Fundamentals of Health Law
Provider Liability in the Healthcare Setting
– The Basics and Beyond
October 30, 2012
Todd R. Bartos, Esquire
1
Agenda

Sources and theories of liability

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
Defense Issues




Professional Negligence
EMTALA Violations
Informed Consent
Agency Liability
New claims in medical negligence
Joint and Several Liability
Comparative and Contributory Negligence
Two Schools of Thought
Future Trends



Impact of Health Care Reform measures
ADR
Arbitration Clauses
2
1
Disclaimer



Each state is unique
Goal today is to showcase general principles and trends
Discussions regarding hospitals assume private hospital

Not a government-owned or operated hospital
3
Types of Claims and Elements
4
2
Professional Negligence

Elements

Existence of a duty to use due care



Provider/patient relationship
When does the duty attach?
Breach of the standard of care



Generally – what a reasonably prudent provider would do under
similar circumstances
Breach can be by omission or commission
Expert testimony to establish standard of care
5
Professional Negligence

Elements (con’t)

Breach is a substantial cause of harm

Can prove causation generally by showing:



But for causation
Increase in the risk of harm/removal of chance to avoid harm
Damages causally related to the breach







Medical Expenses (Past and Future)
Wage Loss/Earning Capacity (Past and Future)
Pain and Suffering (Past and Future)
Loss of Household Services (Past and Future)
Punitive Damages
Loss of Consortium
Funeral expenses
6
3
Professional Negligence

Damages (con’t)

Damage caps on compensatory awards (presently in some form in 30
states)


States – Alaska, California, Colorado, Florida, Hawaii, Idaho, Indiana, Kansas,
Louisiana, Maryland, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Mexico, North Carolina, North
Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Tennessee, Texas,
Utah, Virginia, West Virginia
Note – Georgia and Illinois caps held unconstitutional in 2010
 Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, 286 Ga. 731 (2010),
available at http://www.gasupreme.us/sc-op/pdf/s09a1432.pdf
 Lebron v. Gottlieb Memorial Hospital (Ill. 2010) available at
http://caselaw.findlaw.com/il-supreme-court/1506657.html
7
Professional Negligence

Damages (con’t)

Punitive damage limitations/reforms (presently in some form in 33
states)


Note – standard for awarding punitive damages varies by state
 States – Alabama, Alaska, California, Colorado, Connecticut (via
common law), Florida, Georgia (unaffected by decision striking
noneconomic cap), Idaho, Indiana, Iowa, Kansas, Louisiana,
Maine (Death claims only), Minnesota, Mississippi, Missouri,
Montana, Nevada, New Hampshire, New Jersey, New York,
North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South
Carolina, South Dakota, Tennessee, Texas (Death claims only),
Utah, Virginia and Wisconsin
Some apply to all cases, some are time-limited regarding date of
effectiveness and some apply only to certain types of claims (e.g.
Death claims)
8
4
Res Ipsa Loquitur

Restatement (2d) Torts §328D

Allows the jury to infer negligence caused by defendant when:

(a) the event is of a kind which ordinarily does not occur in the
absence of negligence;

(b) other responsible causes, including the conduct of the plaintiff
and third persons, are sufficiently eliminated by the evidence; and

(c) the indicated negligence is within the scope of the defendant's
duty to the plaintiff.
9
Professional Negligence

Key Issue – Experts


Required to prove the case (or to disprove it)
Standard for admissibility will vary by state

Generally look at:




Board Certification
Retired or actively practicing
Practice in same sub-specialty
Overlap between specialties
10
5
Practice Pointer – Experts

Must look at:

Do they understand the facts?
Do they have the right credentials?
Is it held to a reasonable degree of certainty?

Recent issues – what constitutes necessary certainty?




And what does that mean?
Griffin v. University of Pittsburgh Medical Center-Braddock Hosp., 950
A.2d 996, 1001-02 (Pa.Super. 2008)



Despite stating that all opinions would be to a reasonable degree of certainty,
expert witness disqualified and opinion stricken when he stated the following
 Injury “most likely” due to negligence
 Negligence was “least implausible” cause of injury
 It was a “51% to 49% consideration” that it was negligence
But…Court must look at report and testimony in its entirety and not just to
isolated phrases – See e.g. Stimmler v. Chestnut Hill Hosp., 602 Pa. 539,
981 A.2d 145 (2009)
Result – each case is unique on its facts and reports
11
Practice Pointer - Experts

How much if what the expert reviews is discoverable?

