Law & Medicine

This is the first of a two-part series.

Question: Which of the following statements regarding the Emergency Medical Treatment & Labor Act (EMTALA) is correct?

A. Deals with the standard of care in emergency medicine.

B. Provides safeguards for uninsured and nonpaying patients with an emergency medical condition.

C. Mandates uniform screening and treatment stabilization prior to transfer, irrespective of the hospital’s capability.

D. Is mostly directed at hospitals and emergency department staff doctors, but excludes on-call physicians.

E. Violations can result in fines, loss of Medicare provider participation, or even imprisonment.

Answer: B. In 1985, the CBS investigative news show “60 Minutes” ran an exposé on abuses in the emergency departments of U.S. hospitals, featuring the case of Eugene Barnes, a 32-year-old man brought to the Brookside Hospital emergency department (ED) in San Pablo, Calif., with a penetrating stab wound.

1. A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, cause serious impairment to bodily functions, or result in serious dysfunction of any bodily organ or part.

2. With respect to a pregnant woman who is having contractions, there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.³

Whether an emergency medical condition exists is determined by a medical screening exam (MSE). EMTALA is about a process directed at the well-being and safety of all patients with a medical emergency who come to the ED, defined as being licensed by the state or held out to the public as a place that provides care for emergency medical conditions. Hospital-based outpatient clinics that handle less than one-third of emergency visits and physician offices are exempt.

All patients who present to the ED seeking treatment are entitled to an MSE, and EDs are required to post such notification on their premises. A triage nurse may not be qualified to conduct the MSE unless he or she possesses special competencies, and has approval from the medical staff and the hospital’s governing body.

It is important that the MSE be documented soon after the patient’s arrival to determine if the medical condition warrants immediate treatment. It is definitely not acceptable to delay performing an MSE while awaiting information on insurance coverage, and one cannot “hold” the patient and delay stabilizing treatment because of the carrier’s insistence on using only certain approved facilities.

EMTALA requires that the screening exam be “appropriate,” but the statute does not define the term except to note that it is to be “within the capability of the hospital’s emergency department.” However, it is generally recognized that triage alone is insufficient, and the screening exam should be based on the patient’s symptoms and performed by a qualified person.

The important point is that it is uniformly applied, without discrimination, to all who seek treatment in the ED. The hospital itself is expected to have in place policies addressing the broad aspects of the screening process in a nondisparate manner.

The second key issue under the EMTALA statute concerns treatment and transfer.⁴ If an emergency medical condition exists, treatment must be provided until the emergency is resolved or stabilized.

Under the law, a patient is considered stable for transfer (or discharge) if the treating physician determines that no material deterioration is reasonably likely to occur during or as a result of the transfer between facilities. A receiving hospital is obligated to report any individual who has been transferred in an unstable condition in violation of EMTALA.

However, in the event the hospital does not have the capability to stabilize the emergency medical condition, EMTALA mandates an appropriate transfer, under prescribed conditions, to another hospital whose specialized capabilities obligate it to cooperate. The ED physician in the sending hospital will directly request acceptance of such a transfer. If the patient is unstable, the physician must certify that the medical benefits expected from the transfer outweigh the risks, unless the patient insists on a transfer in writing after being informed of the hospital’s obligations under EMTALA and the risks of transfer.

Furthermore, the transferring hospital must: 1. provide ongoing care within its capability until transfer to minimize transfer risks, 2. provide copies of medical records, 3. confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and 4. ensure that the transfer is made with qualified personnel and appropriate medical equipment.

On-call physicians at both transferring and accepting facilities are also subject to EMTALA. The U.S. Department of Health & Human Services’ Office of Inspector General (OIG) has promulgated rules regarding on-call physicians, even touching on reimbursement.

The American College of Emergency Physicians subscribes to the view that hospitals, medical staff, and payers share an ethical responsibility for the provision of emergency care, acknowledging that EDs require a reliable on-call system that provides for the availability of medical staff members for consultation and participation in the evaluation and treatment of emergency patients.⁵

Penalties for EMTALA violations include fines up to $50,000 per violation, and/or nullification of Medicare provider agreements. There is a 2-year statute of limitations for civil enforcement of any violation,⁶ carried out by the OIG and the Centers for Medicare & Medicaid Services (CMS).

A receiving facility, having suffered financial loss as a result of another hospital’s violation of EMTALA, can bring suit to recover damages, and patients may bring private lawsuits against hospitals, though not against physicians. EMTALA, being a civil rather than a criminal statute, does not impose any prison terms.

Investigations and citations by the OIG/CMS are common, with about half of all hospitals subjected to EMTALA investigations and a quarter receiving a violation citation over a recent 10-year period.

However, a recently published study covering 2002-2015 found that, despite 40% of investigations ending up with EMTALA violations, only 3% of investigations triggered fines – and none resulted in suspension of Medicare provider participation.⁷

There were a total of 192 settlements, or an average of 14 per year for the 4,000 hospitals in the United States. Most were for failing to provide screening (75%) and stabilization (42%). The vast majority of violations affected hospitals, and only eight physicians were involved.

Fines against hospitals and physicians totaled $6,357,000 (averages, $33,435 and $25,625, respectively). Patient dumping attributable to insurance or financial discrimination accounted for 15.6% of settlements.

References

1. 42 USC §1395dd et seq.

2. Chest. 2015 Jun;147(6):1691-6.

3. 42 USC §1395dd(a).

4. 42 USC §1395dd(b)(c).

5. “EMTALA and On-call Responsibility for Emergency Department Patients,” American College of Emergency Physicians.

6. 42 USC §1395dd(d).

7. West J Emerg Med. 2016 May;17(3):245-51.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

This is the first of a two-part series.

Question: Which of the following statements regarding the Emergency Medical Treatment & Labor Act (EMTALA) is correct?

A. Deals with the standard of care in emergency medicine.

B. Provides safeguards for uninsured and nonpaying patients with an emergency medical condition.

C. Mandates uniform screening and treatment stabilization prior to transfer, irrespective of the hospital’s capability.

D. Is mostly directed at hospitals and emergency department staff doctors, but excludes on-call physicians.

E. Violations can result in fines, loss of Medicare provider participation, or even imprisonment.

Answer: B. In 1985, the CBS investigative news show “60 Minutes” ran an exposé on abuses in the emergency departments of U.S. hospitals, featuring the case of Eugene Barnes, a 32-year-old man brought to the Brookside Hospital emergency department (ED) in San Pablo, Calif., with a penetrating stab wound.

1. A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, cause serious impairment to bodily functions, or result in serious dysfunction of any bodily organ or part.

2. With respect to a pregnant woman who is having contractions, there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.³

Whether an emergency medical condition exists is determined by a medical screening exam (MSE). EMTALA is about a process directed at the well-being and safety of all patients with a medical emergency who come to the ED, defined as being licensed by the state or held out to the public as a place that provides care for emergency medical conditions. Hospital-based outpatient clinics that handle less than one-third of emergency visits and physician offices are exempt.

All patients who present to the ED seeking treatment are entitled to an MSE, and EDs are required to post such notification on their premises. A triage nurse may not be qualified to conduct the MSE unless he or she possesses special competencies, and has approval from the medical staff and the hospital’s governing body.

It is important that the MSE be documented soon after the patient’s arrival to determine if the medical condition warrants immediate treatment. It is definitely not acceptable to delay performing an MSE while awaiting information on insurance coverage, and one cannot “hold” the patient and delay stabilizing treatment because of the carrier’s insistence on using only certain approved facilities.

EMTALA requires that the screening exam be “appropriate,” but the statute does not define the term except to note that it is to be “within the capability of the hospital’s emergency department.” However, it is generally recognized that triage alone is insufficient, and the screening exam should be based on the patient’s symptoms and performed by a qualified person.

The important point is that it is uniformly applied, without discrimination, to all who seek treatment in the ED. The hospital itself is expected to have in place policies addressing the broad aspects of the screening process in a nondisparate manner.

The second key issue under the EMTALA statute concerns treatment and transfer.⁴ If an emergency medical condition exists, treatment must be provided until the emergency is resolved or stabilized.

Under the law, a patient is considered stable for transfer (or discharge) if the treating physician determines that no material deterioration is reasonably likely to occur during or as a result of the transfer between facilities. A receiving hospital is obligated to report any individual who has been transferred in an unstable condition in violation of EMTALA.

However, in the event the hospital does not have the capability to stabilize the emergency medical condition, EMTALA mandates an appropriate transfer, under prescribed conditions, to another hospital whose specialized capabilities obligate it to cooperate. The ED physician in the sending hospital will directly request acceptance of such a transfer. If the patient is unstable, the physician must certify that the medical benefits expected from the transfer outweigh the risks, unless the patient insists on a transfer in writing after being informed of the hospital’s obligations under EMTALA and the risks of transfer.

Furthermore, the transferring hospital must: 1. provide ongoing care within its capability until transfer to minimize transfer risks, 2. provide copies of medical records, 3. confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and 4. ensure that the transfer is made with qualified personnel and appropriate medical equipment.

On-call physicians at both transferring and accepting facilities are also subject to EMTALA. The U.S. Department of Health & Human Services’ Office of Inspector General (OIG) has promulgated rules regarding on-call physicians, even touching on reimbursement.

The American College of Emergency Physicians subscribes to the view that hospitals, medical staff, and payers share an ethical responsibility for the provision of emergency care, acknowledging that EDs require a reliable on-call system that provides for the availability of medical staff members for consultation and participation in the evaluation and treatment of emergency patients.⁵

Penalties for EMTALA violations include fines up to $50,000 per violation, and/or nullification of Medicare provider agreements. There is a 2-year statute of limitations for civil enforcement of any violation,⁶ carried out by the OIG and the Centers for Medicare & Medicaid Services (CMS).

A receiving facility, having suffered financial loss as a result of another hospital’s violation of EMTALA, can bring suit to recover damages, and patients may bring private lawsuits against hospitals, though not against physicians. EMTALA, being a civil rather than a criminal statute, does not impose any prison terms.

Investigations and citations by the OIG/CMS are common, with about half of all hospitals subjected to EMTALA investigations and a quarter receiving a violation citation over a recent 10-year period.

However, a recently published study covering 2002-2015 found that, despite 40% of investigations ending up with EMTALA violations, only 3% of investigations triggered fines – and none resulted in suspension of Medicare provider participation.⁷

There were a total of 192 settlements, or an average of 14 per year for the 4,000 hospitals in the United States. Most were for failing to provide screening (75%) and stabilization (42%). The vast majority of violations affected hospitals, and only eight physicians were involved.

Fines against hospitals and physicians totaled $6,357,000 (averages, $33,435 and $25,625, respectively). Patient dumping attributable to insurance or financial discrimination accounted for 15.6% of settlements.

References

1. 42 USC §1395dd et seq.

2. Chest. 2015 Jun;147(6):1691-6.

3. 42 USC §1395dd(a).

4. 42 USC §1395dd(b)(c).

5. “EMTALA and On-call Responsibility for Emergency Department Patients,” American College of Emergency Physicians.

6. 42 USC §1395dd(d).

7. West J Emerg Med. 2016 May;17(3):245-51.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

This is the first of a two-part series.

Question: Which of the following statements regarding the Emergency Medical Treatment & Labor Act (EMTALA) is correct?

A. Deals with the standard of care in emergency medicine.

B. Provides safeguards for uninsured and nonpaying patients with an emergency medical condition.

C. Mandates uniform screening and treatment stabilization prior to transfer, irrespective of the hospital’s capability.

D. Is mostly directed at hospitals and emergency department staff doctors, but excludes on-call physicians.

E. Violations can result in fines, loss of Medicare provider participation, or even imprisonment.

Answer: B. In 1985, the CBS investigative news show “60 Minutes” ran an exposé on abuses in the emergency departments of U.S. hospitals, featuring the case of Eugene Barnes, a 32-year-old man brought to the Brookside Hospital emergency department (ED) in San Pablo, Calif., with a penetrating stab wound.

1. A medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain, psychiatric disturbances, and/or symptoms of substance abuse) such that the absence of immediate medical attention could reasonably be expected to result in placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy, cause serious impairment to bodily functions, or result in serious dysfunction of any bodily organ or part.

2. With respect to a pregnant woman who is having contractions, there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child.³

Whether an emergency medical condition exists is determined by a medical screening exam (MSE). EMTALA is about a process directed at the well-being and safety of all patients with a medical emergency who come to the ED, defined as being licensed by the state or held out to the public as a place that provides care for emergency medical conditions. Hospital-based outpatient clinics that handle less than one-third of emergency visits and physician offices are exempt.

All patients who present to the ED seeking treatment are entitled to an MSE, and EDs are required to post such notification on their premises. A triage nurse may not be qualified to conduct the MSE unless he or she possesses special competencies, and has approval from the medical staff and the hospital’s governing body.

It is important that the MSE be documented soon after the patient’s arrival to determine if the medical condition warrants immediate treatment. It is definitely not acceptable to delay performing an MSE while awaiting information on insurance coverage, and one cannot “hold” the patient and delay stabilizing treatment because of the carrier’s insistence on using only certain approved facilities.

EMTALA requires that the screening exam be “appropriate,” but the statute does not define the term except to note that it is to be “within the capability of the hospital’s emergency department.” However, it is generally recognized that triage alone is insufficient, and the screening exam should be based on the patient’s symptoms and performed by a qualified person.

The important point is that it is uniformly applied, without discrimination, to all who seek treatment in the ED. The hospital itself is expected to have in place policies addressing the broad aspects of the screening process in a nondisparate manner.

The second key issue under the EMTALA statute concerns treatment and transfer.⁴ If an emergency medical condition exists, treatment must be provided until the emergency is resolved or stabilized.

Under the law, a patient is considered stable for transfer (or discharge) if the treating physician determines that no material deterioration is reasonably likely to occur during or as a result of the transfer between facilities. A receiving hospital is obligated to report any individual who has been transferred in an unstable condition in violation of EMTALA.

However, in the event the hospital does not have the capability to stabilize the emergency medical condition, EMTALA mandates an appropriate transfer, under prescribed conditions, to another hospital whose specialized capabilities obligate it to cooperate. The ED physician in the sending hospital will directly request acceptance of such a transfer. If the patient is unstable, the physician must certify that the medical benefits expected from the transfer outweigh the risks, unless the patient insists on a transfer in writing after being informed of the hospital’s obligations under EMTALA and the risks of transfer.

Furthermore, the transferring hospital must: 1. provide ongoing care within its capability until transfer to minimize transfer risks, 2. provide copies of medical records, 3. confirm that the receiving facility has space and qualified personnel to treat the condition and has agreed to accept the transfer, and 4. ensure that the transfer is made with qualified personnel and appropriate medical equipment.

On-call physicians at both transferring and accepting facilities are also subject to EMTALA. The U.S. Department of Health & Human Services’ Office of Inspector General (OIG) has promulgated rules regarding on-call physicians, even touching on reimbursement.

The American College of Emergency Physicians subscribes to the view that hospitals, medical staff, and payers share an ethical responsibility for the provision of emergency care, acknowledging that EDs require a reliable on-call system that provides for the availability of medical staff members for consultation and participation in the evaluation and treatment of emergency patients.⁵

Penalties for EMTALA violations include fines up to $50,000 per violation, and/or nullification of Medicare provider agreements. There is a 2-year statute of limitations for civil enforcement of any violation,⁶ carried out by the OIG and the Centers for Medicare & Medicaid Services (CMS).

A receiving facility, having suffered financial loss as a result of another hospital’s violation of EMTALA, can bring suit to recover damages, and patients may bring private lawsuits against hospitals, though not against physicians. EMTALA, being a civil rather than a criminal statute, does not impose any prison terms.

Investigations and citations by the OIG/CMS are common, with about half of all hospitals subjected to EMTALA investigations and a quarter receiving a violation citation over a recent 10-year period.

However, a recently published study covering 2002-2015 found that, despite 40% of investigations ending up with EMTALA violations, only 3% of investigations triggered fines – and none resulted in suspension of Medicare provider participation.⁷

There were a total of 192 settlements, or an average of 14 per year for the 4,000 hospitals in the United States. Most were for failing to provide screening (75%) and stabilization (42%). The vast majority of violations affected hospitals, and only eight physicians were involved.

Fines against hospitals and physicians totaled $6,357,000 (averages, $33,435 and $25,625, respectively). Patient dumping attributable to insurance or financial discrimination accounted for 15.6% of settlements.

References

1. 42 USC §1395dd et seq.

2. Chest. 2015 Jun;147(6):1691-6.

3. 42 USC §1395dd(a).

4. 42 USC §1395dd(b)(c).

5. “EMTALA and On-call Responsibility for Emergency Department Patients,” American College of Emergency Physicians.

6. 42 USC §1395dd(d).

7. West J Emerg Med. 2016 May;17(3):245-51.

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the third of a three-part series.)

Question: The state medical board is requesting the medical records of an angry patient who has filed a formal complaint alleging incompetent care. Your immediate impulse is to rush off a letter defending your treatment – and to include a sarcastic remark about ingratitude.

However, you decided not to respond, choosing to await the scheduled interview with the board investigator. To your surprise, he turned out to be warm and friendly, and his relative youth reminded you of your son. Letting your guard down, you spoke freely during the meeting and showed him the medical records. Later, you appeared at the formal board hearing without legal counsel, as the complainant had not suffered any injury while under your care. Under this scenario, which of the following statements is best?

A. You must never respond in writing to any board inquiry.

B. You should have called your insurance carrier immediately.

C. You trusted the investigator because what you told him could not be introduced as evidence.

D. You correctly assumed that, without injuries, there is no liability.

E. You did not insist on having an attorney, because this is not part of your due process rights.

Answer: B. Who gets into trouble with medical disciplinary boards? In a California study,¹ the authors concluded that male physicians were nearly three times as likely to as women physicians, and those who were non–board certified twice as likely to as their board-certified counterparts. Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk.

It is true that many board complaints are dismissed and never investigated, but the number of state licensure actions in 2013 was almost four times greater than the number of malpractice payouts. Moreover, board actions against a doctor, unlike a malpractice lawsuit, are premised on substandard or unethical conduct, and do not require a showing of actual patient harm.

A recent news article bemoans the travails of a medical board encounter.² According to a 2009 report, one of every eight physicians in California was being reported to the board each year, with a quarter of complaints leading to an investigation. In turn, a quarter of investigated complaints led to disciplinary proceedings against the physician.

