpful in assessing the potential liability of the manager care organization. Dukes v. U.S. Healthcare, 57 F.3d 350 (3d Cir. 1995) Quality of care vs. quantity of care distinction Quantity of care decisions are preempted by ERISA Quality of care decisions are not preempted Bauman v. U.S. Healthcare, Inc. (In re U.S. Healthcare, Inc.), 193 F.3d 151 (3d Cir. 1999) Claims of direct liability and vicarious liability against HMO physician’s and hospital’s discharging newborn infant within 24 hours of birth in accordance with HMO policy was not preempted by ERISA Pegram v. Herdrich, 530 U.S. 211 (2000) Coverage Decision Treatment Decision Mixed treatment & Coverage Held: Physician does not act in fiduciary capacity when making mixed eligibility and treatment decision and thus plaintiff cannot assert an ERISA claim based on breach of fiduciary duty in such decision-making Rationale: no evidence Congress intended to create federal malpractice law, duplicative of state tort law when it enacted ERISA Cicio v. Vytra Healthcare, 2003 WL 283150 (2d Cir. 2003) In light of Pegram decision, the following claims of plaintiff were not preempted by ERISA: Misrepresentation Timeliness of treatment & Negligence Villazon v. Prudential Health Care Plan, 843 So. 2d 842 (Fla. 2003) ERISA does not preempt husband’s claim of vicarious liability of managed care company whose physicians allegedly mis-diagnosed or mistreated his wife, causing her to die from an untreated cancerous condition in her tongue. In the court’s view, this is the kind of mixed eligibility and treatment decision that Pegram discussed. 8 51 DiFelice v. Aetna U.S. Healthcare, 346 F.3d 442 (3d Cir. 2003)(claim that HMO interfered with patient’s treatment by declaring a special tracheotomy tube unnecessary was preempted by ERISA, but claim that HMO caused premature discharge from hospital was not preempted). For a thorough and insightful analysis of the medical malpractice issues that courts have courts have struggled with in light of ERISA see Joseph T. Lowe, Quantity Versus Quality: The Medical Malpractice Exception to ERISA Preemption, Quinnipiac Health L. J. 153 (2002) 9 52 2