Example - Pennsylvania Superior Court

Barrick v. Holy Spirit Hospital



And…in Federal Court

Fed. R. Civ. P. 26(b)(4), amended




Letters sent from counsel to experts are not discoverable under state
procedural rules
But…as of October 1, 2012, on appeal to PA Supreme Court
Work Product protection extended to experts
Expert disclosure only includes
 Facts, data and assumptions
 Compensation
Otherwise draft reports and communication from counsel is protected
Ultimately, it becomes an issue that depends on
state and venue
12
6
Professional Negligence

Key issue – Tort Reform

According to the American
Tort Reform Association

Note – only includes
reforms passed since 1986
and thus a few states
omitted from the list

Note – numbers represent
states with some type of the
listed reform
Source: ATRA 2011 Tort Reform Record, accessed
at http://www.atra.org/sites/default/files/documents
/record_12-22-11.pdf (October 1, 2012)
13
Growing trend – Certificates/Affidavits of Merit

25 states with these laws:



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







Ariz. Rev. Stat. Ann. §12-2603
Colo. Rev. Stat. § 13-20-602
Conn. Gen. Stat. Ann. § 52-190a
Del. Code Ann. tit. 18 § 6853
Fla. Stat. Ann. § 766.104 and 766.203
Ga. Code Ann. § 9-11-9.1(a)
Md. Code Ann., Cts. & Jud. Proc. § 32A-04
Mich. Comp. Laws Ann. §145.682
Minn. Stat. § 544.42, subds. 1 and 2
Miss. Code Ann. § 11-1-58
Mo. Ann. Stat. § 538.225
Nev. Rev. Stat. Ann. § 41A.071






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

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N.J. Stat. Ann. §§ 2A:53A-26 to 2A:53A-29
N.Y. Civ. Pract. L. R. 3012-a
N.D. Cent. Code § 28-01-46
OH ST RCP 10(d)(2)
Okla. Stat. Ann. tit. 12 § 19
Pa.R.Civ.P. Rules 1042.1 to 1042.8 et seq.
S.C. Code Ann. § 15-36-100
Tenn. Code Ann. § 29-26-122
Tex. Civ. Prac. & Rem. Code § 74.351
UT Code §78B-3-423
Va. Code Ann. § 8.01-20.1
W. Va. Code § 55-7B-6
WY Stat §9-2-1519
14
7
Professional Negligence

Professional Negligence Claims can apply to



Physicians
Nurses
Other medical providers





LPN (Licensed Practical Nurse)
CRNP (Certified Registered Nurse Practitioner)
PA (Physician Assistant)
CRNA (Certified Registered Nurse Anesthetist)
Issue – what standard of care applies?




One answer - “We hold that a physician assistant must be held to the
‘recognized standard of acceptable professional practice in the profession’ of
physician assistants and any specialty thereof, and not to a standard applied to
physicians” Cox v Primary and Urgent Care Clinic et al., Supreme Court of
Tennessee, No. M2007-01840-SC-R11-CV
Note – Scope of Practice is very state-specific
More of them will be needed in the next decade
Do you know what documentation, collaboration and/or supervision will be
needed?
15
EMTALA Liability
Emergency
 Medical
 Treatment and
 Active
 Labor
 Act

Emergency Medical Treatment & Labor Act
(EMTALA)
In 1986, Congress enacted the Emergency Medical Treatment & Labor
Act (EMTALA) to ensure public access to emergency services
regardless of ability to pay. Section 1867 of the Social Security Act
imposes specific obligations on Medicare-participating hospitals that
offer emergency services to provide a medical screening examination
(MSE) when a request is made for examination or treatment for an
emergency medical condition (EMC), including active labor, regardless
of an individual's ability to pay. Hospitals are then required to provide
stabilizing treatment for patients with EMCs. If a hospital is unable to
stabilize a patient within its capability, or if the patient requests, an
appropriate transfer should be implemented.
Practice Resource - http://www.cms.gov/Regulations-andGuidance/Legislation/EMTALA/index.html?redirect=/EMTALA/
16
8
EMTALA Obligations