A medical board investigation begins with a complaint lodged by a patient or some other party such as a pharmacist, nurse, or hospital peer review committee. Some states – e.g., California, Georgia, and Maryland – allow complaints to be anonymous, and many states now allow online submissions, whose ease may be expected to increase the number of filings. Oklahoma, for example, saw its board complaints rise by 40% in the 2 years after permitting this option.

Some complaints such as rudeness and disputes over fees may seem like a minor nuisance, but they can mushroom into new and more serious charges. The medical records may reveal other potential misconduct, such as delinquent record keeping or failure to obtain informed consent.

It is therefore prudent to treat all complaints seriously. A written response is necessary, but it must be cowritten with your attorney. Immediately contact your malpractice insurance carrier once an investigator approaches you, or upon notification by the medical board. Most malpractice policies include coverage for medical board investigations.

The simple rule is not to discuss with anyone – including (especially) the complainant – and await a call from the attorney assigned to you. Better yet, ask for an attorney whose skills you are aware of. Make sure he/she is experienced with board proceedings and not just malpractice litigation. There are legal technicalities that may be of importance, such as statutes of limitations barring board actions or the timely filing of an appeal. Everything should flow from here. The lawyer’s advice will most likely be: “Don’t speak to anyone, including your colleagues; don’t contact the patient or family; and don’t release any records without first consulting me.”

You should together draft a response letter. Whereas the attorney will be attentive to the legal ramifications, only you as the doctor can provide the clinical knowledge, context, and empathy. In formulating any written response where patient care is at issue, heed the following principles:

1. Be honest. Truth always surfaces in due course. Candor and trustworthiness are virtues expected of all doctors.

2. Be accurate. Review carefully all relevant medical records. Pay compulsive attention to factual accuracy.

3. Be focused. Do not ramble on and on regarding unrelated or tangential issues. Focus on what the complaint is about. No one is interested in your views regarding your philosophy of medical practice or the health care system – they do not belong in a complaint response letter.

4. Be humble. Arrogance at this stage may prove disastrous. Adopt a contrite and humble tone. Blame no one, especially the patient.

5. Be a patient advocate. Show that patient well-being is always your first and last concern.

In the preliminary stages, a board investigator may call the doctor, typically taking a friendly and casual approach, and this may lull the physician into saying more than is necessary or releasing the medical records. The shared information can come back to haunt the doctor when it is disclosed in a subsequent hearing.

In some situations, the board may offer an informal settlement conference to resolve the issue and obtain a “consent agreement” from the doctor. Depending on the facts – and the proposed settlement terms – your attorney may instead advise proceeding to a formal hearing to present exculpatory evidence and to confront the complainant.

Physicians are guaranteed the right of due process during an investigation. Timely notice, the right to a hearing, to confront the evidence, and to have legal representation are the basic due process rights. And boards must treat the physician fairly and reasonably.

However, where public harm is an imminent risk, boards have the power to immediately institute a temporary suspension of the doctor’s right to practice. Examples warranting such summary suspensions may include sexual misconduct, inappropriate opioid prescriptions, egregious negligent conduct, or impairment from alcohol or drug abuse.

Boards face a dilemma over these cases, because they need to balance depriving a doctor of due process rights, albeit temporarily, against allowing a bad doctor to pose a clear and present threat to the public. In Texas, 32 summary suspensions took place in 2011, a figure that fell to 13 in 2014.

The aggrieved physician typically has the right to appeal an adverse board decision to the courts, although “courts have no inherent appellate jurisdiction over official acts of administrative agencies except where the legislature has made some statutory provision for judicial review.”³

For example, under California’s Code of Civil Procedure section 1094.5, one has the right to have a Superior Court judge review the board’s decision to determine if there has been an abuse of discretion.

Despite the fact that board administrative proceedings are quasi criminal in nature, most states require only a “preponderance of evidence” to find the doctor guilty. This is the evidentiary standard used in civil cases where only monetary damages are at stake, yet it is used in determining whether a doctor would lose the liberty to practice his or her profession.

However, some jurisdictions – such as California, Florida, and Illinois – call for a higher threshold of guilt, requiring proof with “clear and convincing evidence.”

Finally, in the United Kingdom and countries such as Singapore, a guilty decision requires even more evidence – i.e., proof “beyond reasonable doubt” – which is the threshold required in criminal prosecutions.

References

1. Arch Intern Med. 2004 Mar 22;164(6):653-8.

2. Leigh Page. The Black Cloud of a Medical Board Investigation. Medscape, Dec 23, 2015.

3. Crane v. Cont’l Tel. Co. of Cal., 775 P.2d 705 (Nev. 1989).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the third of a three-part series.)

Question: The state medical board is requesting the medical records of an angry patient who has filed a formal complaint alleging incompetent care. Your immediate impulse is to rush off a letter defending your treatment – and to include a sarcastic remark about ingratitude.

However, you decided not to respond, choosing to await the scheduled interview with the board investigator. To your surprise, he turned out to be warm and friendly, and his relative youth reminded you of your son. Letting your guard down, you spoke freely during the meeting and showed him the medical records. Later, you appeared at the formal board hearing without legal counsel, as the complainant had not suffered any injury while under your care. Under this scenario, which of the following statements is best?

A. You must never respond in writing to any board inquiry.

B. You should have called your insurance carrier immediately.

C. You trusted the investigator because what you told him could not be introduced as evidence.

D. You correctly assumed that, without injuries, there is no liability.

E. You did not insist on having an attorney, because this is not part of your due process rights.

Answer: B. Who gets into trouble with medical disciplinary boards? In a California study,¹ the authors concluded that male physicians were nearly three times as likely to as women physicians, and those who were non–board certified twice as likely to as their board-certified counterparts. Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk.

It is true that many board complaints are dismissed and never investigated, but the number of state licensure actions in 2013 was almost four times greater than the number of malpractice payouts. Moreover, board actions against a doctor, unlike a malpractice lawsuit, are premised on substandard or unethical conduct, and do not require a showing of actual patient harm.

A recent news article bemoans the travails of a medical board encounter.² According to a 2009 report, one of every eight physicians in California was being reported to the board each year, with a quarter of complaints leading to an investigation. In turn, a quarter of investigated complaints led to disciplinary proceedings against the physician.

A medical board investigation begins with a complaint lodged by a patient or some other party such as a pharmacist, nurse, or hospital peer review committee. Some states – e.g., California, Georgia, and Maryland – allow complaints to be anonymous, and many states now allow online submissions, whose ease may be expected to increase the number of filings. Oklahoma, for example, saw its board complaints rise by 40% in the 2 years after permitting this option.

Some complaints such as rudeness and disputes over fees may seem like a minor nuisance, but they can mushroom into new and more serious charges. The medical records may reveal other potential misconduct, such as delinquent record keeping or failure to obtain informed consent.

It is therefore prudent to treat all complaints seriously. A written response is necessary, but it must be cowritten with your attorney. Immediately contact your malpractice insurance carrier once an investigator approaches you, or upon notification by the medical board. Most malpractice policies include coverage for medical board investigations.

The simple rule is not to discuss with anyone – including (especially) the complainant – and await a call from the attorney assigned to you. Better yet, ask for an attorney whose skills you are aware of. Make sure he/she is experienced with board proceedings and not just malpractice litigation. There are legal technicalities that may be of importance, such as statutes of limitations barring board actions or the timely filing of an appeal. Everything should flow from here. The lawyer’s advice will most likely be: “Don’t speak to anyone, including your colleagues; don’t contact the patient or family; and don’t release any records without first consulting me.”

You should together draft a response letter. Whereas the attorney will be attentive to the legal ramifications, only you as the doctor can provide the clinical knowledge, context, and empathy. In formulating any written response where patient care is at issue, heed the following principles:

1. Be honest. Truth always surfaces in due course. Candor and trustworthiness are virtues expected of all doctors.

2. Be accurate. Review carefully all relevant medical records. Pay compulsive attention to factual accuracy.

3. Be focused. Do not ramble on and on regarding unrelated or tangential issues. Focus on what the complaint is about. No one is interested in your views regarding your philosophy of medical practice or the health care system – they do not belong in a complaint response letter.

4. Be humble. Arrogance at this stage may prove disastrous. Adopt a contrite and humble tone. Blame no one, especially the patient.

5. Be a patient advocate. Show that patient well-being is always your first and last concern.

In the preliminary stages, a board investigator may call the doctor, typically taking a friendly and casual approach, and this may lull the physician into saying more than is necessary or releasing the medical records. The shared information can come back to haunt the doctor when it is disclosed in a subsequent hearing.

In some situations, the board may offer an informal settlement conference to resolve the issue and obtain a “consent agreement” from the doctor. Depending on the facts – and the proposed settlement terms – your attorney may instead advise proceeding to a formal hearing to present exculpatory evidence and to confront the complainant.

Physicians are guaranteed the right of due process during an investigation. Timely notice, the right to a hearing, to confront the evidence, and to have legal representation are the basic due process rights. And boards must treat the physician fairly and reasonably.

However, where public harm is an imminent risk, boards have the power to immediately institute a temporary suspension of the doctor’s right to practice. Examples warranting such summary suspensions may include sexual misconduct, inappropriate opioid prescriptions, egregious negligent conduct, or impairment from alcohol or drug abuse.

Boards face a dilemma over these cases, because they need to balance depriving a doctor of due process rights, albeit temporarily, against allowing a bad doctor to pose a clear and present threat to the public. In Texas, 32 summary suspensions took place in 2011, a figure that fell to 13 in 2014.

The aggrieved physician typically has the right to appeal an adverse board decision to the courts, although “courts have no inherent appellate jurisdiction over official acts of administrative agencies except where the legislature has made some statutory provision for judicial review.”³

For example, under California’s Code of Civil Procedure section 1094.5, one has the right to have a Superior Court judge review the board’s decision to determine if there has been an abuse of discretion.

Despite the fact that board administrative proceedings are quasi criminal in nature, most states require only a “preponderance of evidence” to find the doctor guilty. This is the evidentiary standard used in civil cases where only monetary damages are at stake, yet it is used in determining whether a doctor would lose the liberty to practice his or her profession.

However, some jurisdictions – such as California, Florida, and Illinois – call for a higher threshold of guilt, requiring proof with “clear and convincing evidence.”

Finally, in the United Kingdom and countries such as Singapore, a guilty decision requires even more evidence – i.e., proof “beyond reasonable doubt” – which is the threshold required in criminal prosecutions.

References

1. Arch Intern Med. 2004 Mar 22;164(6):653-8.

2. Leigh Page. The Black Cloud of a Medical Board Investigation. Medscape, Dec 23, 2015.

3. Crane v. Cont’l Tel. Co. of Cal., 775 P.2d 705 (Nev. 1989).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the third of a three-part series.)

Question: The state medical board is requesting the medical records of an angry patient who has filed a formal complaint alleging incompetent care. Your immediate impulse is to rush off a letter defending your treatment – and to include a sarcastic remark about ingratitude.

However, you decided not to respond, choosing to await the scheduled interview with the board investigator. To your surprise, he turned out to be warm and friendly, and his relative youth reminded you of your son. Letting your guard down, you spoke freely during the meeting and showed him the medical records. Later, you appeared at the formal board hearing without legal counsel, as the complainant had not suffered any injury while under your care. Under this scenario, which of the following statements is best?

A. You must never respond in writing to any board inquiry.

B. You should have called your insurance carrier immediately.

C. You trusted the investigator because what you told him could not be introduced as evidence.

D. You correctly assumed that, without injuries, there is no liability.

E. You did not insist on having an attorney, because this is not part of your due process rights.

Answer: B. Who gets into trouble with medical disciplinary boards? In a California study,¹ the authors concluded that male physicians were nearly three times as likely to as women physicians, and those who were non–board certified twice as likely to as their board-certified counterparts. Obstetricians, gynecologists, family physicians, general practitioners, and psychiatrists were more likely than internists, whereas pediatricians and radiologists were the least likely. Age had a smaller influence (elevated risk with increasing age), and foreign medical graduates also had an increased risk.

It is true that many board complaints are dismissed and never investigated, but the number of state licensure actions in 2013 was almost four times greater than the number of malpractice payouts. Moreover, board actions against a doctor, unlike a malpractice lawsuit, are premised on substandard or unethical conduct, and do not require a showing of actual patient harm.

A recent news article bemoans the travails of a medical board encounter.² According to a 2009 report, one of every eight physicians in California was being reported to the board each year, with a quarter of complaints leading to an investigation. In turn, a quarter of investigated complaints led to disciplinary proceedings against the physician.

A medical board investigation begins with a complaint lodged by a patient or some other party such as a pharmacist, nurse, or hospital peer review committee. Some states – e.g., California, Georgia, and Maryland – allow complaints to be anonymous, and many states now allow online submissions, whose ease may be expected to increase the number of filings. Oklahoma, for example, saw its board complaints rise by 40% in the 2 years after permitting this option.

Some complaints such as rudeness and disputes over fees may seem like a minor nuisance, but they can mushroom into new and more serious charges. The medical records may reveal other potential misconduct, such as delinquent record keeping or failure to obtain informed consent.

It is therefore prudent to treat all complaints seriously. A written response is necessary, but it must be cowritten with your attorney. Immediately contact your malpractice insurance carrier once an investigator approaches you, or upon notification by the medical board. Most malpractice policies include coverage for medical board investigations.

The simple rule is not to discuss with anyone – including (especially) the complainant – and await a call from the attorney assigned to you. Better yet, ask for an attorney whose skills you are aware of. Make sure he/she is experienced with board proceedings and not just malpractice litigation. There are legal technicalities that may be of importance, such as statutes of limitations barring board actions or the timely filing of an appeal. Everything should flow from here. The lawyer’s advice will most likely be: “Don’t speak to anyone, including your colleagues; don’t contact the patient or family; and don’t release any records without first consulting me.”

You should together draft a response letter. Whereas the attorney will be attentive to the legal ramifications, only you as the doctor can provide the clinical knowledge, context, and empathy. In formulating any written response where patient care is at issue, heed the following principles:

1. Be honest. Truth always surfaces in due course. Candor and trustworthiness are virtues expected of all doctors.

2. Be accurate. Review carefully all relevant medical records. Pay compulsive attention to factual accuracy.

3. Be focused. Do not ramble on and on regarding unrelated or tangential issues. Focus on what the complaint is about. No one is interested in your views regarding your philosophy of medical practice or the health care system – they do not belong in a complaint response letter.

4. Be humble. Arrogance at this stage may prove disastrous. Adopt a contrite and humble tone. Blame no one, especially the patient.

5. Be a patient advocate. Show that patient well-being is always your first and last concern.

In the preliminary stages, a board investigator may call the doctor, typically taking a friendly and casual approach, and this may lull the physician into saying more than is necessary or releasing the medical records. The shared information can come back to haunt the doctor when it is disclosed in a subsequent hearing.

In some situations, the board may offer an informal settlement conference to resolve the issue and obtain a “consent agreement” from the doctor. Depending on the facts – and the proposed settlement terms – your attorney may instead advise proceeding to a formal hearing to present exculpatory evidence and to confront the complainant.

Physicians are guaranteed the right of due process during an investigation. Timely notice, the right to a hearing, to confront the evidence, and to have legal representation are the basic due process rights. And boards must treat the physician fairly and reasonably.

However, where public harm is an imminent risk, boards have the power to immediately institute a temporary suspension of the doctor’s right to practice. Examples warranting such summary suspensions may include sexual misconduct, inappropriate opioid prescriptions, egregious negligent conduct, or impairment from alcohol or drug abuse.

Boards face a dilemma over these cases, because they need to balance depriving a doctor of due process rights, albeit temporarily, against allowing a bad doctor to pose a clear and present threat to the public. In Texas, 32 summary suspensions took place in 2011, a figure that fell to 13 in 2014.

The aggrieved physician typically has the right to appeal an adverse board decision to the courts, although “courts have no inherent appellate jurisdiction over official acts of administrative agencies except where the legislature has made some statutory provision for judicial review.”³

For example, under California’s Code of Civil Procedure section 1094.5, one has the right to have a Superior Court judge review the board’s decision to determine if there has been an abuse of discretion.

Despite the fact that board administrative proceedings are quasi criminal in nature, most states require only a “preponderance of evidence” to find the doctor guilty. This is the evidentiary standard used in civil cases where only monetary damages are at stake, yet it is used in determining whether a doctor would lose the liberty to practice his or her profession.

However, some jurisdictions – such as California, Florida, and Illinois – call for a higher threshold of guilt, requiring proof with “clear and convincing evidence.”

Finally, in the United Kingdom and countries such as Singapore, a guilty decision requires even more evidence – i.e., proof “beyond reasonable doubt” – which is the threshold required in criminal prosecutions.

References

1. Arch Intern Med. 2004 Mar 22;164(6):653-8.

2. Leigh Page. The Black Cloud of a Medical Board Investigation. Medscape, Dec 23, 2015.

3. Crane v. Cont’l Tel. Co. of Cal., 775 P.2d 705 (Nev. 1989).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the second in a three-part series.)

Question: A penicillin-allergic patient died from massive hemolysis after receiving the antibiotic ceftriaxone (Rocephin). The plaintiff alleged that the defendant was grossly negligent in administering the drug and subsequently refusing to treat or to readmit the decedent.

If this case is referred to the state’s medical board, which of the following statements is best?

A. The outcome depends on the jurisdiction.

B. Substandard medical care is not part of professional misconduct, which is what a medical board is supposed to look at.

C. Disciplinary action requires a simple showing of ordinary negligence.

D. Disciplinary action requires more than one act of ordinary negligence.

E. Disciplinary action requires proof of gross negligence.

Answer: A. Under the Medical Practice Act, each state authorizes its medical board to issue licenses and regulate physician practice. Professional misconduct is about unprofessional behavior, and covers both ethical breach and substandard care.

Medical boards do not typically adjudicate single acts of ordinary negligence, leaving them instead to the tort system and civil lawsuits. However, grossly culpable misconduct – even in a single instance – or a recurring pattern of ordinary negligence can come under medical board review. And it is common practice for boards to use malpractice data as a tool to trigger further investigations, such as a certain number of malpractice settlements over a given span of time.

