Estate of McCall v. United States (Summary)

CONSTITUTIONALITY OF CAP ON DAMAGES

Estate of McCall v. United States, No. SC11-1148 (Fla. Mar. 13, 2014)

The Florida Supreme Court ruled that a cap on noneconomic damages in a wrongful death lawsuit is a violation of the Equal Protection Clause of the state constitution. Michelle McCall was a 20-year-old pregnant Air Force dependent suffering from severe preeclampsia. Labor was induced by the United States Air Force family practice department, and McCall lost a significant amount of blood during delivery. After the baby was born, McCall’s blood pressure began to drop to a dangerously low level, where it remained for over two hours. When the surgeon arrived later to help remove the placenta, he was not informed that McCall had lost a significant amount of blood, or that her blood pressure was severely low and continuing to drop. McCall went into shock and cardiac arrest as a result of this blood loss, and never regained consciousness. The United States was found liable under the Federal Tort Claims Act, and the district court found the noneconomic damages to total $2 million. However, the petitioners’ recovery of wrongful death noneconomic wages was limited to an aggregated $1 million, per the state’s statutory cap.

The Supreme Court found no rational basis for a cap on wrongful death noneconomic damages, and stated that such a cap imposed “unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants.” As such, the court found the cap to be in violation of the Equal Protection Clause of the Florida Constitution. The court also rejected the state’s attempt to justify the cap based on claims of a medical malpractice insurance crisis, in which increased insurance premiums have allegedly resulted in physicians leaving the state. The court found inconclusive evidence regarding the existence of this crisis, and further held that there was no rational basis between the cap and any legitimate state purpose.

Fahlen v. Sutter Cent. Valley Hosps (Summary)

EXHAUSTION OF REMEDIES

Fahlen v. Sutter Cent. Valley Hosps., No. S205568 (Cal. Feb. 20, 2014)

The Supreme Court of California affirmed that a physician did not need to set aside a hospital’s decision to terminate staff privileges, through a mandamus action, before filing suit under the state’s whistleblower law.  The court held that the statute forbidding retaliation or discrimination against whistleblowers in no way conditions its protection on a successful mandamus challenge to the hospital’s actions.  To rule otherwise, the court held, would be to undermine the purpose of the protection and to disregard the legislature’s intent. 

At the heart of the case is a physician who was employed by a medical group and was granted clinical privileges to practice at a hospital.  In both 2004 and 2006, the physician twice argued with nurses because they allegedly failed to follow his treatment instructions.  From 2007 to 2008, the physician had six additional clashes with nurses who he claimed had been insubordinate and had provided substandard care.  On several occasions, the physician had reported his concerns to the hospital.

In 2008 the hospital contacted the director of the medical group to discuss the physician’s “disruptive interactions” with staff.  Shortly thereafter, the medical group terminated the physician’s employment.  Admittedly, this was the action the hospital had hoped would occur.  Instead of resigning his appointment and privileges and leaving the area, however, the physician notified the hospital of his intent to continue to practice.  Thereafter, an investigation was commenced and a report was made and approved by the Medical Executive Committee recommending against the renewal of the physician’s privileges.  The physician challenged this recommendation through the hearing process.

Some ten months and 13 sessions later, the judicial review committee reversed the recommendation of the Medical Executive Committee.  The Board sent the matter back to the judicial review committee with a series of detailed questions asking whether each incident occurred and seeking clarification about the evidence that was considered with respect to each incident.  Concluding that it was unreasonable, the judicial review committee refused to abide by the Board’s request.

Thereafter, the Board rejected the conclusion of the judicial review committee finding that it was “unlinked to any factual support in the hearing record” and that from its review of the record, the physician’s conduct “was inappropriate and not acceptable, [and was] directly related to the quality of medical care at the hospital.”