Appropriate medical screening examination (MSE) to any
individual who comes to the ED and requests examination or
treatment for a medical condition
Necessary stabilizing treatment to an individual with an
emergency medical condition (EMC) or an individual in labor
Appropriate transfer if either the individual requests the transfer
or the hospital does not have the capability or capacity to
provide the treatment necessary to stabilize the EMC
17
EMTALA Proposed Rule

CMS issued an advanced notice of proposed rulemaking asking
for comments that address whether CMS should revisit the
Emergency Medical Treatment and Active Labor Act policies that
were established in 2003 and 2008 (December 23, 2010)

Issued because of disagreement among Circuit Courts and
others regarding EMTALA’s application to inpatients who remain
unstable and must be transferred to a hospital with specialized
capabilities.

Question is whether hospital with specialized capabilities has an
EMTALA obligation to accept an appropriate transfer

CMS’s current policy is that the hospital does not have an EMTALA
obligation to accept a transfer of this individual
18
9
First Circuit Holds Lack of Specialist
Defeats Hospital's EMTALA Obligations

A Puerto Rico hospital that transferred a patient from its
emergency room because it could not provide the needed
medical services was not liable for damages arising from his
death, even though a physician jotted down only a shorthand
explanation of the reason for the transfer on a certification form


Ramos-Cruz v. Centro Medico del Turabo, 1st Cir., No. 10-1203,
4/8/11).
Appeals court said that a truncated explanation for the transfer
on hospital's pretransfer certification nevertheless was
adequate to relieve defendant Centro Medico del Turabo, d/b/a
Hospital Hima San Pable Fajardo, of liability under EMTALA
19
First Circuit Holds Lack of Specialist
Defeats Hospital's EMTALA Obligations





Plaintiffs Jose Ramos-Cruz and Deborah Lopez-Pagan took their son,
Jose Ramos-Lopez, to hospital's emergency room complaining of
abdominal pain. Jose was diagnosed with gastrointestinal bleeding.
Because hospital did not have a gastroenterologist available, the
emergency room physician transferred Jose to a hospital where he
could be treated by a specialist. Despite treatment, Jose died.
The plaintiffs sued the hospital and its insurer, alleging that the transfer
violated EMTALA.
The U.S. District Court for the District of Puerto Rico granted summary
judgment for the defendants, and the plaintiffs appealed
Court also found that hospital gave Jose appropriate pretransfer
treatment. Deciding what it called an issue of first impression in the
circuit, court said a hospital runs afoul of the treatment requirement only
when it violates an existing hospital procedure or requirement
20
10
Cleveland Clinic Not Vicariously Liable
For Hospital's Alleged Failure to Screen

An affiliation agreement between the Cleveland Clinic and a
Pennsylvania hospital did not provide a basis for holding the clinic
vicariously liable for the hospital's alleged violation of EMTALA




Byrne v. Cleveland Clinic, E.D. Pa., No. 2:09-cv-889, 3/31/11
The U.S. District Court for the Eastern District of Pennsylvania granted
summary judgment for the clinic on plaintiff William Byrne's claim that
the facility could be held liable for an alleged failure to screen
committed by co-defendant Chester County Hospital (CCH).
The court said Byrne presented insufficient evidence of an agency
relationship between the two hospitals.
Byrne went to the emergency room at CCH needing medical care. He
alleged, in a complaint filed in federal court, that CCH failed to provide
him with the appropriate medical screening required by EMTALA.
21
Cleveland Clinic Not Vicariously Liable
For Hospital's Alleged Failure to Screen


The EMTALA screening obligation, the court said, arises only when
a patient seeks treatment at a hospital's emergency room. Because
Byrne never sought treatment at the emergency room of the
Cleveland Clinic, the clinic could not be held directly liable on the
screening claim, the court concluded
Court also concluded that Cleveland Clinic could not be held liable
on Byrne's vicarious liability claim


Byrne contended that there was an affiliation agreement
between the clinic and CCH that created an agency relationship
and permitted liability for CCH's actions to be imputed to clinic
The court found, however, that the affiliation was “merely associative
in nature.” That is, it said, the agreement focused primarily on
“information-sharing for research, educational conferences, training,
surgical protocols, advice, patient consultation, and generic quality
improvements.”
22
11
Court Rejects Claims for Failure to Stabilize,
Adequately Screen in Premature Labor Case