States vary somewhat over when to investigate a complaint of alleged substandard practice. In California, the term “unprofessional conduct” is codified under section 2234 of the California Business and Professions Code, and the errant doctor is subject to disciplinary sanction if there is gross negligence, repeated negligent acts (defined as two or more negligent acts or omissions), or incompetence.

In Hawaii, the disciplinary law is set up under Hawaii Revised Statutes section 453-8, which lists 15 situations of wrongdoing. In the malpractice category, Hawaii’s law uses the terms hazardous misconduct, hazardous negligence, incompetence, or multiple instances of negligence.

The state of New York defines professional misconduct by reference to a comprehensive list of 49 categories under section 6530, which include gross incompetence or gross negligence on a single occasion, or negligence or incompetence on more than one occasion.

However, Maryland is an example of a jurisdiction that does not require gross or repeated negligence; the state considers any failure to meet the appropriate medical standards as professional misconduct.¹

But what constitutes gross negligence?

The vast majority of medical malpractice lawsuits allege ordinary, not gross negligence. Ordinary negligence is a well-defined legal term, as illustrated in Prosser’s Textbook on Torts: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing.”²

In contrast, there is no universal definition for the term gross negligence. Everyone recognizes it denotes a greater degree of culpability than ordinary negligence, but how much greater?

According to the California Supreme Court, gross negligence may be said to be “the want of even scant care or an extreme departure from the ordinary standard of conduct.”³ The law in Texas stipulates: “Gross negligence means more than momentary thoughtlessness, inadvertence, or error of judgment. It means an entire want of care as to establish that the act or omission was the result of actual, conscious indifference to the rights, safety, and welfare of the person affected.”⁴

Examples in case law of gross negligence (or where punitive damages were awarded, which usually signify egregious conduct) include a doctor’s wanton failure to provide follow-up care for a child who developed fever and gangrenous toes following foot surgery,⁵ the prescription of an excessive number of birth control pills (more than 1,000 pills within a time period when less than 200 were sufficient) with resulting liver complications,⁶ and leaving behind a 6.5-inch clamp in a surgical incision.⁷

On the other hand, a Connecticut court (which decided the case in the hypothetical above) ruled that, under the facts, the defendant’s conduct did not meet the high threshold of egregiousness that defines gross negligence.⁸

As in any malpractice lawsuit, a medical board investigation involves determining whether the accused physician has met the standard of care in his or her specialty, and boards usually look to expert community physicians to articulate that requisite standard.

Compared with a civil lawsuit, a disciplinary hearing has the physician at a disadvantage. Medical board complaints are easier to file; the complaining party does not need an attorney; impartial expert witnesses are the responsibility of the board, not the complainant; and no patient injury needs to be shown.

Furthermore, a settlement is rarely reached or negotiated, and penalties are potentially far more serious, such as public posting of an adverse decision and restriction or actual loss of licensure.

Reputational loss also is arguably more devastating with board censure, because an adverse action taken by a medical board indicates a violation of the Medical Practice Act. In contrast, malpractice settlements or verdicts are regularly viewed as unreliable measures of a physician’s competence.

Still, two features work in favor of the doctor facing a board hearing. First, the misconduct typically has to be recurrent or grossly negligent, rather than an isolated case of carelessness. And second, some boards (only a small minority) require evidentiary proof of fault to be “clear and convincing,” instead of the familiar “more probable than not” standard that is used in a civil negligence suit. This makes it theoretically harder to reach a finding of culpability against the doctor.

References

1. Md. Code Ann. Health Occ. section 14-404.

2. Prosser and Keeton on Torts, 5th ed., 1984.

3. Van Meter v. Bent Construction Co., 297 P.2d 644 (Cal. 1956).

4. Texas Civil Practice & Remedies Code section 41.001(7).

5. Dempsey v. Phelps, 700 So.2d 1340 (Ala. 1997).

6. Jackson v. Taylor, 912 F.2d 795 (5th Cir. 1990).

7. Fox v. Oklahoma Memorial Hospital, 774 P.2d 459 (Ok. 1989).

8. Boone v. William W. Backus Hospital, 864 A.2d 1 (Conn. 2005).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the second in a three-part series.)

Question: A penicillin-allergic patient died from massive hemolysis after receiving the antibiotic ceftriaxone (Rocephin). The plaintiff alleged that the defendant was grossly negligent in administering the drug and subsequently refusing to treat or to readmit the decedent.

If this case is referred to the state’s medical board, which of the following statements is best?

A. The outcome depends on the jurisdiction.

B. Substandard medical care is not part of professional misconduct, which is what a medical board is supposed to look at.

C. Disciplinary action requires a simple showing of ordinary negligence.

D. Disciplinary action requires more than one act of ordinary negligence.

E. Disciplinary action requires proof of gross negligence.

Answer: A. Under the Medical Practice Act, each state authorizes its medical board to issue licenses and regulate physician practice. Professional misconduct is about unprofessional behavior, and covers both ethical breach and substandard care.

Medical boards do not typically adjudicate single acts of ordinary negligence, leaving them instead to the tort system and civil lawsuits. However, grossly culpable misconduct – even in a single instance – or a recurring pattern of ordinary negligence can come under medical board review. And it is common practice for boards to use malpractice data as a tool to trigger further investigations, such as a certain number of malpractice settlements over a given span of time.

States vary somewhat over when to investigate a complaint of alleged substandard practice. In California, the term “unprofessional conduct” is codified under section 2234 of the California Business and Professions Code, and the errant doctor is subject to disciplinary sanction if there is gross negligence, repeated negligent acts (defined as two or more negligent acts or omissions), or incompetence.

In Hawaii, the disciplinary law is set up under Hawaii Revised Statutes section 453-8, which lists 15 situations of wrongdoing. In the malpractice category, Hawaii’s law uses the terms hazardous misconduct, hazardous negligence, incompetence, or multiple instances of negligence.

The state of New York defines professional misconduct by reference to a comprehensive list of 49 categories under section 6530, which include gross incompetence or gross negligence on a single occasion, or negligence or incompetence on more than one occasion.

However, Maryland is an example of a jurisdiction that does not require gross or repeated negligence; the state considers any failure to meet the appropriate medical standards as professional misconduct.¹

But what constitutes gross negligence?

The vast majority of medical malpractice lawsuits allege ordinary, not gross negligence. Ordinary negligence is a well-defined legal term, as illustrated in Prosser’s Textbook on Torts: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing.”²

In contrast, there is no universal definition for the term gross negligence. Everyone recognizes it denotes a greater degree of culpability than ordinary negligence, but how much greater?

According to the California Supreme Court, gross negligence may be said to be “the want of even scant care or an extreme departure from the ordinary standard of conduct.”³ The law in Texas stipulates: “Gross negligence means more than momentary thoughtlessness, inadvertence, or error of judgment. It means an entire want of care as to establish that the act or omission was the result of actual, conscious indifference to the rights, safety, and welfare of the person affected.”⁴

Examples in case law of gross negligence (or where punitive damages were awarded, which usually signify egregious conduct) include a doctor’s wanton failure to provide follow-up care for a child who developed fever and gangrenous toes following foot surgery,⁵ the prescription of an excessive number of birth control pills (more than 1,000 pills within a time period when less than 200 were sufficient) with resulting liver complications,⁶ and leaving behind a 6.5-inch clamp in a surgical incision.⁷

On the other hand, a Connecticut court (which decided the case in the hypothetical above) ruled that, under the facts, the defendant’s conduct did not meet the high threshold of egregiousness that defines gross negligence.⁸

As in any malpractice lawsuit, a medical board investigation involves determining whether the accused physician has met the standard of care in his or her specialty, and boards usually look to expert community physicians to articulate that requisite standard.

Compared with a civil lawsuit, a disciplinary hearing has the physician at a disadvantage. Medical board complaints are easier to file; the complaining party does not need an attorney; impartial expert witnesses are the responsibility of the board, not the complainant; and no patient injury needs to be shown.

Furthermore, a settlement is rarely reached or negotiated, and penalties are potentially far more serious, such as public posting of an adverse decision and restriction or actual loss of licensure.

Reputational loss also is arguably more devastating with board censure, because an adverse action taken by a medical board indicates a violation of the Medical Practice Act. In contrast, malpractice settlements or verdicts are regularly viewed as unreliable measures of a physician’s competence.

Still, two features work in favor of the doctor facing a board hearing. First, the misconduct typically has to be recurrent or grossly negligent, rather than an isolated case of carelessness. And second, some boards (only a small minority) require evidentiary proof of fault to be “clear and convincing,” instead of the familiar “more probable than not” standard that is used in a civil negligence suit. This makes it theoretically harder to reach a finding of culpability against the doctor.

References

1. Md. Code Ann. Health Occ. section 14-404.

2. Prosser and Keeton on Torts, 5th ed., 1984.

3. Van Meter v. Bent Construction Co., 297 P.2d 644 (Cal. 1956).

4. Texas Civil Practice & Remedies Code section 41.001(7).

5. Dempsey v. Phelps, 700 So.2d 1340 (Ala. 1997).

6. Jackson v. Taylor, 912 F.2d 795 (5th Cir. 1990).

7. Fox v. Oklahoma Memorial Hospital, 774 P.2d 459 (Ok. 1989).

8. Boone v. William W. Backus Hospital, 864 A.2d 1 (Conn. 2005).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the second in a three-part series.)

Question: A penicillin-allergic patient died from massive hemolysis after receiving the antibiotic ceftriaxone (Rocephin). The plaintiff alleged that the defendant was grossly negligent in administering the drug and subsequently refusing to treat or to readmit the decedent.

If this case is referred to the state’s medical board, which of the following statements is best?

A. The outcome depends on the jurisdiction.

B. Substandard medical care is not part of professional misconduct, which is what a medical board is supposed to look at.

C. Disciplinary action requires a simple showing of ordinary negligence.

D. Disciplinary action requires more than one act of ordinary negligence.

E. Disciplinary action requires proof of gross negligence.

Answer: A. Under the Medical Practice Act, each state authorizes its medical board to issue licenses and regulate physician practice. Professional misconduct is about unprofessional behavior, and covers both ethical breach and substandard care.

Medical boards do not typically adjudicate single acts of ordinary negligence, leaving them instead to the tort system and civil lawsuits. However, grossly culpable misconduct – even in a single instance – or a recurring pattern of ordinary negligence can come under medical board review. And it is common practice for boards to use malpractice data as a tool to trigger further investigations, such as a certain number of malpractice settlements over a given span of time.

States vary somewhat over when to investigate a complaint of alleged substandard practice. In California, the term “unprofessional conduct” is codified under section 2234 of the California Business and Professions Code, and the errant doctor is subject to disciplinary sanction if there is gross negligence, repeated negligent acts (defined as two or more negligent acts or omissions), or incompetence.

In Hawaii, the disciplinary law is set up under Hawaii Revised Statutes section 453-8, which lists 15 situations of wrongdoing. In the malpractice category, Hawaii’s law uses the terms hazardous misconduct, hazardous negligence, incompetence, or multiple instances of negligence.

The state of New York defines professional misconduct by reference to a comprehensive list of 49 categories under section 6530, which include gross incompetence or gross negligence on a single occasion, or negligence or incompetence on more than one occasion.

However, Maryland is an example of a jurisdiction that does not require gross or repeated negligence; the state considers any failure to meet the appropriate medical standards as professional misconduct.¹

But what constitutes gross negligence?

The vast majority of medical malpractice lawsuits allege ordinary, not gross negligence. Ordinary negligence is a well-defined legal term, as illustrated in Prosser’s Textbook on Torts: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing.”²

In contrast, there is no universal definition for the term gross negligence. Everyone recognizes it denotes a greater degree of culpability than ordinary negligence, but how much greater?

According to the California Supreme Court, gross negligence may be said to be “the want of even scant care or an extreme departure from the ordinary standard of conduct.”³ The law in Texas stipulates: “Gross negligence means more than momentary thoughtlessness, inadvertence, or error of judgment. It means an entire want of care as to establish that the act or omission was the result of actual, conscious indifference to the rights, safety, and welfare of the person affected.”⁴

Examples in case law of gross negligence (or where punitive damages were awarded, which usually signify egregious conduct) include a doctor’s wanton failure to provide follow-up care for a child who developed fever and gangrenous toes following foot surgery,⁵ the prescription of an excessive number of birth control pills (more than 1,000 pills within a time period when less than 200 were sufficient) with resulting liver complications,⁶ and leaving behind a 6.5-inch clamp in a surgical incision.⁷

On the other hand, a Connecticut court (which decided the case in the hypothetical above) ruled that, under the facts, the defendant’s conduct did not meet the high threshold of egregiousness that defines gross negligence.⁸

As in any malpractice lawsuit, a medical board investigation involves determining whether the accused physician has met the standard of care in his or her specialty, and boards usually look to expert community physicians to articulate that requisite standard.

Compared with a civil lawsuit, a disciplinary hearing has the physician at a disadvantage. Medical board complaints are easier to file; the complaining party does not need an attorney; impartial expert witnesses are the responsibility of the board, not the complainant; and no patient injury needs to be shown.

Furthermore, a settlement is rarely reached or negotiated, and penalties are potentially far more serious, such as public posting of an adverse decision and restriction or actual loss of licensure.

Reputational loss also is arguably more devastating with board censure, because an adverse action taken by a medical board indicates a violation of the Medical Practice Act. In contrast, malpractice settlements or verdicts are regularly viewed as unreliable measures of a physician’s competence.

Still, two features work in favor of the doctor facing a board hearing. First, the misconduct typically has to be recurrent or grossly negligent, rather than an isolated case of carelessness. And second, some boards (only a small minority) require evidentiary proof of fault to be “clear and convincing,” instead of the familiar “more probable than not” standard that is used in a civil negligence suit. This makes it theoretically harder to reach a finding of culpability against the doctor.

References

1. Md. Code Ann. Health Occ. section 14-404.

2. Prosser and Keeton on Torts, 5th ed., 1984.

3. Van Meter v. Bent Construction Co., 297 P.2d 644 (Cal. 1956).

4. Texas Civil Practice & Remedies Code section 41.001(7).

5. Dempsey v. Phelps, 700 So.2d 1340 (Ala. 1997).

6. Jackson v. Taylor, 912 F.2d 795 (5th Cir. 1990).

7. Fox v. Oklahoma Memorial Hospital, 774 P.2d 459 (Ok. 1989).

8. Boone v. William W. Backus Hospital, 864 A.2d 1 (Conn. 2005).

Dr. Tan is emeritus professor of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Why did testing stop at EKG—especially given family history?

AFTER COMPLAINING OF CHEST PAIN, a 37-year-old man underwent an electrocardiogram (EKG) examination. The doctor concluded that the pain was not cardiac in nature. Two years later, the patient died of a sudden cardiac event associated with coronary atherosclerotic disease.

PLAINTIFF’S CLAIM The decedent suffered from high cholesterol and had a family history of cardiac issues, yet no additional testing was performed when the patient’s complaints continued.

THE DEFENSE No information on the defense is available.

VERDICT $3 million settlement.

This case serves as a reminder that patients can have more than one disease of an organ system.

COMMENT This is déjà vu for me. A colleague of mine had a nearly identical case a few years ago, but the patient died several days later. In the case described here, the high cholesterol and family history were red flags. A normal EKG does not rule out angina. I do wonder what happened, however, in the 2 years between the office visit and the patient’s sudden death. The chest pain at the office visit may well have been non-cardiac, but it appears the jury was not convinced.

2 FPs overlook boy’s proteinuria; delay in Dx costs him a kidney

AN 11-YEAR-OLD BOY underwent a laparoscopic appendectomy that included a urinalysis. Following the surgery, the surgeon notified the family physician (FP) that the patient’s urinalysis showed >300 mg/dL of protein. The result was unusual and required follow-up. The surgeon felt that the urinalysis result might be related to the proximity of the appendicitis to the boy’s ureter. The boy was evaluated on several other occasions by the FP, but no work-up was performed.

Three years later, the boy saw a different FP, who noted that the child had elevated blood pressure and blurry vision—among other symptoms. The boy’s renal function tests were documented as abnormal; however, the patient and his mother were never notified of this. Also, the patient was never referred to a nephrologist or neurologist and there was no intervention for a potential kidney abnormality.

Two years later, an associate of the FP ordered further blood tests that showed a clear abnormality with regard to the integrity of the child’s kidney function. The boy was evaluated at a hospital and diagnosed with end-stage renal disease. He received a kidney transplant 3 months later and requires lifetime medical care as a result of the transplant. The boy will likely require further transplants in 10-year increments.

PLAINTIFF’S CLAIM Both FPs deviated from the accepted standard of care when they failed to order further testing as a result of the abnormal laboratory tests. Earlier intervention may have prolonged the life of the boy’s kidney, thereby postponing the need for kidney replacements.

THE DEFENSE No information on the defense is available.

VERDICT $1.25 million Massachusetts settlement.

COMMENT 300 mg/dL is a significant amount of proteinuria and requires further testing. Why didn’t the FP follow up? Was a summary of the hospitalization sent to him/her? Certainly the diagnosis should have been made by the second FP, and the patient should’ve been referred to a nephrologist. A lawsuit would most likely have been averted had this happened. Delayed diagnosis accounts for a high proportion of malpractice suits against FPs.

Duodenal ulcer mistakenly attributed to Crohn’s disease

A 47-YEAR-OLD MAN with a history of Crohn’s disease began experiencing persistent abdominal pain. He hadn’t had symptoms of his Crohn’s disease in over 12 years. Nevertheless, doctors diagnosed his pain as an aggravation of the disease and gave him treatment based on this diagnosis. In fact, though, the man had an acute duodenal ulcer that had progressed and perforated. The patient underwent 12 surgeries (with complications) and almost 2 years of near-constant hospitalization as a result of the misdiagnosis. He now requires 24-hour care in all aspects of his life.

PLAINTIFF’S CLAIM The doctors were negligent in their failure to consider and diagnose a peptic ulcer when the plaintiff’s symptoms indicated issues other than Crohn’s disease.

THE DEFENSE No information on the defense is available.

VERDICT $28 million Maryland verdict.

COMMENT I suspect this was a tough diagnosis, given the patient’s prior history of Crohn’s disease. We are not told the nature of the abdominal pain. If the patient had classic epigastric pain, peptic ulcer disease should have been investigated. This case serves as a reminder that patients can have more than one disease of an organ system, and it reminds us of the need for a careful history and close follow-up if a complaint does not resolve.