The physician opted not to seek mandamus to reverse the Board’s decision.  Instead, he sued the hospital seeking reinstatement and damages, claiming that the hospital’s action to terminate his privileges had been in retaliation for his complaints about substandard care.  The ruling of the California Supreme Court paved the way for the physician to proceed with this action.

Franz v. Ashland Hosp. Corp (Summary)

MEDICAL MALPRACTICE, NEGLIGENT CREDENTIALING

Franz v. Ashland Hosp. Corp., No. 2009–CA–002269–MR (Ky. Ct. App. Feb. 28, 2014)

Following injuries sustained by a patient during CABG surgery, and the patient’s death 16 months later, a suit was brought against a number of physicians, including the surgeon who performed the CABG, and the hospital where the surgery was performed.  In the medical malpractice case, the jury found that the surgeon had not failed to meet the standard of care.  Thereafter, the court granted summary judgment to the hospital.  The trial court had also dismissed a claim for medical battery against the surgeon before the trial.

The court of appeals upheld the dismissal of the claim for medical battery against the surgeon and the dismissal of the claims against the hospital.  Specifically, the court of appeals concluded that the claim for medical battery failed because the patient had not proven a complete lack of consent (i.e., she consented to the CABG surgery and she consented for the surgeon to perform the surgery).  In this case, the claim for battery was based on the fact that the surgeon’s privileges at the hospital were expired when the procedure was performed.  The court of appeals refused to create a “new route for a lack of consent claim” based on a lack of privileges.

The court of appeals also upheld the dismissal of the claims against the hospital.  The court found that, absent liability on the part of the surgeon, the hospital could not be liable to the patient, even though it had failed to follow its own rules, protocols, and policies.  According to the court, there was no causal connection between the patient’s injury and the hospital’s misstep in failing to follow its own rules.

The court of appeals also upheld the trial court’s order which precluded testimony pertaining to the surgeon’s “so-called mental illness.”  Since the standard of care for physicians is an objective standard, evidence of a physician’s subjective state of mind is irrelevant.  As the court noted, “despite a physician’s ‘less than optimal mental and emotional condition,’ if the physician’s ‘actual treatment of a patient reflects the appropriate degree of care,’ he or she ‘cannot be held liable in negligence.’”

Lopez v. Contra Costa Reg’l Med.l Ctr (Summary)

EMTALA

Lopez v. Contra Costa Reg’l Med.l Ctr., No. C 12-03726 LB (N.D. Cal.  Feb. 28, 2014)

The family of a mother who passed away following the birth of her third child, from complications related to the pregnancy, brought a claim against the hospital for malpractice and for violating the Emergency Medical Treatment and Active Labor Act (“EMTALA”).  With respect to the EMTALA claim, the family asserted that the hospital had admitted the mother to its facility to stabilize her emergency condition, but did so in bad faith.

The United States District Court for the Northern District of California granted summary judgment to the hospital because the records clearly showed that the mother had been admitted to the hospital for treatment, not to be stabilized.  The court concluded that EMTALA does not have a “good faith” requirement with respect to the provision of medical treatment after admission. 

According to the court, the family had not shown that the mother had been admitted to the hospital to be stabilized for transfer.  Rather, the hospital had sufficiently established that the mother was admitted for the delivery of her child as well as for the postpartum complications she suffered.  Therefore, EMTALA was not implicated.

Lawrence v. MountainStar Healthcare (Summary)

MEDICAL MALPRACTICE/APOLOGY LAW

Lawrence v. MountainStar Healthcare, No. 20120352-CA (Utah Ct. App. Feb. 21, 2014)

The Court of Appeals of Utah affirmed a jury verdict in favor of a hospital in a patient’s medical malpractice case, finding that the hospital’s breach of the standard of care was not the cause of the patient’s injury.

The patient had visited the emergency room, seeking treatment for an allergic reaction to Tylenol 3.  A physician had prescribed three medications, epinephrine to be administered subcutaneously and the other two medications to be administered intravenously.  However, a nurse administered all three medications intravenously.