A woman who was treated and discharged after arriving at a
hospital emergency department in premature labor may not
pursue claims under EMTALA


Richard v. University Medical Center of Southern Nevada, D.
Nev., No. 2:09-cv-2444, 3/21/11
U.S. District Court for the District of Nevada said Latricia
Richard could not show that the medical screening exam she
received in the labor and delivery department of University
Medical Center of Southern Nevada differed from exams
given to other women in premature labor or that the hospital
failed to stabilize an emergency medical condition before
discharging her
23
Court Rejects Claims for Failure to Stabilize,
Adequately Screen in Premature Labor Case

Court found the “inadequate screening” claim failed because EMTALA
requires proof that a patient presenting to a hospital emergency
department received a “disparate” screening


Richard provided no evidence of what “appropriate screening”
hospital normally gives to women presenting with similar symptoms
and under like conditions
Richard's failure to stabilize claim also failed, court said, because
EMTALA only requires stabilization of emergency medical conditions
prior to transfer or discharge

Richard presented no evidence that the hospital staff was aware
that she was suffering from an emergency medical condition and
that it discharged her without stabilizing it.
24
12
Fifth Circuit Affirms Ruling That Hospital
Did Not Violate EMTALA's Screening Clause

A Texas hospital did not violate the screening provision of
EMTALA when it discharged a child from its emergency room
prior to reviewing final test results and without taking a full
second set of vital signs

Guzman v. Memorial Hermann Hospital System, 5th Cir., No.
09-20780, unpublished opinion 2/1/11)
25
EMTALA

Key questions

Was it an emergency medical condition or active labor
Was any screening exam done
If so, was it adequate
Did patient leave AMA
Was patient stable at discharge/transfer

Need the right experts to answer each issue




26
13
Informed Consent

Patient to be apprised - material risks, benefits & alternatives


See Joint Commission Accreditation Manual for Hospitals; Standard
RI.2.40
Interpreter may be required


See e.g. N.J. Stat. §26:2H-12.8(h) (2006), 18 V.S.A. §1852 (2006)
Exists in one of two forms

Battery


Without proper consent, surgery is an unpermitted touching
Started with Schloendorff v. N.Y. Hosp., 105 N.E. 92 (N.Y. 1914)
(Cardozo, J.) (NY has since adopted negligence standard)

New York has since gone to a negligence standard, but this opinion remains
one of the key discussions of this entire area of law. See N.Y. Public Health
Law § 2805-d (1975), adopting a negligence standard for informed consent
claims.
27
Informed Consent

Negligence



Part of your duty of care to the patient
Howard v. Univ. of Medicine and Dentistry of New Jersey, 800
A.2d 73 (N.J. 2002)
All states have different parameters for type of information and
types of “procedures” that require consent

For example





Invasive surgical procedures
Radiation/chemotherapy
Blood transfusions
Experimental treatment
Device insertion
28
14
Informed Consent

Elements of the claim

Surgeon failed to disclose necessary information

Tests


Material to a reasonable patient
 Canterbury v. Spence, 464 F.2d 772 (D.C.Cir. 1972)
 Howard, supra. – “The information a doctor must disclose
depends on what a reasonably prudent patient would deem
significant in determining whether to proceed with the proposed
procedure.”
What other doctors generally disclose
 NY CLS Pub Health §2805-d(3) (2006); Ritz v. Fla. Patient’s
Compensation Fund, 436 So.2d 987 (Fla.App. 1983);
N.H.Rev.Stat.Ann. § 508:13; Smith v. Cotter, 810 P.2d 1204
(Nev. 1991)
29
Informed Consent

Causation - Two tests

1. This particular patient would not have undergone procedure



must testify that he or she would have refused the procedure had the
information not provided been made known
Canterbury, supra.; 40 P.S. §1303.504
2. Reasonable patient would not have undergone procedure