Why did testing stop at EKG—especially given family history?

AFTER COMPLAINING OF CHEST PAIN, a 37-year-old man underwent an electrocardiogram (EKG) examination. The doctor concluded that the pain was not cardiac in nature. Two years later, the patient died of a sudden cardiac event associated with coronary atherosclerotic disease.

PLAINTIFF’S CLAIM The decedent suffered from high cholesterol and had a family history of cardiac issues, yet no additional testing was performed when the patient’s complaints continued.

THE DEFENSE No information on the defense is available.

VERDICT $3 million settlement.

This case serves as a reminder that patients can have more than one disease of an organ system.

COMMENT This is déjà vu for me. A colleague of mine had a nearly identical case a few years ago, but the patient died several days later. In the case described here, the high cholesterol and family history were red flags. A normal EKG does not rule out angina. I do wonder what happened, however, in the 2 years between the office visit and the patient’s sudden death. The chest pain at the office visit may well have been non-cardiac, but it appears the jury was not convinced.

2 FPs overlook boy’s proteinuria; delay in Dx costs him a kidney

AN 11-YEAR-OLD BOY underwent a laparoscopic appendectomy that included a urinalysis. Following the surgery, the surgeon notified the family physician (FP) that the patient’s urinalysis showed >300 mg/dL of protein. The result was unusual and required follow-up. The surgeon felt that the urinalysis result might be related to the proximity of the appendicitis to the boy’s ureter. The boy was evaluated on several other occasions by the FP, but no work-up was performed.

Three years later, the boy saw a different FP, who noted that the child had elevated blood pressure and blurry vision—among other symptoms. The boy’s renal function tests were documented as abnormal; however, the patient and his mother were never notified of this. Also, the patient was never referred to a nephrologist or neurologist and there was no intervention for a potential kidney abnormality.

Two years later, an associate of the FP ordered further blood tests that showed a clear abnormality with regard to the integrity of the child’s kidney function. The boy was evaluated at a hospital and diagnosed with end-stage renal disease. He received a kidney transplant 3 months later and requires lifetime medical care as a result of the transplant. The boy will likely require further transplants in 10-year increments.

PLAINTIFF’S CLAIM Both FPs deviated from the accepted standard of care when they failed to order further testing as a result of the abnormal laboratory tests. Earlier intervention may have prolonged the life of the boy’s kidney, thereby postponing the need for kidney replacements.

THE DEFENSE No information on the defense is available.

VERDICT $1.25 million Massachusetts settlement.

COMMENT 300 mg/dL is a significant amount of proteinuria and requires further testing. Why didn’t the FP follow up? Was a summary of the hospitalization sent to him/her? Certainly the diagnosis should have been made by the second FP, and the patient should’ve been referred to a nephrologist. A lawsuit would most likely have been averted had this happened. Delayed diagnosis accounts for a high proportion of malpractice suits against FPs.

Duodenal ulcer mistakenly attributed to Crohn’s disease

A 47-YEAR-OLD MAN with a history of Crohn’s disease began experiencing persistent abdominal pain. He hadn’t had symptoms of his Crohn’s disease in over 12 years. Nevertheless, doctors diagnosed his pain as an aggravation of the disease and gave him treatment based on this diagnosis. In fact, though, the man had an acute duodenal ulcer that had progressed and perforated. The patient underwent 12 surgeries (with complications) and almost 2 years of near-constant hospitalization as a result of the misdiagnosis. He now requires 24-hour care in all aspects of his life.

PLAINTIFF’S CLAIM The doctors were negligent in their failure to consider and diagnose a peptic ulcer when the plaintiff’s symptoms indicated issues other than Crohn’s disease.

THE DEFENSE No information on the defense is available.

VERDICT $28 million Maryland verdict.

COMMENT I suspect this was a tough diagnosis, given the patient’s prior history of Crohn’s disease. We are not told the nature of the abdominal pain. If the patient had classic epigastric pain, peptic ulcer disease should have been investigated. This case serves as a reminder that patients can have more than one disease of an organ system, and it reminds us of the need for a careful history and close follow-up if a complaint does not resolve.

Why did testing stop at EKG—especially given family history?

AFTER COMPLAINING OF CHEST PAIN, a 37-year-old man underwent an electrocardiogram (EKG) examination. The doctor concluded that the pain was not cardiac in nature. Two years later, the patient died of a sudden cardiac event associated with coronary atherosclerotic disease.

PLAINTIFF’S CLAIM The decedent suffered from high cholesterol and had a family history of cardiac issues, yet no additional testing was performed when the patient’s complaints continued.

THE DEFENSE No information on the defense is available.

VERDICT $3 million settlement.

This case serves as a reminder that patients can have more than one disease of an organ system.

COMMENT This is déjà vu for me. A colleague of mine had a nearly identical case a few years ago, but the patient died several days later. In the case described here, the high cholesterol and family history were red flags. A normal EKG does not rule out angina. I do wonder what happened, however, in the 2 years between the office visit and the patient’s sudden death. The chest pain at the office visit may well have been non-cardiac, but it appears the jury was not convinced.

2 FPs overlook boy’s proteinuria; delay in Dx costs him a kidney

AN 11-YEAR-OLD BOY underwent a laparoscopic appendectomy that included a urinalysis. Following the surgery, the surgeon notified the family physician (FP) that the patient’s urinalysis showed >300 mg/dL of protein. The result was unusual and required follow-up. The surgeon felt that the urinalysis result might be related to the proximity of the appendicitis to the boy’s ureter. The boy was evaluated on several other occasions by the FP, but no work-up was performed.

Three years later, the boy saw a different FP, who noted that the child had elevated blood pressure and blurry vision—among other symptoms. The boy’s renal function tests were documented as abnormal; however, the patient and his mother were never notified of this. Also, the patient was never referred to a nephrologist or neurologist and there was no intervention for a potential kidney abnormality.

Two years later, an associate of the FP ordered further blood tests that showed a clear abnormality with regard to the integrity of the child’s kidney function. The boy was evaluated at a hospital and diagnosed with end-stage renal disease. He received a kidney transplant 3 months later and requires lifetime medical care as a result of the transplant. The boy will likely require further transplants in 10-year increments.

PLAINTIFF’S CLAIM Both FPs deviated from the accepted standard of care when they failed to order further testing as a result of the abnormal laboratory tests. Earlier intervention may have prolonged the life of the boy’s kidney, thereby postponing the need for kidney replacements.

THE DEFENSE No information on the defense is available.

VERDICT $1.25 million Massachusetts settlement.

COMMENT 300 mg/dL is a significant amount of proteinuria and requires further testing. Why didn’t the FP follow up? Was a summary of the hospitalization sent to him/her? Certainly the diagnosis should have been made by the second FP, and the patient should’ve been referred to a nephrologist. A lawsuit would most likely have been averted had this happened. Delayed diagnosis accounts for a high proportion of malpractice suits against FPs.

Duodenal ulcer mistakenly attributed to Crohn’s disease

A 47-YEAR-OLD MAN with a history of Crohn’s disease began experiencing persistent abdominal pain. He hadn’t had symptoms of his Crohn’s disease in over 12 years. Nevertheless, doctors diagnosed his pain as an aggravation of the disease and gave him treatment based on this diagnosis. In fact, though, the man had an acute duodenal ulcer that had progressed and perforated. The patient underwent 12 surgeries (with complications) and almost 2 years of near-constant hospitalization as a result of the misdiagnosis. He now requires 24-hour care in all aspects of his life.

PLAINTIFF’S CLAIM The doctors were negligent in their failure to consider and diagnose a peptic ulcer when the plaintiff’s symptoms indicated issues other than Crohn’s disease.

THE DEFENSE No information on the defense is available.

VERDICT $28 million Maryland verdict.

COMMENT I suspect this was a tough diagnosis, given the patient’s prior history of Crohn’s disease. We are not told the nature of the abdominal pain. If the patient had classic epigastric pain, peptic ulcer disease should have been investigated. This case serves as a reminder that patients can have more than one disease of an organ system, and it reminds us of the need for a careful history and close follow-up if a complaint does not resolve.

(This column is the first in a three-part series.)

Question: Which of the following statements about state medical boards is best?

A. They are made up exclusively of doctors.

B. Disciplinary actions are on the rise.

C. They investigate narrowly defined areas of clinical practice.

D. They usually end with physician suspension.

E. They are insufficiently vigilant, according to critics.

Answer: E. The 10th Amendment of the U.S. Constitution authorizes states to establish laws protecting the health, safety, and general welfare of their citizens.

All 50 states have enacted legislation under the Medical Practice Act authorizing medical boards to issue licenses and regulate physician conduct. The structure and authority of these boards vary from state to state, with some retaining all licensing and disciplinary powers, while others are more advisory in nature and report to the department of health.

Medical boards consist primarily of appointed volunteer physicians and may employ an administrative staff that includes an executive officer and support personnel.¹

State statutes, rules, and regulations govern the disciplinary function of medical boards, which receive, review, and investigate complaints directly from patients and other sources.

There are six main categories of complaints: substandard patient care, alcohol and substance abuse, fraud and other criminal conduct, dishonesty, sexual misconduct, and failure to meet CME requirements. Whether a board can sanction a physician for misconduct outside the realm of medical practice is frequently at issue.

In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his or her capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the “practice of medicine,” even if there is no issue of the individual’s grasp of particular technical skills.

However, the term “practice of medicine” is liberally construed in most jurisdictions, and both boards and courts tend to take a dim view of physician dishonesty and lack of integrity.

For example, the California Court of Appeals in Windham v. Board of Medical Quality Assurance rejected a defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional standing.² Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The court stated that it was difficult to “compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients.”

Likewise, the Washington Supreme Court in an older case upheld the suspension of a doctor’s license following his conviction for tax fraud.³ In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

The number of adverse actions taken by boards nationwide appears to be stabilizing. In 2009, they affected some 4,560 errant physicians. In some states, both the number of complaints and actions may even be subsiding.

For example, the 2014 report by the Texas Medical Board showed that the number of complaints had fallen 17% after reaching a peak in 2009. In 2012, the year with the latest published nationwide data, there were 9,219 total board actions affecting 4,479 physicians. However, only a minority – some 275 doctors – faced the most severe disciplinary sanction, i.e., license revocation. The others either saw their licenses denied (170) or suspended (739), or faced lesser sanctions such as reprimands, probations, restrictions, and fines.

Critics have labeled medical boards “a good old boys network” where any private admonition is never made public. A stinging report of medical licensing and discipline in the state of New York, using data from 1982 through 1989, concluded, “the structure and functioning of the process as they now exist are seriously deficient in these areas and that major reforms are urgently needed.”⁴

The consumer group Public Citizen has bemoaned the fact that most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner. Advocacy groups worry about insufficient vigilance, and cite the case of Dr. Farid Fata, an oncologist whose license was finally removed by the Michigan board in 2013 for giving chemotherapy to healthy patients. The board had received an earlier complaint from a nurse in 2010, but it took no action until federal authorities charged the doctor following a tip from a whistleblower.⁵

To be sure, there are troubling observations. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. During 2007-2009, for example, Minnesota had the lowest rate per 1,000 physicians (1.07), whereas Alaska had the highest rate of 7.89, some seven times higher. State rankings also change drastically from year to year without apparent good reason.

For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline.

In 1999, Public Citizen began publishing yearly rankings that purportedly showed each board’s effectiveness, based on its number of “serious actions.” The rankings were based on yearly data released by the Federation of State Medical Boards (FSMB), a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories.

The federation protested the way its data were being used, but the rankings apparently caused some board executives to lose their jobs. In 2012, the FSMB stopped reporting state actions, thus ending this type of public disclosure.

To be seen as unbiased guardians of the public trust, boards now have nonphysician members, some of whom are health care attorneys. The state governor who appoints the board members is answerable to the voters for any delay or decision that permits a rogue physician to keep on practicing.

Accordingly, Michigan has instituted a process that allows it to overrule a disciplinary decision by the board, which raises an issue of due process rights. Theoretically, physicians would clear themselves in a formal hearing and be officially exonerated by the board, only to see the decision overruled by an administrative department.

Some medical boards have been accused of going too far. In Rhode Island, state legislator Rep. Michael W. Chippendale (R) is heading a commission to look into its medical board. The controversy arose from an “outlandish” and “personal” accusation against a physician in a gastroenterology group, which was forced to stop work for a week.

All the facts have not been made public, but a civil suit against the complainant is apparently in the works. The accused physician reportedly had to undergo three board-ordered psychiatric evaluations, and a fourth is pending.

Elsewhere, Oklahoma state lawmaker Rep. Richard Morrissette (D) is said to be introducing legislation limiting the powers of Oklahoma’s medical board.⁶

These are probably isolated events, however, and may not necessarily signal the development of any backlash across the country.

References

1. U.S. Medical Regulatory Trends and Actions, May 2014.

2. Windham v. Board of Medical Quality Assurance, 104 Cal. App.3d 461 (1980).

3. In Re Kindschi, 52 Wn.2d 8 (1958).

4. Post, J. “Medical Discipline and Licensing in the State of New York: A Critical Review.” Bull NY Acad Med. 1991;67:66-98.

5. “One nurse’s gutsy effort to protect patients.” Detroit News, Feb. 6, 2015.

6. “The Black Cloud of a Medical Board Investigation.” Medscape, Dec. 23, 2015.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the first in a three-part series.)

Question: Which of the following statements about state medical boards is best?

A. They are made up exclusively of doctors.

B. Disciplinary actions are on the rise.

C. They investigate narrowly defined areas of clinical practice.

D. They usually end with physician suspension.

E. They are insufficiently vigilant, according to critics.

Answer: E. The 10th Amendment of the U.S. Constitution authorizes states to establish laws protecting the health, safety, and general welfare of their citizens.

All 50 states have enacted legislation under the Medical Practice Act authorizing medical boards to issue licenses and regulate physician conduct. The structure and authority of these boards vary from state to state, with some retaining all licensing and disciplinary powers, while others are more advisory in nature and report to the department of health.

Medical boards consist primarily of appointed volunteer physicians and may employ an administrative staff that includes an executive officer and support personnel.¹

State statutes, rules, and regulations govern the disciplinary function of medical boards, which receive, review, and investigate complaints directly from patients and other sources.

There are six main categories of complaints: substandard patient care, alcohol and substance abuse, fraud and other criminal conduct, dishonesty, sexual misconduct, and failure to meet CME requirements. Whether a board can sanction a physician for misconduct outside the realm of medical practice is frequently at issue.

In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his or her capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the “practice of medicine,” even if there is no issue of the individual’s grasp of particular technical skills.

However, the term “practice of medicine” is liberally construed in most jurisdictions, and both boards and courts tend to take a dim view of physician dishonesty and lack of integrity.

For example, the California Court of Appeals in Windham v. Board of Medical Quality Assurance rejected a defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional standing.² Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The court stated that it was difficult to “compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients.”

Likewise, the Washington Supreme Court in an older case upheld the suspension of a doctor’s license following his conviction for tax fraud.³ In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

The number of adverse actions taken by boards nationwide appears to be stabilizing. In 2009, they affected some 4,560 errant physicians. In some states, both the number of complaints and actions may even be subsiding.

For example, the 2014 report by the Texas Medical Board showed that the number of complaints had fallen 17% after reaching a peak in 2009. In 2012, the year with the latest published nationwide data, there were 9,219 total board actions affecting 4,479 physicians. However, only a minority – some 275 doctors – faced the most severe disciplinary sanction, i.e., license revocation. The others either saw their licenses denied (170) or suspended (739), or faced lesser sanctions such as reprimands, probations, restrictions, and fines.

Critics have labeled medical boards “a good old boys network” where any private admonition is never made public. A stinging report of medical licensing and discipline in the state of New York, using data from 1982 through 1989, concluded, “the structure and functioning of the process as they now exist are seriously deficient in these areas and that major reforms are urgently needed.”⁴

The consumer group Public Citizen has bemoaned the fact that most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner. Advocacy groups worry about insufficient vigilance, and cite the case of Dr. Farid Fata, an oncologist whose license was finally removed by the Michigan board in 2013 for giving chemotherapy to healthy patients. The board had received an earlier complaint from a nurse in 2010, but it took no action until federal authorities charged the doctor following a tip from a whistleblower.⁵

To be sure, there are troubling observations. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. During 2007-2009, for example, Minnesota had the lowest rate per 1,000 physicians (1.07), whereas Alaska had the highest rate of 7.89, some seven times higher. State rankings also change drastically from year to year without apparent good reason.

For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline.

In 1999, Public Citizen began publishing yearly rankings that purportedly showed each board’s effectiveness, based on its number of “serious actions.” The rankings were based on yearly data released by the Federation of State Medical Boards (FSMB), a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories.

The federation protested the way its data were being used, but the rankings apparently caused some board executives to lose their jobs. In 2012, the FSMB stopped reporting state actions, thus ending this type of public disclosure.

To be seen as unbiased guardians of the public trust, boards now have nonphysician members, some of whom are health care attorneys. The state governor who appoints the board members is answerable to the voters for any delay or decision that permits a rogue physician to keep on practicing.

Accordingly, Michigan has instituted a process that allows it to overrule a disciplinary decision by the board, which raises an issue of due process rights. Theoretically, physicians would clear themselves in a formal hearing and be officially exonerated by the board, only to see the decision overruled by an administrative department.

Some medical boards have been accused of going too far. In Rhode Island, state legislator Rep. Michael W. Chippendale (R) is heading a commission to look into its medical board. The controversy arose from an “outlandish” and “personal” accusation against a physician in a gastroenterology group, which was forced to stop work for a week.

All the facts have not been made public, but a civil suit against the complainant is apparently in the works. The accused physician reportedly had to undergo three board-ordered psychiatric evaluations, and a fourth is pending.

Elsewhere, Oklahoma state lawmaker Rep. Richard Morrissette (D) is said to be introducing legislation limiting the powers of Oklahoma’s medical board.⁶

These are probably isolated events, however, and may not necessarily signal the development of any backlash across the country.

References

1. U.S. Medical Regulatory Trends and Actions, May 2014.

2. Windham v. Board of Medical Quality Assurance, 104 Cal. App.3d 461 (1980).

3. In Re Kindschi, 52 Wn.2d 8 (1958).

4. Post, J. “Medical Discipline and Licensing in the State of New York: A Critical Review.” Bull NY Acad Med. 1991;67:66-98.