The patient experienced negative side effects from the epinephrine, crying out in pain, vomiting, experiencing heart palpitations, and more.  Later, the physician spoke with the patient about the erroneous epinephrine administration, acknowledging that a mistake had been made.  Hospital administrators and risk managers also met with the patient and acknowledged the error.  The patient remained in the hospital for about a week.

Subsequently, the patient filed suit against the hospital, claiming that the intravenous administration of epinephrine caused her to suffer anoxic brain damage, cardiac damage, thoracic outlet syndrome, headaches, depression, anxiety, cognitive defects, and neck, shoulder and back pain.  The hospital agreed that the incorrect administration of epinephrine was a breach of the standard of care.  However, the hospital asserted that the breach was not a “direct, proximate, or contributing cause of any damages allegedly sustained” by the patient.

Following a trial in which multiple experts testified on behalf of both sides, the jury returned a verdict in favor of the hospital, finding that the hospital’s breach of the standard of care did not cause the patient’s injuries.  The patient appealed, challenging a number of the trial court rulings, including the exclusion of evidence pertaining to comments made by the physician, nurse, and administrator following the medication error.

The appellate court found that most of the statements which had been excluded were, in fact, inadmissible under the state apology rule, which covered statements of apology, sympathy, condolence, or general sense of benevolence.  However, the appellate court found that other statements, including “we messed up” and “there’s been an incident, accident,” could be viewed as statements of fault or complication and were not covered by the apology statute.  Although the statements of fault were erroneously excluded, the appellate court found that the patient was not prejudiced by this exclusion and the jury verdict was upheld.

Love v. Permanente Med. Group (Summary)

ATTORNEY-CLIENT PRIVILEGE

Love v. Permanente Med. Group, No. C-12-05679 DMR (N.D. Cal. Feb. 19, 2014)

The United States District Court for the Northern District of California found that the attorney-client privilege had been waived by the presence of a “guest” at a meeting of a Credentials and Privileges Committee (“Credentials Committee”) and, therefore, granted a request for the production of unredacted committee minutes.  The plaintiff, a social worker, had been employed by a medical group in its chemical dependency division.  The social worker had learned of a death threat against her, made by one of her patients, and requested that the medical group obtain a restraining order.  According to the complaint, when the medical group refused, the social worker complained about workplace safety and the medical group retaliated by bringing disciplinary charges against her, and subsequently terminated her employment.  The social worker sued.

During the course of discovery, the social worker sought the production of Credentials Committee minutes.  The medical group produced the minutes, in redacted form, claiming the redacted portion was protected by the attorney-client privilege because it pertained to advice that had been given by legal counsel. 

After reviewing the minutes, the court agreed that the privilege had not been waived simply because the legal opinion had been communicated by the administrator to the Credentials Committee instead of by counsel herself.  Even sharing the legal opinion with the Credentials Committee did not constitute a waiver of the privilege, the court found.

However, according to the court, the privilege was waived by communicating protected information in the presence of a “guest.” The court reasoned that the “guest” did not have any connection to the social worker, the relevant departments and committees, any aspect of the litigation, or any common legal interest to support an assertion of the common legal interest privilege.  Rather, the “guest,” who was identified as the chief of the department of pediatrics, had been invited to the Credentials Committee meeting to address questions pertaining to pediatric privileges.

It is worth noting that it was not clear from the minutes that the guest had actually been present when the legal opinion was shared.  However, as the court pointed out, the party claiming the privilege bears the burden of proving that it applies.  Since there was nothing in the minutes to reflect that the guest had, in fact, left the meeting when the privileged communication was shared, the court concluded that the privilege had been waived.