Greenberg v. Gillen, 257 S.W.3d 281, 282-3 (Tex.App. 2008)
 Causation element requires evidence that reasonable patient
would not have undergone the procedure and that the harm was
caused by the undisclosed risk
Howard, supra
 “A plaintiff seeking to recover under a theory of lack of informed
consent also must prove causation, thereby requiring a plaintiff to
prove that a reasonably prudent patient in the plaintiff's position
would have declined to undergo the treatment if informed of the
risks that the defendant failed to disclose.”
30
15
Informed Consent

Exceptions

Emergency Rule



Consent not required if situation is emergency
Every state has some form of this either in case law or statute
Therapeutic privilege

Limited disclosure of risks allowed when, in physician’s judgment,
a full disclosure would so trouble the patient so as to cause them
to forego needed treatment


Canterbury, supra.; Natanson v. Kline, 350 P.2d 1093 (Kan. 1960)
Used infrequently
31
Informed Consent

Considerations



Capacity to consent
Health Care Powers of Attorney/Representatives
In some cases, the surgeon may need to disclose



Surgeon’s HIV status
Competency/experience with the particular procedure
Prior outcomes of other patients



See Peter H. Schuck, Rethinking Informed Consent, 103 Yale L.J. 899 (1994)
Whiteside v. Lukson, 89 Wash.App. 109, 947 P.2d 1263 (Wash.App. 1997)
And…if the patient asks, must be truthful
 Willis v. Bender, 596 F.3d 1244 (10th Cir. 2010)
 Physician provided knowingly false information in response to request
from patient for success rate for the procedure
 Howard, supra
 Physician’s failure to truthfully respond to question regarding experience
and board certification gave rise to informed consent claim
32
16
Informed Consent

What’s new?

Second Generation of Informed Consent

Procedure specific


Vetted by clinical experts
Other strategies




Spousal consent
Requirement of coming back to doctor first
Incorporation of web-based processes
New Introductory paragraph
33
Witness Attestation
□
□
□
The Patient/Authorized Representative has read this form or had it read to
him/her.
The Patient/Authorized Representative states that he/she understands this
information
The Patient/Authorized Representative has no further questions.
______________
Date
______________
Time
______________________________
Signature of Witness
34
17
Vicarious Liability

Vicarious Liability



Responsibility for actions of another
Generally applied to employer/employee relationships
Also applies when there is



See generally 51 A.L.R. 4th 235 §1(a)



Physician/resident
Physician/nurse or allied health professional
Employer/employee relationship
Acting within course and scope
Dearman v. Christian, 967 So.2d 636 (Miss. 2007)


Issue – Radiologist’s liability for hospital staff member’s negligence
Absent evidence of control over staff, no claim for negligent
supervision or vicarious liability against radiologist
35
Ostensible Agency

Ostensible Agency


Going up the ladder
Vicarious liability for independent contractor


See generally 51 A.L.R. 4th 235 §5 (listing of independent
contractor cases by state)
Test is generally whether the patient believed that that
corporate entity was supplying the doctor
36
18
Ostensible Agency

Ostensible Agency (con’t)

Examples





Emergency Departments
Radiology
Anesthesiology
Inpatient consultations
Practice Pointers






Hospital Forms
Signs
Badges/ID Cards
Advertising
Patient Handouts
Lab Coats
37
Ostensible Agency

Ostensible Agency (con’t)

Tests

Hospital ‘held out’ doctor through conduct and/or affirmative
representations

Patient looked to the hospital to provide care



Baptist Mem’l. Hosp. Sys. v. Sampson, 969 S.W.2d 945 (Tex. 1998)
York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill.2d 147,
854 N.E.2d 635 (Ill. 2006); McLeod v. Mount Sinai Medical Center,
852 N.E.2d 1235 (Ohio App. 2006)
Dewald v. HCA Health Services of Tennessee, 251 S.W.2d 423
(Tenn. 2008) (adopting Restatement (2d) Torts §429)

Restatement (2d) Torts §429 – “One who employs an independent contractor to
perform services for another which are accepted in the reasonable belief
that the services are being rendered by the employer or by his servants, is
subject to liability for physical harm caused by the negligence of the contractor
in supplying such services, to the same extent as though the employer were
supplying them himself or by his servants.” (emphasis added)
38
19
Ostensible Agency

Patient looked to the hospital to provide care (con’t)