5. “One nurse’s gutsy effort to protect patients.” Detroit News, Feb. 6, 2015.

6. “The Black Cloud of a Medical Board Investigation.” Medscape, Dec. 23, 2015.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

(This column is the first in a three-part series.)

Question: Which of the following statements about state medical boards is best?

A. They are made up exclusively of doctors.

B. Disciplinary actions are on the rise.

C. They investigate narrowly defined areas of clinical practice.

D. They usually end with physician suspension.

E. They are insufficiently vigilant, according to critics.

Answer: E. The 10th Amendment of the U.S. Constitution authorizes states to establish laws protecting the health, safety, and general welfare of their citizens.

All 50 states have enacted legislation under the Medical Practice Act authorizing medical boards to issue licenses and regulate physician conduct. The structure and authority of these boards vary from state to state, with some retaining all licensing and disciplinary powers, while others are more advisory in nature and report to the department of health.

Medical boards consist primarily of appointed volunteer physicians and may employ an administrative staff that includes an executive officer and support personnel.¹

State statutes, rules, and regulations govern the disciplinary function of medical boards, which receive, review, and investigate complaints directly from patients and other sources.

There are six main categories of complaints: substandard patient care, alcohol and substance abuse, fraud and other criminal conduct, dishonesty, sexual misconduct, and failure to meet CME requirements. Whether a board can sanction a physician for misconduct outside the realm of medical practice is frequently at issue.

In Maryland, for example, conduct that has merely a general or associative relationship to the physician in his or her capacity as a member of the medical profession is not sanctionable by the state board of physicians.

On the other hand, if it relates to the effective delivery of patient care, then the misconduct can be said to occur in the “practice of medicine,” even if there is no issue of the individual’s grasp of particular technical skills.

However, the term “practice of medicine” is liberally construed in most jurisdictions, and both boards and courts tend to take a dim view of physician dishonesty and lack of integrity.

For example, the California Court of Appeals in Windham v. Board of Medical Quality Assurance rejected a defendant’s position that his conviction for tax evasion was not the type of transgression that reflected on his professional standing.² Instead, the court held that such dishonesty necessarily involves moral turpitude, and is sufficiently related to the practice of medicine as to justify revocation of licensure.

The court stated that it was difficult to “compartmentalize dishonesty in such a way that a person who is willing to cheat his government out of $65,000 in taxes may yet be considered honest in his dealings with his patients.”

Likewise, the Washington Supreme Court in an older case upheld the suspension of a doctor’s license following his conviction for tax fraud.³ In taking a broad view of the requirement that improper conduct relates to the practice of medicine, the court held that conviction for tax fraud, which goes to the issue of trustworthiness, is a valid reason for taking disciplinary action against a physician.

The number of adverse actions taken by boards nationwide appears to be stabilizing. In 2009, they affected some 4,560 errant physicians. In some states, both the number of complaints and actions may even be subsiding.

For example, the 2014 report by the Texas Medical Board showed that the number of complaints had fallen 17% after reaching a peak in 2009. In 2012, the year with the latest published nationwide data, there were 9,219 total board actions affecting 4,479 physicians. However, only a minority – some 275 doctors – faced the most severe disciplinary sanction, i.e., license revocation. The others either saw their licenses denied (170) or suspended (739), or faced lesser sanctions such as reprimands, probations, restrictions, and fines.

Critics have labeled medical boards “a good old boys network” where any private admonition is never made public. A stinging report of medical licensing and discipline in the state of New York, using data from 1982 through 1989, concluded, “the structure and functioning of the process as they now exist are seriously deficient in these areas and that major reforms are urgently needed.”⁴

The consumer group Public Citizen has bemoaned the fact that most states are not living up to their obligations to protect patients from doctors who are practicing medicine in a substandard manner. Advocacy groups worry about insufficient vigilance, and cite the case of Dr. Farid Fata, an oncologist whose license was finally removed by the Michigan board in 2013 for giving chemotherapy to healthy patients. The board had received an earlier complaint from a nurse in 2010, but it took no action until federal authorities charged the doctor following a tip from a whistleblower.⁵

To be sure, there are troubling observations. For one thing, there is an inexplicably wide variability in the rates of disciplinary actions. During 2007-2009, for example, Minnesota had the lowest rate per 1,000 physicians (1.07), whereas Alaska had the highest rate of 7.89, some seven times higher. State rankings also change drastically from year to year without apparent good reason.

For another, criminal convictions for insurance fraud and violation of controlled substances prescriptions frequently end up with only mild or modest discipline.

In 1999, Public Citizen began publishing yearly rankings that purportedly showed each board’s effectiveness, based on its number of “serious actions.” The rankings were based on yearly data released by the Federation of State Medical Boards (FSMB), a national nonprofit organization that represents the 70 medical and osteopathic boards of the United States and its territories.

The federation protested the way its data were being used, but the rankings apparently caused some board executives to lose their jobs. In 2012, the FSMB stopped reporting state actions, thus ending this type of public disclosure.

To be seen as unbiased guardians of the public trust, boards now have nonphysician members, some of whom are health care attorneys. The state governor who appoints the board members is answerable to the voters for any delay or decision that permits a rogue physician to keep on practicing.

Accordingly, Michigan has instituted a process that allows it to overrule a disciplinary decision by the board, which raises an issue of due process rights. Theoretically, physicians would clear themselves in a formal hearing and be officially exonerated by the board, only to see the decision overruled by an administrative department.

Some medical boards have been accused of going too far. In Rhode Island, state legislator Rep. Michael W. Chippendale (R) is heading a commission to look into its medical board. The controversy arose from an “outlandish” and “personal” accusation against a physician in a gastroenterology group, which was forced to stop work for a week.

All the facts have not been made public, but a civil suit against the complainant is apparently in the works. The accused physician reportedly had to undergo three board-ordered psychiatric evaluations, and a fourth is pending.

Elsewhere, Oklahoma state lawmaker Rep. Richard Morrissette (D) is said to be introducing legislation limiting the powers of Oklahoma’s medical board.⁶

These are probably isolated events, however, and may not necessarily signal the development of any backlash across the country.

References

1. U.S. Medical Regulatory Trends and Actions, May 2014.

2. Windham v. Board of Medical Quality Assurance, 104 Cal. App.3d 461 (1980).

3. In Re Kindschi, 52 Wn.2d 8 (1958).

4. Post, J. “Medical Discipline and Licensing in the State of New York: A Critical Review.” Bull NY Acad Med. 1991;67:66-98.

5. “One nurse’s gutsy effort to protect patients.” Detroit News, Feb. 6, 2015.

6. “The Black Cloud of a Medical Board Investigation.” Medscape, Dec. 23, 2015.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: In July 2002, a patient in California underwent surgery for a herniated T8-9 disk, but the surgeon instead removed the T6-7 and T7-8 disks. On Sept. 11, 2002, the surgeon discussed with the patient the MRI findings showing his mistake. On Sept. 17, 2003, the patient filed a malpractice lawsuit, just 6 days beyond California’s 1-year limitations period. California subscribes to the discovery rule, that is, a cause of action accrues only when a claimant discovers or should have discovered injury was the result of negligence.

Which of the following choices is best?

A. The lawsuit filed Sept. 17, 2003, is time barred, as the negligent surgery took place in July 2002.

B. On its face, the lawsuit was filed too late, being 1 year and 6 days after the Sept. 11, 2002, discussion date.

C. The lawsuit was timely filed, so long as the claimant can prove he was out of town for more than 6 days of that year.

D. The patient should sue as an action in battery, which has a longer statute of limitations.

E. All choices except A are correct.

Answer: E. At common law, there was no time limit that barred a plaintiff from bringing a claim, although an equitable doctrine of laches existed to foreclose an action that had long lapsed. Statutory changes in the law now require that lawsuits be brought in a timely manner so that the evidence remains fresh, accurate, and reliable.

Another reason is to provide repose to the wrongdoer, that is, relief from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, with states such as California and Tennessee placing a 1-year limit on medical malpractice claims. In California, the running of the statute is tolled (temporarily halted) for the days a claimant is out of state.

The above case scenario is taken from Kaplan v. Mamelak,¹ where the plaintiff’s lawsuit was not barred to allow him to identify the number of days he was out of town. The court also permitted a cause of action in battery, which is covered under a longer statute of limitations, as well as one sounding in malpractice.

Patients who are injured from malpractice may not always be aware that a negligent act had taken place, and some injuries may remain latent for a long period. Recognizing this, statutes of limitation emphasize the date when the plaintiff first discovered that the injury resulted from negligence. This is termed the discovery rule.

Stated more formally, the limitations period commences at the time the cause of action (negligence or other wrongs) accrues, and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

The rule, in the words of one court, is meant to balance the need for “prompt assertion of claims” against a policy “favoring adjudication of claims on the merits and ensuring that a party with a valid claim will be given an opportunity to present it.”

As is typical of other jurisdictions, Hawaii sought to clarify the discovery rule in a series of court cases, beginning with Yoshizaki v. Hilo Hospital,² where the court deemed a cause of action “does not begin to run until the plaintiff knew or should have known of the defendant’s negligence.”

Subsequently, Hawaii’s Intermediate Court of Appeals explained that the state’s 2-year limitations statute commences when the plaintiff discovers, or through the use of reasonable diligence should have discovered, 1) the damage; 2) the violation of the duty; and 3) the causal connection between the violation of the duty and the damage.³

The court subsequently held that the rule prevents the running of the limitations period until “the plaintiff [has] knowledge of those facts which are necessary for an actionable claim.”⁴ In 1999, the Hawaii Supreme Court clarified that it was “factual knowledge,” rather than “legal knowledge,” that starts the clock running, and that legal knowledge of a defendant’s negligence was not required.⁵

More recently, litigation over the time barring of claims was evident in Moon v. Rhode,⁶ where Dr. Clarissa Rhode and Central Illinois Radiological Associates were sued for negligently misreading a patient’s CT scans.

The 90-year-old patient, Kathryn Moon, was admitted to Proctor Hospital May 18, 2009, and died 11 days later following surgery and complications of fluid overload and a pneumoperitoneum. Dr. Rhode, a radiologist, interpreted two CT scans, which an independent expert in 2013 determined were negligently misread. A lawsuit was then brought against Dr. Rhode, who was not a named defendant when the plaintiff had timely filed a medical negligence action back in 2011 against the surgeon and the attending doctor.

The court of appeals held that the discovery rule can be applied to wrongful death and survival actions, and that the statute of limitations begins to run when the plaintiff knows or should have known that the death was “wrongfully caused.” However, this did not necessarily mean knowledge of a specific defendant’s negligent conduct or knowledge of the existence of a cause of action.

The court stated: “Plaintiff filed his complaint long after he became possessed with sufficient information, which put him on inquiry to determine whether actionable conduct was involved.” The court ruled that the relevant inquiry was not when the plaintiff became aware that Dr. Rhode may have committed medical negligence, but when any defendant may have committed medical negligence against the patient Kathryn. The case is currently on appeal to the Supreme Court of Illinois.

In addition to the discovery rule, other situations may toll the limitations period. One example is fraudulent concealment of a right of action, where the statute may be tolled during the period of concealment. And in all jurisdictions, the running of the time period is halted in malpractice complaints involving treatment of a minor until that minor reaches a certain age, such as age of majority, or after a stipulated number of years, for example, 6 years.

Occasionally, a health care provider may overlook an important tolling provision. California, for example, has a rule that any “payment” made to an injured party must be accompanied by a written statement regarding the applicable statute of limitations.

In the recent Coastal Surgical Institute v. Blevins case,⁷ the defendant surgeon made a payment of $4,118.23 for medical expenses incurred by an unrepresented plaintiff, but had neglected to attach a release or a written notice regarding the statute of limitations. The plaintiff subsequently decided to file a lawsuit, even though more than a year – the statutory period – had lapsed.

Under the facts, the limitation period was tolled, and the trial court allowed the case to go forward, ultimately finding liability and awarding damages of $500,000, later reduced to $285,114. The court of appeals affirmed the decision.

This case has prompted MIEC, a malpractice insurance carrier, to emphasize putting in writing the restrictions imposed by the limitations statute to any unrepresented patient. MIEC also warned that the term “payment” might be construed liberally, citing case examples that include a free counseling session and the provision of specialized care for a student injured by a school’s gym equipment.

References

1. Kaplan v. Mamelak, 162 Cal. App. 4th 637 (2008).

2. Yoshizaki v. Hilo Hospital, 433 P.2d 220 (1967).

3. Jacoby v. Kaiser Foundation Hospital, 622 P.2d 613 (1981).

4. Yamaguchi v. Queen’s Medical Center, 648 P.2d 689 (1982).

5. Buck v. Miles, 971 P.2d 717 (1999).

6. Moon v. Rhode, IL. 2015 App. 3d 130613.

7. Coastal Surgical Institute v. Blevins, 232 Cal. App. 4th 1321 (2015).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: In July 2002, a patient in California underwent surgery for a herniated T8-9 disk, but the surgeon instead removed the T6-7 and T7-8 disks. On Sept. 11, 2002, the surgeon discussed with the patient the MRI findings showing his mistake. On Sept. 17, 2003, the patient filed a malpractice lawsuit, just 6 days beyond California’s 1-year limitations period. California subscribes to the discovery rule, that is, a cause of action accrues only when a claimant discovers or should have discovered injury was the result of negligence.

Which of the following choices is best?

A. The lawsuit filed Sept. 17, 2003, is time barred, as the negligent surgery took place in July 2002.

B. On its face, the lawsuit was filed too late, being 1 year and 6 days after the Sept. 11, 2002, discussion date.

C. The lawsuit was timely filed, so long as the claimant can prove he was out of town for more than 6 days of that year.

D. The patient should sue as an action in battery, which has a longer statute of limitations.

E. All choices except A are correct.

Answer: E. At common law, there was no time limit that barred a plaintiff from bringing a claim, although an equitable doctrine of laches existed to foreclose an action that had long lapsed. Statutory changes in the law now require that lawsuits be brought in a timely manner so that the evidence remains fresh, accurate, and reliable.

Another reason is to provide repose to the wrongdoer, that is, relief from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, with states such as California and Tennessee placing a 1-year limit on medical malpractice claims. In California, the running of the statute is tolled (temporarily halted) for the days a claimant is out of state.

The above case scenario is taken from Kaplan v. Mamelak,¹ where the plaintiff’s lawsuit was not barred to allow him to identify the number of days he was out of town. The court also permitted a cause of action in battery, which is covered under a longer statute of limitations, as well as one sounding in malpractice.

Patients who are injured from malpractice may not always be aware that a negligent act had taken place, and some injuries may remain latent for a long period. Recognizing this, statutes of limitation emphasize the date when the plaintiff first discovered that the injury resulted from negligence. This is termed the discovery rule.

Stated more formally, the limitations period commences at the time the cause of action (negligence or other wrongs) accrues, and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

The rule, in the words of one court, is meant to balance the need for “prompt assertion of claims” against a policy “favoring adjudication of claims on the merits and ensuring that a party with a valid claim will be given an opportunity to present it.”

As is typical of other jurisdictions, Hawaii sought to clarify the discovery rule in a series of court cases, beginning with Yoshizaki v. Hilo Hospital,² where the court deemed a cause of action “does not begin to run until the plaintiff knew or should have known of the defendant’s negligence.”

Subsequently, Hawaii’s Intermediate Court of Appeals explained that the state’s 2-year limitations statute commences when the plaintiff discovers, or through the use of reasonable diligence should have discovered, 1) the damage; 2) the violation of the duty; and 3) the causal connection between the violation of the duty and the damage.³

The court subsequently held that the rule prevents the running of the limitations period until “the plaintiff [has] knowledge of those facts which are necessary for an actionable claim.”⁴ In 1999, the Hawaii Supreme Court clarified that it was “factual knowledge,” rather than “legal knowledge,” that starts the clock running, and that legal knowledge of a defendant’s negligence was not required.⁵

More recently, litigation over the time barring of claims was evident in Moon v. Rhode,⁶ where Dr. Clarissa Rhode and Central Illinois Radiological Associates were sued for negligently misreading a patient’s CT scans.

The 90-year-old patient, Kathryn Moon, was admitted to Proctor Hospital May 18, 2009, and died 11 days later following surgery and complications of fluid overload and a pneumoperitoneum. Dr. Rhode, a radiologist, interpreted two CT scans, which an independent expert in 2013 determined were negligently misread. A lawsuit was then brought against Dr. Rhode, who was not a named defendant when the plaintiff had timely filed a medical negligence action back in 2011 against the surgeon and the attending doctor.

The court of appeals held that the discovery rule can be applied to wrongful death and survival actions, and that the statute of limitations begins to run when the plaintiff knows or should have known that the death was “wrongfully caused.” However, this did not necessarily mean knowledge of a specific defendant’s negligent conduct or knowledge of the existence of a cause of action.

The court stated: “Plaintiff filed his complaint long after he became possessed with sufficient information, which put him on inquiry to determine whether actionable conduct was involved.” The court ruled that the relevant inquiry was not when the plaintiff became aware that Dr. Rhode may have committed medical negligence, but when any defendant may have committed medical negligence against the patient Kathryn. The case is currently on appeal to the Supreme Court of Illinois.

In addition to the discovery rule, other situations may toll the limitations period. One example is fraudulent concealment of a right of action, where the statute may be tolled during the period of concealment. And in all jurisdictions, the running of the time period is halted in malpractice complaints involving treatment of a minor until that minor reaches a certain age, such as age of majority, or after a stipulated number of years, for example, 6 years.

Occasionally, a health care provider may overlook an important tolling provision. California, for example, has a rule that any “payment” made to an injured party must be accompanied by a written statement regarding the applicable statute of limitations.

In the recent Coastal Surgical Institute v. Blevins case,⁷ the defendant surgeon made a payment of $4,118.23 for medical expenses incurred by an unrepresented plaintiff, but had neglected to attach a release or a written notice regarding the statute of limitations. The plaintiff subsequently decided to file a lawsuit, even though more than a year – the statutory period – had lapsed.

Under the facts, the limitation period was tolled, and the trial court allowed the case to go forward, ultimately finding liability and awarding damages of $500,000, later reduced to $285,114. The court of appeals affirmed the decision.