Centinela Freeman Emergency Med. Assocs. v. Health Net of California, Inc. (Summary)

MANAGED CARE

Centinela Freeman Emergency Med. Assocs. v. Health Net of California, Inc., No. B238867 (Ca. Ct. App. 2nd Dist., Div. 3 Feb. 19, 2014)

Several groups of emergency medicine physicians and a group of radiologists were not paid for the services they rendered to patients covered by an HMO because the IPA to which the HMO delegated its responsibility to reimburse physicians was having financial difficulties.  The physicians sued the HMO for, among other things, negligent delegation.  The California Court of Appeal held that an HMO has a duty not to delegate its obligation to reimburse emergency physicians to an IPA that it knows will be unable to do so.  The court sent the case back to the lower court for further proceedings.

Auluck v. County of Alameda (Summary)

AGE DISCRIMINATION; RETALIATORY DISCHARGE

Auluck v. County of Alameda, No. C-13-05511(EDL) (N.D. Cal. Feb. 18, 2014)

The U.S. District Court for the Northern District of California granted a plaintiff leave to file an amended complaint in a suit alleging that the county and health care services agency violated his free speech rights and discriminated against him due to his advanced age.  After expressing concerns about the quality of hospital care provided to patients of the county’s Juvenile Justice Center, the 69-year-old psychiatrist plaintiff was put on administrative leave.  The leave was only lifted after he complied with a number of specific conditions, including case monitoring and enrollment in a remedial course on record keeping.  The psychiatrist submitted his resignation when he was placed on administrative leave for the second time.  The defendant then filed an “805 report” with the Medical Board of California, stating that the psychiatrist resigned while a fitness for duty investigation was pending.  The Medical Board of California subsequently evaluated the psychiatrist and determined that there was no evidence to suggest the plaintiff was unfit for duty.  The defendant filed a motion to strike the plaintiff’s causes of action based on the 805 report, which the court granted.  However, the court ruled that the defendant was not immune for filing a document along with the report, which the plaintiff alleged was fraudulent, because the plaintiff adequately alleged that the report was filed with malice.

Davis v. Kewanee Hosp. (Summary)

PEER REVIEW PRIVILEGE

Davis v. Kewanee Hosp., No. 2-13-0304 (Ill. App. Ct. 2nd Dist. Feb. 25, 2014)

An anesthesiologist, whose offer of employment was withdrawn before the credentialing process was completed, asked the hospital to provide copies of all the information it relied upon in withdrawing the employment offer because he believed that individuals where he had previously been employed were making disparaging comments about him.  The hospital declined to provide the information.  The anesthesiologist sued, alleging that the hospital’s refusal violated the exceptions to the confidentiality provisions in the Illinois Medical Studies Act and in the Illinois Credentials Act allowing physicians access to information used in making credentialing and privileging decisions.  The hospital argued that the exceptions in those statutes did not apply because it had made an employment decision, not a credentialing decision.  The lower court agreed.  On appeal, the hospital argued that neither the Illinois Medical Studies Act nor the Credentials Act gives a physician a private right of action.  The appeals court agreed, ruling that neither statute gives a physician either an express or an implied private cause of action.

Abdel-Samed v. Dailey — Feb. 2014 (Summary)

NEGLIGENCE

Abdel-Samed v. Dailey
No. S13G0657 (Ga. Feb. 24, 2014)

In this medical malpractice litigation, the plaintiff alleged that the physician’s assistant and physician who saw him in the hospital’s emergency department were negligent when they failed to timely transfer him to a hand surgeon, resulting in the amputation of the tip of his middle finger and other complications.  The defendants filed a motion for summary judgment, arguing that the plaintiff’s claim was subject to a state statute requiring plaintiffs who file claims “arising out of the provision of emergency medical services in a hospital emergency department…to show clear and convincing evidence that the physician or health care provider’s actions showed gross negligence.”  The trial court granted summary judgment in favor of the defendants.  The appeals court reversed, finding an issue of fact regarding whether the statute applied to this situation.  The Georgia Supreme Court ruled that there was no question that the statute applied, but that summary judgment for the defendants was inappropriate because there was a genuine issue for the jury as to whether the defendants’ action constituted gross negligence.