Dewald v. HCA Health Services of Tennessee, 251 S.W.3d 423
(Tenn. 2008) (adopting Restatement (2d) Torts §429)

Restatement (2d) Torts §429 – “One who employs an independent
contractor to perform services for another which are accepted in
the reasonable belief that the services are being rendered by the
employer or by his servants, is subject to liability for physical harm
caused by the negligence of the contractor in supplying such
services, to the same extent as though the employer were supplying
them himself or by his servants.” (emphasis added)
39
Corporate Negligence

Expanding form of entity liability

Started in 1965 –


Darling v. Charleston Comm. Hosp., 211 N.E.2d 253 (Ill. 1965)
Facility owes duty directly to the patient


Types of duties vary by state
Key case –



Thompson v. Nason Hosp., 591 A.2d 703 (Pa. 1991)
4 duties owed to the patient
Generally the claim covers:




Policies and procedures
Supervision
Credentialing
Facilities and equipment availability
40
20
Corporate Negligence

Recognized in a growing number of states

At least 29 states have some form of it


Alabama, Alaska, Arizona, California, Colorado, Connecticut, Florida, Georgia,
Hawaii, Illinois, Michigan, Missouri, Nebraska, Nevada, New Jersey, New
Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma,
Pennsylvania, Rhode Island, Tennessee, Texas, Washington, West Virginia,
Wisconsin and Wyoming
New Trend

Seeking application to physician practice groups


First as to the large, multi-specialty groups
Also as to single specialty groups
41
Corporate Negligence

Expanding to



Long Term Care
Post-Acute Care
Multi-specialty group practices

New example – Hyrcza v. West Penn Allegheny Health System,
978 A.2d 961 (Pa.Super. 2009)


Extended Corporate Negligence to a Medical Professional
Corporation that was specifically formed to manage the total health
care of its patients
Question – Will advent of ACO’s make this issue more acute?
42
21
Corporate Negligence

Claim is evolving

Larger health systems
Hospital
Holding Corp.
Parent Holding Corp
Practice Group
Parent Corp.
43
Corporate Negligence



Fees typically flow up to the corporate holding company
May be a large charitable organization or public corporation
Lawyers want to access the large funds at the highest level

Allege control by the parent organizations







Credentialing
Medical policies and procedures
Budgetary decisions impacting care
Appointment of management of the downstream corp. entities
Seek punitive damages against parent corps
Analyze marketing and web materials
Introduce evidence of annual gross revenue
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Corporate Negligence

Be prepared for requests of:











All radio and TV advertisements
All website materials
Facility signage
Staff and provider badges
Lab coat logos
Patient handouts
Yellow Pages advertisements
Patient Bill of Rights
Employee personnel files
Meeting minutes from multiple committees
Credentialing files for all providers at issue
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Corporate Negligence

How can we prevent this?

Strike a balance...





Review logos and signage
Review patient handouts
Revise advertising
Revise employee badging
Ensure that credentialing is
following guidelines
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Emotional Distress Claims

Typical elements



Plaintiff experienced the negligence, observed the negligence or
was in the “zone of danger” of the negligent acts
Plaintiff suffered emotional trauma
Plaintiff suffered physical manifestations of the emotional injury


See generally 16 Am. Jur. Proof of Facts 3d 189
Usually an adjunct to negligence claims

Used in tort reform states to increase potential severity of
noneconomic damages
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Emotional Distress Claims

For example



Wrongful Death claim – 72 year old
Typically limited damages
But…add this claim by the family for witnessing the malpractice,
and potential damages increase substantially
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Wrongful Life/Wrongful Birth

Several varieties of the claim






Failure of surgical sterilization
Failure to recommend genetic tests
Failure to properly interpret genetic tests
Some states have banned these types of claims
Damages can be in the tens of millions due to lifetime care
issues related to developmentally disabled children
See Wendy F. Hensel, J.D., The Disabling Impact of
Wrongful Birth and Wrongful Life Actions, 40 Harv. C.R.-C.L.
L. Rev. 141 (2005)
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And an interesting twist on a Wrongful Death case

Pino v. United States, 183 P.3d 1001 (Okla. 2008)