This case has prompted MIEC, a malpractice insurance carrier, to emphasize putting in writing the restrictions imposed by the limitations statute to any unrepresented patient. MIEC also warned that the term “payment” might be construed liberally, citing case examples that include a free counseling session and the provision of specialized care for a student injured by a school’s gym equipment.

References

1. Kaplan v. Mamelak, 162 Cal. App. 4th 637 (2008).

2. Yoshizaki v. Hilo Hospital, 433 P.2d 220 (1967).

3. Jacoby v. Kaiser Foundation Hospital, 622 P.2d 613 (1981).

4. Yamaguchi v. Queen’s Medical Center, 648 P.2d 689 (1982).

5. Buck v. Miles, 971 P.2d 717 (1999).

6. Moon v. Rhode, IL. 2015 App. 3d 130613.

7. Coastal Surgical Institute v. Blevins, 232 Cal. App. 4th 1321 (2015).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: In July 2002, a patient in California underwent surgery for a herniated T8-9 disk, but the surgeon instead removed the T6-7 and T7-8 disks. On Sept. 11, 2002, the surgeon discussed with the patient the MRI findings showing his mistake. On Sept. 17, 2003, the patient filed a malpractice lawsuit, just 6 days beyond California’s 1-year limitations period. California subscribes to the discovery rule, that is, a cause of action accrues only when a claimant discovers or should have discovered injury was the result of negligence.

Which of the following choices is best?

A. The lawsuit filed Sept. 17, 2003, is time barred, as the negligent surgery took place in July 2002.

B. On its face, the lawsuit was filed too late, being 1 year and 6 days after the Sept. 11, 2002, discussion date.

C. The lawsuit was timely filed, so long as the claimant can prove he was out of town for more than 6 days of that year.

D. The patient should sue as an action in battery, which has a longer statute of limitations.

E. All choices except A are correct.

Answer: E. At common law, there was no time limit that barred a plaintiff from bringing a claim, although an equitable doctrine of laches existed to foreclose an action that had long lapsed. Statutory changes in the law now require that lawsuits be brought in a timely manner so that the evidence remains fresh, accurate, and reliable.

Another reason is to provide repose to the wrongdoer, that is, relief from worrying for an indefinite period of time whether a lawsuit will be brought. This time period, during which a lawsuit must be filed or it will be barred, is termed the statute of limitations. It is 2 years for the tort of negligence in most jurisdictions, with states such as California and Tennessee placing a 1-year limit on medical malpractice claims. In California, the running of the statute is tolled (temporarily halted) for the days a claimant is out of state.

The above case scenario is taken from Kaplan v. Mamelak,¹ where the plaintiff’s lawsuit was not barred to allow him to identify the number of days he was out of town. The court also permitted a cause of action in battery, which is covered under a longer statute of limitations, as well as one sounding in malpractice.

Patients who are injured from malpractice may not always be aware that a negligent act had taken place, and some injuries may remain latent for a long period. Recognizing this, statutes of limitation emphasize the date when the plaintiff first discovered that the injury resulted from negligence. This is termed the discovery rule.

Stated more formally, the limitations period commences at the time the cause of action (negligence or other wrongs) accrues, and this usually means when the claimant knew (actual knowledge) or should have known (constructive knowledge).

The rule, in the words of one court, is meant to balance the need for “prompt assertion of claims” against a policy “favoring adjudication of claims on the merits and ensuring that a party with a valid claim will be given an opportunity to present it.”

As is typical of other jurisdictions, Hawaii sought to clarify the discovery rule in a series of court cases, beginning with Yoshizaki v. Hilo Hospital,² where the court deemed a cause of action “does not begin to run until the plaintiff knew or should have known of the defendant’s negligence.”

Subsequently, Hawaii’s Intermediate Court of Appeals explained that the state’s 2-year limitations statute commences when the plaintiff discovers, or through the use of reasonable diligence should have discovered, 1) the damage; 2) the violation of the duty; and 3) the causal connection between the violation of the duty and the damage.³

The court subsequently held that the rule prevents the running of the limitations period until “the plaintiff [has] knowledge of those facts which are necessary for an actionable claim.”⁴ In 1999, the Hawaii Supreme Court clarified that it was “factual knowledge,” rather than “legal knowledge,” that starts the clock running, and that legal knowledge of a defendant’s negligence was not required.⁵

More recently, litigation over the time barring of claims was evident in Moon v. Rhode,⁶ where Dr. Clarissa Rhode and Central Illinois Radiological Associates were sued for negligently misreading a patient’s CT scans.

The 90-year-old patient, Kathryn Moon, was admitted to Proctor Hospital May 18, 2009, and died 11 days later following surgery and complications of fluid overload and a pneumoperitoneum. Dr. Rhode, a radiologist, interpreted two CT scans, which an independent expert in 2013 determined were negligently misread. A lawsuit was then brought against Dr. Rhode, who was not a named defendant when the plaintiff had timely filed a medical negligence action back in 2011 against the surgeon and the attending doctor.

The court of appeals held that the discovery rule can be applied to wrongful death and survival actions, and that the statute of limitations begins to run when the plaintiff knows or should have known that the death was “wrongfully caused.” However, this did not necessarily mean knowledge of a specific defendant’s negligent conduct or knowledge of the existence of a cause of action.

The court stated: “Plaintiff filed his complaint long after he became possessed with sufficient information, which put him on inquiry to determine whether actionable conduct was involved.” The court ruled that the relevant inquiry was not when the plaintiff became aware that Dr. Rhode may have committed medical negligence, but when any defendant may have committed medical negligence against the patient Kathryn. The case is currently on appeal to the Supreme Court of Illinois.

In addition to the discovery rule, other situations may toll the limitations period. One example is fraudulent concealment of a right of action, where the statute may be tolled during the period of concealment. And in all jurisdictions, the running of the time period is halted in malpractice complaints involving treatment of a minor until that minor reaches a certain age, such as age of majority, or after a stipulated number of years, for example, 6 years.

Occasionally, a health care provider may overlook an important tolling provision. California, for example, has a rule that any “payment” made to an injured party must be accompanied by a written statement regarding the applicable statute of limitations.

In the recent Coastal Surgical Institute v. Blevins case,⁷ the defendant surgeon made a payment of $4,118.23 for medical expenses incurred by an unrepresented plaintiff, but had neglected to attach a release or a written notice regarding the statute of limitations. The plaintiff subsequently decided to file a lawsuit, even though more than a year – the statutory period – had lapsed.

Under the facts, the limitation period was tolled, and the trial court allowed the case to go forward, ultimately finding liability and awarding damages of $500,000, later reduced to $285,114. The court of appeals affirmed the decision.

This case has prompted MIEC, a malpractice insurance carrier, to emphasize putting in writing the restrictions imposed by the limitations statute to any unrepresented patient. MIEC also warned that the term “payment” might be construed liberally, citing case examples that include a free counseling session and the provision of specialized care for a student injured by a school’s gym equipment.

References

1. Kaplan v. Mamelak, 162 Cal. App. 4th 637 (2008).

2. Yoshizaki v. Hilo Hospital, 433 P.2d 220 (1967).

3. Jacoby v. Kaiser Foundation Hospital, 622 P.2d 613 (1981).

4. Yamaguchi v. Queen’s Medical Center, 648 P.2d 689 (1982).

5. Buck v. Miles, 971 P.2d 717 (1999).

6. Moon v. Rhode, IL. 2015 App. 3d 130613.

7. Coastal Surgical Institute v. Blevins, 232 Cal. App. 4th 1321 (2015).

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical, or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: A patient was admitted with heart failure, developed deep vein thrombosis, and was started on warfarin and Lovenox as “bridge” therapy. On day 4, the patient achieved anticoagulation with a prothrombin time of 29.8 and international normalized ratio (INR) of 2.86, but continued to receive both warfarin and Lovenox for a total of 13 days. Both medications were dispensed and administered for 2 days when the PT was greater than 50; the supratherapeutic coagulation profile result was overlooked. Medications held on day 14 (PT, 68; INR, 8.35). The patient developed a right subdural hematoma and was transferred to a tertiary care facility for neurosurgery consult.

Given these facts, which of the following statements is best?

A. The hospital is under a legal obligation to disclose the error.

B. The doctor should be sympathetic and apologize for the injury, but not admit fault.

C. All jurisdictions have so-called “apology statutes,” which encourage error disclosure in return for immunity.

D. This is a case of medication, not medical, error.

E. Silence is golden.

Answer: B. A recent publication concluded, “If medical error were a disease, it would rank as the third leading cause of death in the United States.”¹ This is the latest follow through on the original landmark report from the Institute of Medicine in 2000, which drew the public’s attention to the fact that medical errors were responsible for between 44,000 and 98,000 annual fatalities in the United States.

A medical error denotes a preventable adverse event, which in turn can be described as an injury caused by medical mismanagement rather than the underlying condition of the patient. It is more formally defined as “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim.”² The term is not synonymous with medical negligence, which is a legal term of art encompassing four separate elements: duty, breach, causation, and damages.

The most common type of medical error is a medication error, which is any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health professional, patient, or consumer.

Medication errors account for 6.3%-30% of all malpractice claims, and a 1999 Texas case is an example.³ A 43-year-old Hispanic man with chest pain was prescribed the anti-angina drug Isordil (isosorbide dinitrate) by his cardiologist, to be taken four times a day in doses of 20 mg. The pharmacist misread the order as Plendil (felodipine), a calcium channel blocker for treatment of hypertension. This exceeded the drug’s top dose, and the patient suffered a heart attack and died several days later.

The cardiologist’s illegible prescription was the sole reason for the error, and his overall quality of care was not at issue. The jury returned a verdict for the plaintiff, awarding $450,000 to his estate: $225,000 from the cardiologist, and $225,000 from the pharmacist.

Many, but not all, jurisdictions now require some form of reporting of medical errors occurring in a hospital setting. States such as California and Florida mandate disclosure to patients. Pennsylvania actually requires hospitals to issue a written disclosure within 7 days of a serious event.

Most states have enacted “apology statutes” to encourage open discussions with patients and their families about adverse results. The apologies may cover expressions of regret, sympathy, and compassion, and they are barred from being presented to the jury should a trial ensue. However, an acknowledgment of fault remains admissible into evidence.

Typical is California’s Evidence Code 1160(a), which provides that only “the portions of statements or benevolent gestures expressing sympathy” are inadmissible against a treating physician. On the other hand, some states have chosen to exclude all disclosures, including admissions of fault. An example is Colorado’s Apology Statute (Colo. Rev. Stat. Ann. 13-25-135), which provides that “any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence ... shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”

Ohio is one of only a few states whose apology statutes fail to clearly distinguish between the admissibility of a physician’s statement of sympathy and one acknowledging fault. R.C. 2317.43, enacted by the Ohio General Assembly in 2004, renders inadmissible “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.”

In Davis v. Wooster Orthopaedics & Sports Medicine,⁴ the plaintiff alleged that Dr. Michael Knapic, an orthopedic surgeon, negligently performed a lumbar microdiscectomy, severing the patient’s common iliac artery. The surgeon allegedly then said to the patient’s husband, “It’s my fault. I take full responsibility.”

In a wrongful-death action, the plaintiff argued that the statute did not prohibit the use of statements of fault, responsibility, or liability as compared to statements of sympathy or condolence.

Ohio’s Ninth Appellate District concluded that the intent behind the apology statute was to protect pure expressions of sympathy but not admissions of fault. The court held that Dr. Knapic’s statements constituted an admission of liability that could be admitted into evidence. The jury awarded damages of $3 million.

More recently, the Ohio Supreme Court ruled that Dr. Randall Smith’s alleged confession regarding accidentally sectioning his patient’s common bile duct was properly excluded from evidence, even though the incident took place before the Ohio law went into effect.⁵

The patient had to be readmitted within 3 weeks for obstructive jaundice. After the doctor informed her that she would have to undergo additional surgery, she became very emotional. He reportedly took her hand, saying, “I take full responsibility for this.”

The Ohio Supreme Court ruled, “The trial court had determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient. This is precisely the type of evidence that R.C. 2317.43 was designed to exclude as evidence of liability in a medical-malpractice case.”

Do disclosures and apologies work?

Both claim frequency and severity have diminished following the adoption of a humanistic risk management policy at the Lexington Veterans Affairs Medical Center since 1987.⁶ The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries.

Other institutions such as the University of Michigan have adopted “disclosure and offer” in place of “denial and defend” policies, but these have yet to achieve widespread use.

Many health care providers continue to heed the traditional legal advice to say and admit nothing, believing that it is unsettled whether an apology will influence any decision to sue the doctor. They argue that the odds of a lawsuit are low to begin with.

In the oft-cited Harvard study, there was only one malpractice claim for every 7.6 adverse events caused by negligence among the 3.7% of hospitalized patients who suffered significant iatrogenic injuries, typically from errors or negligence.⁷

Notwithstanding the controversy, the AMA has properly taken the moral high ground: It asserts that error disclosure is the right thing to do.

References

1. BMJ. 2016 May 3;353:i2139.

2. Institute of Medicine: To Err is Human: Building a Safer Health System. National Academy Press, Washington, 2000.

3. Estate of Velasquez v. Albertsons, Inc. et al., Civ. No. A-103-042 (Ector Cnty, TX 1999).

4. Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581 (2011).

5. Estate of Johnson v. Randall Smith, Inc., 131 Ohio St.3d 1543 (2013).

6. N Engl J Med. 2010 Apr 15;362(15):1353-6.

7. N Engl J Med. 1991 Jul 25;325(4):245-51.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: A patient was admitted with heart failure, developed deep vein thrombosis, and was started on warfarin and Lovenox as “bridge” therapy. On day 4, the patient achieved anticoagulation with a prothrombin time of 29.8 and international normalized ratio (INR) of 2.86, but continued to receive both warfarin and Lovenox for a total of 13 days. Both medications were dispensed and administered for 2 days when the PT was greater than 50; the supratherapeutic coagulation profile result was overlooked. Medications held on day 14 (PT, 68; INR, 8.35). The patient developed a right subdural hematoma and was transferred to a tertiary care facility for neurosurgery consult.

Given these facts, which of the following statements is best?

A. The hospital is under a legal obligation to disclose the error.

B. The doctor should be sympathetic and apologize for the injury, but not admit fault.

C. All jurisdictions have so-called “apology statutes,” which encourage error disclosure in return for immunity.

D. This is a case of medication, not medical, error.

E. Silence is golden.

Answer: B. A recent publication concluded, “If medical error were a disease, it would rank as the third leading cause of death in the United States.”¹ This is the latest follow through on the original landmark report from the Institute of Medicine in 2000, which drew the public’s attention to the fact that medical errors were responsible for between 44,000 and 98,000 annual fatalities in the United States.

A medical error denotes a preventable adverse event, which in turn can be described as an injury caused by medical mismanagement rather than the underlying condition of the patient. It is more formally defined as “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim.”² The term is not synonymous with medical negligence, which is a legal term of art encompassing four separate elements: duty, breach, causation, and damages.

The most common type of medical error is a medication error, which is any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health professional, patient, or consumer.

Medication errors account for 6.3%-30% of all malpractice claims, and a 1999 Texas case is an example.³ A 43-year-old Hispanic man with chest pain was prescribed the anti-angina drug Isordil (isosorbide dinitrate) by his cardiologist, to be taken four times a day in doses of 20 mg. The pharmacist misread the order as Plendil (felodipine), a calcium channel blocker for treatment of hypertension. This exceeded the drug’s top dose, and the patient suffered a heart attack and died several days later.

The cardiologist’s illegible prescription was the sole reason for the error, and his overall quality of care was not at issue. The jury returned a verdict for the plaintiff, awarding $450,000 to his estate: $225,000 from the cardiologist, and $225,000 from the pharmacist.

Many, but not all, jurisdictions now require some form of reporting of medical errors occurring in a hospital setting. States such as California and Florida mandate disclosure to patients. Pennsylvania actually requires hospitals to issue a written disclosure within 7 days of a serious event.

Most states have enacted “apology statutes” to encourage open discussions with patients and their families about adverse results. The apologies may cover expressions of regret, sympathy, and compassion, and they are barred from being presented to the jury should a trial ensue. However, an acknowledgment of fault remains admissible into evidence.

Typical is California’s Evidence Code 1160(a), which provides that only “the portions of statements or benevolent gestures expressing sympathy” are inadmissible against a treating physician. On the other hand, some states have chosen to exclude all disclosures, including admissions of fault. An example is Colorado’s Apology Statute (Colo. Rev. Stat. Ann. 13-25-135), which provides that “any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence ... shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”

Ohio is one of only a few states whose apology statutes fail to clearly distinguish between the admissibility of a physician’s statement of sympathy and one acknowledging fault. R.C. 2317.43, enacted by the Ohio General Assembly in 2004, renders inadmissible “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.”

In Davis v. Wooster Orthopaedics & Sports Medicine,⁴ the plaintiff alleged that Dr. Michael Knapic, an orthopedic surgeon, negligently performed a lumbar microdiscectomy, severing the patient’s common iliac artery. The surgeon allegedly then said to the patient’s husband, “It’s my fault. I take full responsibility.”

In a wrongful-death action, the plaintiff argued that the statute did not prohibit the use of statements of fault, responsibility, or liability as compared to statements of sympathy or condolence.

Ohio’s Ninth Appellate District concluded that the intent behind the apology statute was to protect pure expressions of sympathy but not admissions of fault. The court held that Dr. Knapic’s statements constituted an admission of liability that could be admitted into evidence. The jury awarded damages of $3 million.

More recently, the Ohio Supreme Court ruled that Dr. Randall Smith’s alleged confession regarding accidentally sectioning his patient’s common bile duct was properly excluded from evidence, even though the incident took place before the Ohio law went into effect.⁵

The patient had to be readmitted within 3 weeks for obstructive jaundice. After the doctor informed her that she would have to undergo additional surgery, she became very emotional. He reportedly took her hand, saying, “I take full responsibility for this.”

The Ohio Supreme Court ruled, “The trial court had determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient. This is precisely the type of evidence that R.C. 2317.43 was designed to exclude as evidence of liability in a medical-malpractice case.”

Do disclosures and apologies work?

Both claim frequency and severity have diminished following the adoption of a humanistic risk management policy at the Lexington Veterans Affairs Medical Center since 1987.⁶ The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries.