Oklahoma Supreme Court decision in a certified question from
the 10th Circuit
Stillbirth of a 20 week GA fetus
Held that Oklahoma’s Wrongful Death statute permitted a claim
for the death of a stillborn, non-viable fetus
Some states – “en ventre sa mere” doctrine

So long as fetus was alive at time of negligence, being stillborn
does not eliminate cause of action
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Defense Considerations
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Joint and Several Liability

Types



Joint and Several
Several
Joint and Several

Joint tortfeasors



two or more persons contributing to a single indivisible injury
Allows plaintiff to seek recovery of all of a judgment from only
one of the liable defendants


Source: Congressional Budget Office, The Effects of Tort
Reform: Evidence from the States, p. 2 (June 2004), available
at http://www.cbo.gov/ftpdocs/55xx/doc5549/Report.pdf
leaves the payor in the position of having to sue other responsible
co-defendants for contribution
Public policy – injured party should not have to chase the
money but instead should be fully compensated
Several Liability

Each tortfeasor liable only for its proportional share
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Joint and Several Liability

What is the problem with Joint and Several?


If $15 million verdict, hospital only 5% responsible and
physician defendant and her group have $2 million in coverage
Hospital’s true liability is $750,000


In several-only state, that is limit of liability
But...Once $2 million collected from doctor and group,
remaining $13 million can be collected from hospital


Hospital’s remedy - seek the $12.25 million from doctor and group
Problem –



Doctor and group don’t have the money!
Politically a problem to sue to recover from medical staff members
Creates significant excess exposure even in a case where
hospital has little liability
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Comparative and Contributory Negligence

What responsibility does the patient have?

Contributory negligence


Pure Comparative Negligence


If a plaintiff is at all responsible for any portion of the negligence,
then recovery is completely barred
Plaintiffs’ recovery is reduced by his or her comparative fault,
up to 99.99%
Hybrid Comparative Negligence

Plaintiff’s recovery is reduced by his or her fault, but if Plaintiff’s
fault exceeds a certain threshold, then no recovery

usually 50%, but some states differ, including precluding recovery
from tortfeasors less responsible than plaintiff
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27
Comparative and Contributory Negligence

What can we do to enhance this?

Tools




At-risk letters
Second Generation History Form
Narcotics contracts
Detailed instructions in plain English


Don’t expect patient to know what
“cloudy drainage” means
Also…will Reform, EMR and Patient
Portals shift responsibility to patients?
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Comparative and Contributory Negligence

More important in context of reform




32 million new “insureds”
Increase in preventative services and care
Elevation of standard of care?
Patient involvement and accountability



Use the tools
Partner with them
Don’t allow them to state “I didn’t know”
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Two Schools of Thought


Complete defense to a claim
So long as there is another recognized treatment for the
condition, choosing one over the other is not negligence

Choma v. Iyer, 871 A.2d 238, 241 (Pa.Super. 2005)



It “directs that where ‘competent medical authority is divided, a
physician will not be held responsible if in the exercise of his
judgment he followed a course of treatment advocated by a
considerable number of recognized and respected professionals in
his given area of expertise.’”
Limitations – applies to treatment options issues only
Some states recognize this defense, many do not
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Provider Liability Trends
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Will be driven by Reform
Some Key Points...
Mandates that most U.S. residents obtain
health insurance or pay a penalty!
 Expands eligibility for Medicaid to 133% of
the federal poverty level (currently $29,327)
 Links payment to quality benchmarks
 Refocuses on “primary care” as the nexus of
care management

STEVENS & LEE
Health Care Litigation and Risk Management Group
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Overall...leads to three key questions

Who will provide the care

Where will the care be provided

What care will be provided

The three “W’s” will frame the analysis for risk issues
STEVENS & LEE
Health Care Litigation and Risk Management Group
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30
Who will provide the care



Known shortage of primary care physicians
HCR provides incentives to increase number of primary care
physicians
Focus will be on mid-level providers



Their liability is the physicians’ liability
Will your clients move to leverage mid-levels?
Will you be prepared to advise them of the risks?






Training
Supervision
Regulatory requirements
Continuity of Care
Who is in charge?
Who does the patient think is in charge?
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Where will the care be provided?