Other institutions such as the University of Michigan have adopted “disclosure and offer” in place of “denial and defend” policies, but these have yet to achieve widespread use.

Many health care providers continue to heed the traditional legal advice to say and admit nothing, believing that it is unsettled whether an apology will influence any decision to sue the doctor. They argue that the odds of a lawsuit are low to begin with.

In the oft-cited Harvard study, there was only one malpractice claim for every 7.6 adverse events caused by negligence among the 3.7% of hospitalized patients who suffered significant iatrogenic injuries, typically from errors or negligence.⁷

Notwithstanding the controversy, the AMA has properly taken the moral high ground: It asserts that error disclosure is the right thing to do.

References

1. BMJ. 2016 May 3;353:i2139.

2. Institute of Medicine: To Err is Human: Building a Safer Health System. National Academy Press, Washington, 2000.

3. Estate of Velasquez v. Albertsons, Inc. et al., Civ. No. A-103-042 (Ector Cnty, TX 1999).

4. Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581 (2011).

5. Estate of Johnson v. Randall Smith, Inc., 131 Ohio St.3d 1543 (2013).

6. N Engl J Med. 2010 Apr 15;362(15):1353-6.

7. N Engl J Med. 1991 Jul 25;325(4):245-51.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: A patient was admitted with heart failure, developed deep vein thrombosis, and was started on warfarin and Lovenox as “bridge” therapy. On day 4, the patient achieved anticoagulation with a prothrombin time of 29.8 and international normalized ratio (INR) of 2.86, but continued to receive both warfarin and Lovenox for a total of 13 days. Both medications were dispensed and administered for 2 days when the PT was greater than 50; the supratherapeutic coagulation profile result was overlooked. Medications held on day 14 (PT, 68; INR, 8.35). The patient developed a right subdural hematoma and was transferred to a tertiary care facility for neurosurgery consult.

Given these facts, which of the following statements is best?

A. The hospital is under a legal obligation to disclose the error.

B. The doctor should be sympathetic and apologize for the injury, but not admit fault.

C. All jurisdictions have so-called “apology statutes,” which encourage error disclosure in return for immunity.

D. This is a case of medication, not medical, error.

E. Silence is golden.

Answer: B. A recent publication concluded, “If medical error were a disease, it would rank as the third leading cause of death in the United States.”¹ This is the latest follow through on the original landmark report from the Institute of Medicine in 2000, which drew the public’s attention to the fact that medical errors were responsible for between 44,000 and 98,000 annual fatalities in the United States.

A medical error denotes a preventable adverse event, which in turn can be described as an injury caused by medical mismanagement rather than the underlying condition of the patient. It is more formally defined as “the failure of a planned action to be completed as intended or the use of a wrong plan to achieve an aim.”² The term is not synonymous with medical negligence, which is a legal term of art encompassing four separate elements: duty, breach, causation, and damages.

The most common type of medical error is a medication error, which is any preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in the control of the health professional, patient, or consumer.

Medication errors account for 6.3%-30% of all malpractice claims, and a 1999 Texas case is an example.³ A 43-year-old Hispanic man with chest pain was prescribed the anti-angina drug Isordil (isosorbide dinitrate) by his cardiologist, to be taken four times a day in doses of 20 mg. The pharmacist misread the order as Plendil (felodipine), a calcium channel blocker for treatment of hypertension. This exceeded the drug’s top dose, and the patient suffered a heart attack and died several days later.

The cardiologist’s illegible prescription was the sole reason for the error, and his overall quality of care was not at issue. The jury returned a verdict for the plaintiff, awarding $450,000 to his estate: $225,000 from the cardiologist, and $225,000 from the pharmacist.

Many, but not all, jurisdictions now require some form of reporting of medical errors occurring in a hospital setting. States such as California and Florida mandate disclosure to patients. Pennsylvania actually requires hospitals to issue a written disclosure within 7 days of a serious event.

Most states have enacted “apology statutes” to encourage open discussions with patients and their families about adverse results. The apologies may cover expressions of regret, sympathy, and compassion, and they are barred from being presented to the jury should a trial ensue. However, an acknowledgment of fault remains admissible into evidence.

Typical is California’s Evidence Code 1160(a), which provides that only “the portions of statements or benevolent gestures expressing sympathy” are inadmissible against a treating physician. On the other hand, some states have chosen to exclude all disclosures, including admissions of fault. An example is Colorado’s Apology Statute (Colo. Rev. Stat. Ann. 13-25-135), which provides that “any and all statements, affirmations, gestures, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence ... shall be inadmissible as evidence of an admission of liability or as evidence of an admission against interest.”

Ohio is one of only a few states whose apology statutes fail to clearly distinguish between the admissibility of a physician’s statement of sympathy and one acknowledging fault. R.C. 2317.43, enacted by the Ohio General Assembly in 2004, renders inadmissible “statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.”

In Davis v. Wooster Orthopaedics & Sports Medicine,⁴ the plaintiff alleged that Dr. Michael Knapic, an orthopedic surgeon, negligently performed a lumbar microdiscectomy, severing the patient’s common iliac artery. The surgeon allegedly then said to the patient’s husband, “It’s my fault. I take full responsibility.”

In a wrongful-death action, the plaintiff argued that the statute did not prohibit the use of statements of fault, responsibility, or liability as compared to statements of sympathy or condolence.

Ohio’s Ninth Appellate District concluded that the intent behind the apology statute was to protect pure expressions of sympathy but not admissions of fault. The court held that Dr. Knapic’s statements constituted an admission of liability that could be admitted into evidence. The jury awarded damages of $3 million.

More recently, the Ohio Supreme Court ruled that Dr. Randall Smith’s alleged confession regarding accidentally sectioning his patient’s common bile duct was properly excluded from evidence, even though the incident took place before the Ohio law went into effect.⁵

The patient had to be readmitted within 3 weeks for obstructive jaundice. After the doctor informed her that she would have to undergo additional surgery, she became very emotional. He reportedly took her hand, saying, “I take full responsibility for this.”

The Ohio Supreme Court ruled, “The trial court had determined that Dr. Smith was faced with a distressed patient who was upset and made a statement that was designed to comfort his patient. This is precisely the type of evidence that R.C. 2317.43 was designed to exclude as evidence of liability in a medical-malpractice case.”

Do disclosures and apologies work?

Both claim frequency and severity have diminished following the adoption of a humanistic risk management policy at the Lexington Veterans Affairs Medical Center since 1987.⁶ The protocol includes early injury review, steadfast maintenance of the relationship between the hospital and the patient, proactive disclosure to patients who have been injured because of accidents or medical negligence, and fair compensation for injuries.

Other institutions such as the University of Michigan have adopted “disclosure and offer” in place of “denial and defend” policies, but these have yet to achieve widespread use.

Many health care providers continue to heed the traditional legal advice to say and admit nothing, believing that it is unsettled whether an apology will influence any decision to sue the doctor. They argue that the odds of a lawsuit are low to begin with.

In the oft-cited Harvard study, there was only one malpractice claim for every 7.6 adverse events caused by negligence among the 3.7% of hospitalized patients who suffered significant iatrogenic injuries, typically from errors or negligence.⁷

Notwithstanding the controversy, the AMA has properly taken the moral high ground: It asserts that error disclosure is the right thing to do.

References

1. BMJ. 2016 May 3;353:i2139.

2. Institute of Medicine: To Err is Human: Building a Safer Health System. National Academy Press, Washington, 2000.

3. Estate of Velasquez v. Albertsons, Inc. et al., Civ. No. A-103-042 (Ector Cnty, TX 1999).

4. Davis v. Wooster Orthopaedics & Sports Medicine, Inc., 193 Ohio App.3d 581 (2011).

5. Estate of Johnson v. Randall Smith, Inc., 131 Ohio St.3d 1543 (2013).

6. N Engl J Med. 2010 Apr 15;362(15):1353-6.

7. N Engl J Med. 1991 Jul 25;325(4):245-51.

Dr. Tan is emeritus professor of medicine and a former adjunct professor of law at the University of Hawaii. This article is meant to be educational and does not constitute medical, ethical or legal advice. It is adapted from the author’s book, “Medical Malpractice: Understanding the Law, Managing the Risk” (2006). For additional information, readers may contact the author at [email protected].

Question: An injured patient alleges that her eye doctor was negligent in failing to adhere to national treatment guidelines and in not using modern medical equipment. The encounter took place in a rural setting, with the nearest hospital 100 miles away.

In her malpractice lawsuit, which of the following choices is incorrect?

A. One of the doctor’s defenses may be the locality rule.

B. The plaintiff’s strongest argument is that community standards should parallel national standards for a specialist doctor such as an ophthalmologist.

C. Her expert witness must be a practicing ophthalmologist from the area.

D. The expert must be familiar with the local standards but does not have to practice there.

E. It all depends on what the state statute says, because the locality rule is not uniform settled law.

Answer: C. In traditional medical tort law, courts would rely on the standard of the particular locale where the tortious act took place, the so-called locality rule. This was based on the belief that different standards of care were applicable in different areas of the country, e.g., urban vs. rural. The rule can be traced to Small v. Howard,¹ an 1880 Massachusetts opinion, which was subsequently overruled in 1968.

Factors favoring the trend away from a local standard toward a national standard include conformity in medical school and residency curricula, and prescribed board certification requirements. Internet access and telemedicine have further propagated this uniformity. Finally, two additional facets of modern medicine – continuing medical education and published clinical practice guidelines – are at odds with a rule geared toward local standards.

One argument against the locality rule is that undue reliance on an outdated mode of practice will perpetuate substandard care. In an older New York malpractice case where a newborn became blind, the pediatrician cited local custom to defend the prolonged use of oxygen to treat preterm infants, despite evidence that this practice might have serious consequences. However, the court of appeals held that the pediatrician’s superior knowledge of the increased risk of hyperoxygenation should have enabled him to use his best judgment instead of relying on the indefensible local custom.

Under a strict version of the locality rule, otherwise qualified expert witnesses may be excluded if they are not practitioners in the locale in question. Still, some courts may allow out-of-state experts to offer their opinions. This has been especially helpful to plaintiffs who are far less likely to be able to secure willing local experts, given the reluctance of many physicians to testify against a fellow doctor in their community.

Take Tennessee as an example. It once excluded the expert testimony of an orthopedic surgeon from Johnson City because the expert witness testified about the national standard and did not have actual knowledge of the standard of care in Nashville, the community where the alleged malpractice occurred.

The Tennessee Court of Appeals later ruled that expert witnesses had to have “personal” or “firsthand knowledge” of the community standard of care, and that interviewing other physicians in the area did not suffice. It subsequently clarified that an expert witness need not actually practice in the same or similar locale, and that professional contact with physicians from comparable communities, such as through referrals, would be acceptable.

Two well-known cases touching on the locality rule bear summarizing: In Swink v. Weintraub,² Mrs. Swink bled into her pericardium during repair of a defective pacemaker electric lead. She died as a result, and her family pursued a wrongful death action, alleging negligence including delayed pericardiocentesis and surgical intervention.

The jury returned a verdict for the plaintiff, awarding damages in the amount of $1,047,732.20. On appeal, the defendants argued that North Carolina’s locality rule extended to all aspects of a negligence action, and that the trial court erred in admitting expert opinions without regard to whether those opinions reflected the “same or similar community” standard of care.

But the court of appeals disagreed, emphasizing that compliance with the “same or similar community” standard does not necessarily exonerate a defendant from an allegation of medical negligence. The court said liability can be established if the defendant did not exercise his “best judgment” in the treatment of the patient or if the defendant failed to use “reasonable care and diligence” in his efforts to render medical assistance.

In McClure v. Inova Medical Group, a Virginia jury found that a family practice resident had failed to meet the Virginia community standard of care when he did not order the prostate-specific antigen (PSA) test in a 53-year-old patient who was subsequently diagnosed with prostate cancer. The doctor had discussed the risks and benefits of PSA testing, but the patient declined taking the test. Jurors sided with the plaintiff’s argument that according to the local or statewide standard, Virginia doctors simply ordered the test as a matter of routine for men older than 50 years without necessarily discussing risks and benefits. The court awarded $1 million to the patient.³

Although the majority of jurisdictions have abandoned the locality rule, several continue to adhere to either a strict or modified version.⁴ Examples are Arizona, Idaho, New York, Tennessee, Virginia, and Washington. A modified rule exists in Louisiana, which holds general practitioners to a community standard and specialists to a national standard.

Finally, many authors have recommended a narrowly constructed rule based not on geographic boundaries, but on the availability of local resources. Courts would then look at the totality of circumstances, but remember that there is always the duty to refer or transfer to an available specialist/facility – and that the failure to do so may form the basis of liability.

As one physician put it: Location should not come into play with respect to the knowledge or skill of the treating physician; and even if a physician may not have the facilities to perform an emergency cesarean section, he or she should still know when it’s called for.

References

1. Small v. Howard, 128 Mass 131 (1880).

2. Swink v. Weintraub, 672 S.E.2d 53 (N.C. Court of Appeals 2009).

3. JAMA. 2004 Jan 7;291(1):15-6.

4. JAMA. 2007 Jun 20;297(23):2633-7.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: An injured patient alleges that her eye doctor was negligent in failing to adhere to national treatment guidelines and in not using modern medical equipment. The encounter took place in a rural setting, with the nearest hospital 100 miles away.

In her malpractice lawsuit, which of the following choices is incorrect?

A. One of the doctor’s defenses may be the locality rule.

B. The plaintiff’s strongest argument is that community standards should parallel national standards for a specialist doctor such as an ophthalmologist.

C. Her expert witness must be a practicing ophthalmologist from the area.

D. The expert must be familiar with the local standards but does not have to practice there.

E. It all depends on what the state statute says, because the locality rule is not uniform settled law.

Answer: C. In traditional medical tort law, courts would rely on the standard of the particular locale where the tortious act took place, the so-called locality rule. This was based on the belief that different standards of care were applicable in different areas of the country, e.g., urban vs. rural. The rule can be traced to Small v. Howard,¹ an 1880 Massachusetts opinion, which was subsequently overruled in 1968.

Factors favoring the trend away from a local standard toward a national standard include conformity in medical school and residency curricula, and prescribed board certification requirements. Internet access and telemedicine have further propagated this uniformity. Finally, two additional facets of modern medicine – continuing medical education and published clinical practice guidelines – are at odds with a rule geared toward local standards.

One argument against the locality rule is that undue reliance on an outdated mode of practice will perpetuate substandard care. In an older New York malpractice case where a newborn became blind, the pediatrician cited local custom to defend the prolonged use of oxygen to treat preterm infants, despite evidence that this practice might have serious consequences. However, the court of appeals held that the pediatrician’s superior knowledge of the increased risk of hyperoxygenation should have enabled him to use his best judgment instead of relying on the indefensible local custom.

Under a strict version of the locality rule, otherwise qualified expert witnesses may be excluded if they are not practitioners in the locale in question. Still, some courts may allow out-of-state experts to offer their opinions. This has been especially helpful to plaintiffs who are far less likely to be able to secure willing local experts, given the reluctance of many physicians to testify against a fellow doctor in their community.

Take Tennessee as an example. It once excluded the expert testimony of an orthopedic surgeon from Johnson City because the expert witness testified about the national standard and did not have actual knowledge of the standard of care in Nashville, the community where the alleged malpractice occurred.

The Tennessee Court of Appeals later ruled that expert witnesses had to have “personal” or “firsthand knowledge” of the community standard of care, and that interviewing other physicians in the area did not suffice. It subsequently clarified that an expert witness need not actually practice in the same or similar locale, and that professional contact with physicians from comparable communities, such as through referrals, would be acceptable.

Two well-known cases touching on the locality rule bear summarizing: In Swink v. Weintraub,² Mrs. Swink bled into her pericardium during repair of a defective pacemaker electric lead. She died as a result, and her family pursued a wrongful death action, alleging negligence including delayed pericardiocentesis and surgical intervention.

The jury returned a verdict for the plaintiff, awarding damages in the amount of $1,047,732.20. On appeal, the defendants argued that North Carolina’s locality rule extended to all aspects of a negligence action, and that the trial court erred in admitting expert opinions without regard to whether those opinions reflected the “same or similar community” standard of care.

But the court of appeals disagreed, emphasizing that compliance with the “same or similar community” standard does not necessarily exonerate a defendant from an allegation of medical negligence. The court said liability can be established if the defendant did not exercise his “best judgment” in the treatment of the patient or if the defendant failed to use “reasonable care and diligence” in his efforts to render medical assistance.

In McClure v. Inova Medical Group, a Virginia jury found that a family practice resident had failed to meet the Virginia community standard of care when he did not order the prostate-specific antigen (PSA) test in a 53-year-old patient who was subsequently diagnosed with prostate cancer. The doctor had discussed the risks and benefits of PSA testing, but the patient declined taking the test. Jurors sided with the plaintiff’s argument that according to the local or statewide standard, Virginia doctors simply ordered the test as a matter of routine for men older than 50 years without necessarily discussing risks and benefits. The court awarded $1 million to the patient.³

Although the majority of jurisdictions have abandoned the locality rule, several continue to adhere to either a strict or modified version.⁴ Examples are Arizona, Idaho, New York, Tennessee, Virginia, and Washington. A modified rule exists in Louisiana, which holds general practitioners to a community standard and specialists to a national standard.

Finally, many authors have recommended a narrowly constructed rule based not on geographic boundaries, but on the availability of local resources. Courts would then look at the totality of circumstances, but remember that there is always the duty to refer or transfer to an available specialist/facility – and that the failure to do so may form the basis of liability.

As one physician put it: Location should not come into play with respect to the knowledge or skill of the treating physician; and even if a physician may not have the facilities to perform an emergency cesarean section, he or she should still know when it’s called for.

References

1. Small v. Howard, 128 Mass 131 (1880).

2. Swink v. Weintraub, 672 S.E.2d 53 (N.C. Court of Appeals 2009).

3. JAMA. 2004 Jan 7;291(1):15-6.

4. JAMA. 2007 Jun 20;297(23):2633-7.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: An injured patient alleges that her eye doctor was negligent in failing to adhere to national treatment guidelines and in not using modern medical equipment. The encounter took place in a rural setting, with the nearest hospital 100 miles away.

In her malpractice lawsuit, which of the following choices is incorrect?

A. One of the doctor’s defenses may be the locality rule.

B. The plaintiff’s strongest argument is that community standards should parallel national standards for a specialist doctor such as an ophthalmologist.