Movement toward alternative types of practice settings

Employer-based clinics

Walk-in retail clinics







CVS, Walmart, RiteAid, and freestanding
Accountable Care Organizations
Patient Centered Medical Home
Home-based care
Cyber-care
Changing more traditional settings




Boeing, Pitney Bowes
The Hospital of Tomorrow
Surgical Centers
Community Health Centers
Potential risk issues




EMR expansion
Many different potential caregivers and multiple different settings
Confusion by the consumer regarding affiliation
Continuity of care
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What care will be provided

New mandates for coverage




Preventative care, mental health, dental, vision, etc.
May be standards-drive via Comparative Effectiveness
Linked with the delivery system (The “Where”)
Risk issues
 Failure to follow Comparative Effectiveness-driven
recommendations
 Will Plaintiff’s lawyers argue that economics are driving
treatment decisions?
 Never events becoming negligence per se?
 Coordination of care
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Other issues - EMR


Great tool…but with risks
Physician concerns

Click-off boxes



Creating “cookbook” medicine


Standard templates/clinical
guidelines may usurp “judgment
rule”
Prompts


Rapid clicking can lead to
erroneous clicks in adjacent boxes
Errors carried forward and
disseminated to all linked offices
If one ignores a pop-up or declines
to follow the advice without
explanation/justification, will act as
“plus”
On call...what’s your duty?
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Alternative Dispute Resolution


More cases going into mediation and arbitration
Mediation



Non-binding process using neutral third party to try to reach
settlement of claims
Almost always results in a payment
Some organizations have enacted voluntary program





AHLA ADR Program
Department of Veterans Affairs
Rush Presbyterian-St. Luke’s Medical Center
Abington Memorial Hospital
Arbitration

Types


Traditional
High/Low
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Alternative Dispute Resolution

Arbitration (con’t)

Considerations


How many on the panel (usually 1 or 3)
Set the rules via agreement






Rules of Civil Procedure
Rules of Evidence
Experts – on the papers or live
Witnesses – who and by whom may they be called
Incorporate state arbitration provisions where appropriate
High/Low will avoid databank reporting if defense verdict


Even though there is a payment, it is a contractual payment
See NPDB Guidebook, Chapter E, p. E-13

Available at http://www.npdb-hipdb.hrsa.gov/pubs/gb/NPDB_Guidebook.pdf
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Arbitration Clauses


Continues to evolve
Must review both state and Federal law


Decide which is best for your arbitration agreement
Federal Arbitration Act, 9 U.S.C.A. §1


Arbitration agreements that impede a “litigant...from effectively vindicating
her...statutory rights” are disfavored and unenforceable. Green Tree Fin.
Corp-Ala. v. Randolph, 531 U.S. 79, 90, 121 S.Ct 513, 522 (2000).
Arbitrations otherwise governed by the Federal Arbitration Act are
constrained by the state law of contract. First Options of Chicago, Inc. v.
Kaplan, 514 U.S. 938, 944, 115 S.Ct. 1920, 1924 (1995).
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Arbitration Clauses

Contract principles




Contract of adhesion
Inequity in bargaining powers
Unconscionability
Other issues





Timing of the agreement
Coverage of past issues or just forward looking
Mandatory or voluntary
Practical considerations
Strategic considerations
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In Conclusion…




Increased challenges to constitutionality of caps
Expansion of corporate liability
Provider liability evolving with reform efforts
Managed care-ish liability re-emerging
69
Stevens & Lee’s 225 lawyer and non-lawyer professionals assist health care providers and
organizations meet the challenges they face in a changing and consolidating industry. Our
Health Care Department is comprised of approximately 31 professionals – including 25
attorneys whose exclusive practice is in health care – who serve as general counsel to
acute care and specialty health care organizations, health systems, long-term care
providers and physician practices and regularly litigate cases in state and federal court.
Stevens & Lee’s health care litigation and risk management team has designed customized
risk reduction programs focused on both risk reduction and improved economics. Some of
those programs include “Five-Star Service Excellence”, Disclosure Training, Risk
Assessments, as well as the new EMR risk reduction program. Specialty specific programs
are available as well. All programs combine education, training, communication, as well as
documentation services.
For more information, please contact Todd R. Bartos, Esq.:
STEVENS & LEE
51 South Duke Street
P.O. Box 1594
Lancaster, PA 17608-1594
717-399-1723
[email protected]
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