C. Her expert witness must be a practicing ophthalmologist from the area.

D. The expert must be familiar with the local standards but does not have to practice there.

E. It all depends on what the state statute says, because the locality rule is not uniform settled law.

Answer: C. In traditional medical tort law, courts would rely on the standard of the particular locale where the tortious act took place, the so-called locality rule. This was based on the belief that different standards of care were applicable in different areas of the country, e.g., urban vs. rural. The rule can be traced to Small v. Howard,¹ an 1880 Massachusetts opinion, which was subsequently overruled in 1968.

Factors favoring the trend away from a local standard toward a national standard include conformity in medical school and residency curricula, and prescribed board certification requirements. Internet access and telemedicine have further propagated this uniformity. Finally, two additional facets of modern medicine – continuing medical education and published clinical practice guidelines – are at odds with a rule geared toward local standards.

One argument against the locality rule is that undue reliance on an outdated mode of practice will perpetuate substandard care. In an older New York malpractice case where a newborn became blind, the pediatrician cited local custom to defend the prolonged use of oxygen to treat preterm infants, despite evidence that this practice might have serious consequences. However, the court of appeals held that the pediatrician’s superior knowledge of the increased risk of hyperoxygenation should have enabled him to use his best judgment instead of relying on the indefensible local custom.

Under a strict version of the locality rule, otherwise qualified expert witnesses may be excluded if they are not practitioners in the locale in question. Still, some courts may allow out-of-state experts to offer their opinions. This has been especially helpful to plaintiffs who are far less likely to be able to secure willing local experts, given the reluctance of many physicians to testify against a fellow doctor in their community.

Take Tennessee as an example. It once excluded the expert testimony of an orthopedic surgeon from Johnson City because the expert witness testified about the national standard and did not have actual knowledge of the standard of care in Nashville, the community where the alleged malpractice occurred.

The Tennessee Court of Appeals later ruled that expert witnesses had to have “personal” or “firsthand knowledge” of the community standard of care, and that interviewing other physicians in the area did not suffice. It subsequently clarified that an expert witness need not actually practice in the same or similar locale, and that professional contact with physicians from comparable communities, such as through referrals, would be acceptable.

Two well-known cases touching on the locality rule bear summarizing: In Swink v. Weintraub,² Mrs. Swink bled into her pericardium during repair of a defective pacemaker electric lead. She died as a result, and her family pursued a wrongful death action, alleging negligence including delayed pericardiocentesis and surgical intervention.

The jury returned a verdict for the plaintiff, awarding damages in the amount of $1,047,732.20. On appeal, the defendants argued that North Carolina’s locality rule extended to all aspects of a negligence action, and that the trial court erred in admitting expert opinions without regard to whether those opinions reflected the “same or similar community” standard of care.

But the court of appeals disagreed, emphasizing that compliance with the “same or similar community” standard does not necessarily exonerate a defendant from an allegation of medical negligence. The court said liability can be established if the defendant did not exercise his “best judgment” in the treatment of the patient or if the defendant failed to use “reasonable care and diligence” in his efforts to render medical assistance.

In McClure v. Inova Medical Group, a Virginia jury found that a family practice resident had failed to meet the Virginia community standard of care when he did not order the prostate-specific antigen (PSA) test in a 53-year-old patient who was subsequently diagnosed with prostate cancer. The doctor had discussed the risks and benefits of PSA testing, but the patient declined taking the test. Jurors sided with the plaintiff’s argument that according to the local or statewide standard, Virginia doctors simply ordered the test as a matter of routine for men older than 50 years without necessarily discussing risks and benefits. The court awarded $1 million to the patient.³

Although the majority of jurisdictions have abandoned the locality rule, several continue to adhere to either a strict or modified version.⁴ Examples are Arizona, Idaho, New York, Tennessee, Virginia, and Washington. A modified rule exists in Louisiana, which holds general practitioners to a community standard and specialists to a national standard.

Finally, many authors have recommended a narrowly constructed rule based not on geographic boundaries, but on the availability of local resources. Courts would then look at the totality of circumstances, but remember that there is always the duty to refer or transfer to an available specialist/facility – and that the failure to do so may form the basis of liability.

As one physician put it: Location should not come into play with respect to the knowledge or skill of the treating physician; and even if a physician may not have the facilities to perform an emergency cesarean section, he or she should still know when it’s called for.

References

1. Small v. Howard, 128 Mass 131 (1880).

2. Swink v. Weintraub, 672 S.E.2d 53 (N.C. Court of Appeals 2009).

3. JAMA. 2004 Jan 7;291(1):15-6.

4. JAMA. 2007 Jun 20;297(23):2633-7.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: When a doctor could not find a dislodged biopsy guide wire, he abandoned his search after informing the patient of his intention to retrieve it at a later date. Two months later, he was successful in locating and removing the foreign body, but the patient alleged she suffered pain and anxiety in the interim. She filed a negligence lawsuit and, based on the “obvious” nature of her injuries, called no expert witness to testify on her behalf.

Which of the following choices is best?

A. Expert testimony is always needed to establish the applicable standard of care in medical negligence lawsuits.

B. Although a plaintiff is not qualified to expound on medical matters, he/she can offer evidence from learned treatises and medical texts.

C. The jury is the one who determines whether a plaintiff can invoke either the res ipsa loquitur doctrine or the “common knowledge” rule to obviate the need for an expert witness.

D. This patient will likely win her case.

E. All are incorrect.

Answer: E. It is well-established law that the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. Only a professional, duly qualified by the court as an expert witness, is allowed to offer medical testimony – whereas the plaintiff typically will be disqualified from playing this role because of the complexity of issues involved.

However, under either the doctrine of res ipsa loquitur (“the thing speaks for itself”) or the “common knowledge” rule, a court (i.e., the judge) may allow the jury to infer negligence in the absence of expert testimony.

The res doctrine is invoked where there is only circumstantial but no direct evidence, and three conditions are met: 1) The injury would not have occurred in the absence of someone’s negligence; 2) the plaintiff was not at fault; and 3) the defendant had total control of the instrumentality that led to the injury.

The closely related “common knowledge” rule relies on the everyday knowledge and experience of the layperson to identify plain and obvious negligent conduct, which then allows the judge to waive the expert requirement.

The two principles are frequently used interchangeably, ultimately favoring the plaintiff by dispensing with the difficult and expensive task of securing a qualified expert willing to testify against a doctor defendant.

The best example of res in action is the surgeon who inadvertently leaves behind a sponge or instrument inside a body cavity. Other successfully litigated examples include a cardiac arrest in the operating room, hypoxia in the recovery room, burns to the buttock, gangrene after the accidental injection of penicillin into an artery, air trapped subcutaneously from a displaced needle, and a pierced eyeball during a procedure.

A particularly well-known example is Ybarra v. Spangard, in which the patient developed shoulder injuries during an appendectomy.¹ The Supreme Court of California felt it was appropriate to place the burden on the operating room defendants to explain how the patient, unconscious under general anesthesia throughout the procedure, sustained the shoulder injury.

The scenario provided in the opening question is taken from a 2013 New York case, James v. Wormuth, in which the plaintiff relied on the res doctrine.² The defendant doctor had left a guide wire in the plaintiff’s chest following a biopsy and was unable to locate it after a 20-minute search. However, he was able to retrieve the wire 2 months later under C-arm imaging.

The plaintiff sued the doctor for pain and anxiety, but did not call any expert witness, relying instead on the “foreign object” basis for invoking the res doctrine. The lower court ruled for the doctor, and the court of appeals affirmed.

It reasoned that the object was left behind deliberately, not unintentionally, and that under the circumstances of the case, an expert witness was needed to set out the applicable standard of care, without which a jury could not determine whether the doctor’s professional judgment breached the requisite standard. The court also ruled that the plaintiff failed to satisfy the “exclusive control” requirement of the res doctrine, because several other individuals participated to an extent in the medical procedure.

Hawaii’s case of Barbee v. Queen’s Medical Center is illustrative of the “common knowledge” rule.³ Mr. Barbee, age 75 years, underwent laparoscopic nephrectomy for a malignancy. Massive bleeding complicated his postoperative course, the hemoglobin falling into the 3 range, and he required emergent reoperation. Over the next 18 months, the patient progressively deteriorated, eventually requiring dialysis and dying from a stroke and intestinal volvulus.

Notwithstanding an initial jury verdict in favor of the plaintiff’s children, awarding each of the three children $365,000, the defendants filed a so-called JNOV motion (current term is “judgment as a matter of law”) to negate the jury verdict, on the basis that the plaintiffs failed to present competent expert testimony at trial to prove causation.

The plaintiffs countered that the cause of death was within the realm of common knowledge, thus no expert was necessary. They asserted that “any lay person can easily grasp the concept that a person dies from losing so much blood that multiple organs fail to perform their functions.” Mr. Barbee’s death thus was not “of such a technical nature that lay persons are incompetent to draw their own conclusions from facts presented without aid.”

Hawaii’s Intermediate Court of Appeals disagreed with the plaintiffs, holding that although “Hawaii does recognize a ‘common knowledge’ exception to the requirement that a plaintiff must introduce expert medical testimony on causation … this exception is rare in application.” The court asserted that the causal link between any alleged negligence and Mr. Barbee’s death 17 months later is not within the realm of common knowledge.

It reasoned that the long-term effects of internal bleeding are not so widely known as to be analogous to leaving a sponge within a patient or removing the wrong limb during an amputation. Moreover, Mr. Barbee had a long history of preexisting conditions, including hypertension, diabetes, and cancer. He also suffered numerous and serious postoperative medical conditions, including a stroke and surgery to remove part of his intestine, which had become gangrenous.

Thus, the role that preexisting conditions and/or the subsequent complications of this type played in Mr. Barbee’s death was not within the knowledge of the average layperson.

The “common knowledge” rule is aligned with, though not identical to, the res doctrine, but courts are known to conflate the two legal principles, often using them interchangeably.⁴

Strictly speaking, the “common knowledge” waiver comes into play where direct evidence of negligent conduct lies within the realm of everyday lay knowledge that the physician had deviated from common practice. It may or may not address the causation issue.

On the other hand, res is successfully invoked when, despite no direct evidence of negligence and causation, the circumstances surrounding the injury are such that the plaintiff’s case can go to the jury without expert testimony.

References

1. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944).

2. James v. Wormuth, 997 N.E.2d 133 (N.Y. 2013).

3. Barbee v. Queen’s Medical Center, 119 Haw 136 (2008).

4. Spinner, Amanda E. Common Ignorance: Medical Malpractice Law and the Misconceived Application of the “Common Knowledge” and “Res Ipsa Loquitur” Doctrines.” Touro Law Review: Vol. 31: No. 3, Article 15. Available at http://digitalcommons.tourolaw.edu/lawreview/vol31/iss3/15.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: When a doctor could not find a dislodged biopsy guide wire, he abandoned his search after informing the patient of his intention to retrieve it at a later date. Two months later, he was successful in locating and removing the foreign body, but the patient alleged she suffered pain and anxiety in the interim. She filed a negligence lawsuit and, based on the “obvious” nature of her injuries, called no expert witness to testify on her behalf.

Which of the following choices is best?

A. Expert testimony is always needed to establish the applicable standard of care in medical negligence lawsuits.

B. Although a plaintiff is not qualified to expound on medical matters, he/she can offer evidence from learned treatises and medical texts.

C. The jury is the one who determines whether a plaintiff can invoke either the res ipsa loquitur doctrine or the “common knowledge” rule to obviate the need for an expert witness.

D. This patient will likely win her case.

E. All are incorrect.

Answer: E. It is well-established law that the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. Only a professional, duly qualified by the court as an expert witness, is allowed to offer medical testimony – whereas the plaintiff typically will be disqualified from playing this role because of the complexity of issues involved.

However, under either the doctrine of res ipsa loquitur (“the thing speaks for itself”) or the “common knowledge” rule, a court (i.e., the judge) may allow the jury to infer negligence in the absence of expert testimony.

The res doctrine is invoked where there is only circumstantial but no direct evidence, and three conditions are met: 1) The injury would not have occurred in the absence of someone’s negligence; 2) the plaintiff was not at fault; and 3) the defendant had total control of the instrumentality that led to the injury.

The closely related “common knowledge” rule relies on the everyday knowledge and experience of the layperson to identify plain and obvious negligent conduct, which then allows the judge to waive the expert requirement.

The two principles are frequently used interchangeably, ultimately favoring the plaintiff by dispensing with the difficult and expensive task of securing a qualified expert willing to testify against a doctor defendant.

The best example of res in action is the surgeon who inadvertently leaves behind a sponge or instrument inside a body cavity. Other successfully litigated examples include a cardiac arrest in the operating room, hypoxia in the recovery room, burns to the buttock, gangrene after the accidental injection of penicillin into an artery, air trapped subcutaneously from a displaced needle, and a pierced eyeball during a procedure.

A particularly well-known example is Ybarra v. Spangard, in which the patient developed shoulder injuries during an appendectomy.¹ The Supreme Court of California felt it was appropriate to place the burden on the operating room defendants to explain how the patient, unconscious under general anesthesia throughout the procedure, sustained the shoulder injury.

The scenario provided in the opening question is taken from a 2013 New York case, James v. Wormuth, in which the plaintiff relied on the res doctrine.² The defendant doctor had left a guide wire in the plaintiff’s chest following a biopsy and was unable to locate it after a 20-minute search. However, he was able to retrieve the wire 2 months later under C-arm imaging.

The plaintiff sued the doctor for pain and anxiety, but did not call any expert witness, relying instead on the “foreign object” basis for invoking the res doctrine. The lower court ruled for the doctor, and the court of appeals affirmed.

It reasoned that the object was left behind deliberately, not unintentionally, and that under the circumstances of the case, an expert witness was needed to set out the applicable standard of care, without which a jury could not determine whether the doctor’s professional judgment breached the requisite standard. The court also ruled that the plaintiff failed to satisfy the “exclusive control” requirement of the res doctrine, because several other individuals participated to an extent in the medical procedure.

Hawaii’s case of Barbee v. Queen’s Medical Center is illustrative of the “common knowledge” rule.³ Mr. Barbee, age 75 years, underwent laparoscopic nephrectomy for a malignancy. Massive bleeding complicated his postoperative course, the hemoglobin falling into the 3 range, and he required emergent reoperation. Over the next 18 months, the patient progressively deteriorated, eventually requiring dialysis and dying from a stroke and intestinal volvulus.

Notwithstanding an initial jury verdict in favor of the plaintiff’s children, awarding each of the three children $365,000, the defendants filed a so-called JNOV motion (current term is “judgment as a matter of law”) to negate the jury verdict, on the basis that the plaintiffs failed to present competent expert testimony at trial to prove causation.

The plaintiffs countered that the cause of death was within the realm of common knowledge, thus no expert was necessary. They asserted that “any lay person can easily grasp the concept that a person dies from losing so much blood that multiple organs fail to perform their functions.” Mr. Barbee’s death thus was not “of such a technical nature that lay persons are incompetent to draw their own conclusions from facts presented without aid.”

Hawaii’s Intermediate Court of Appeals disagreed with the plaintiffs, holding that although “Hawaii does recognize a ‘common knowledge’ exception to the requirement that a plaintiff must introduce expert medical testimony on causation … this exception is rare in application.” The court asserted that the causal link between any alleged negligence and Mr. Barbee’s death 17 months later is not within the realm of common knowledge.

It reasoned that the long-term effects of internal bleeding are not so widely known as to be analogous to leaving a sponge within a patient or removing the wrong limb during an amputation. Moreover, Mr. Barbee had a long history of preexisting conditions, including hypertension, diabetes, and cancer. He also suffered numerous and serious postoperative medical conditions, including a stroke and surgery to remove part of his intestine, which had become gangrenous.

Thus, the role that preexisting conditions and/or the subsequent complications of this type played in Mr. Barbee’s death was not within the knowledge of the average layperson.

The “common knowledge” rule is aligned with, though not identical to, the res doctrine, but courts are known to conflate the two legal principles, often using them interchangeably.⁴

Strictly speaking, the “common knowledge” waiver comes into play where direct evidence of negligent conduct lies within the realm of everyday lay knowledge that the physician had deviated from common practice. It may or may not address the causation issue.

On the other hand, res is successfully invoked when, despite no direct evidence of negligence and causation, the circumstances surrounding the injury are such that the plaintiff’s case can go to the jury without expert testimony.

References

1. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944).

2. James v. Wormuth, 997 N.E.2d 133 (N.Y. 2013).

3. Barbee v. Queen’s Medical Center, 119 Haw 136 (2008).

4. Spinner, Amanda E. Common Ignorance: Medical Malpractice Law and the Misconceived Application of the “Common Knowledge” and “Res Ipsa Loquitur” Doctrines.” Touro Law Review: Vol. 31: No. 3, Article 15. Available at http://digitalcommons.tourolaw.edu/lawreview/vol31/iss3/15.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].

Question: When a doctor could not find a dislodged biopsy guide wire, he abandoned his search after informing the patient of his intention to retrieve it at a later date. Two months later, he was successful in locating and removing the foreign body, but the patient alleged she suffered pain and anxiety in the interim. She filed a negligence lawsuit and, based on the “obvious” nature of her injuries, called no expert witness to testify on her behalf.

Which of the following choices is best?

A. Expert testimony is always needed to establish the applicable standard of care in medical negligence lawsuits.

B. Although a plaintiff is not qualified to expound on medical matters, he/she can offer evidence from learned treatises and medical texts.

C. The jury is the one who determines whether a plaintiff can invoke either the res ipsa loquitur doctrine or the “common knowledge” rule to obviate the need for an expert witness.

D. This patient will likely win her case.

E. All are incorrect.

Answer: E. It is well-established law that the question of negligence must be decided by reference to relevant medical standards of care for which the plaintiff carries the burden of proving through expert medical testimony. Only a professional, duly qualified by the court as an expert witness, is allowed to offer medical testimony – whereas the plaintiff typically will be disqualified from playing this role because of the complexity of issues involved.

However, under either the doctrine of res ipsa loquitur (“the thing speaks for itself”) or the “common knowledge” rule, a court (i.e., the judge) may allow the jury to infer negligence in the absence of expert testimony.

The res doctrine is invoked where there is only circumstantial but no direct evidence, and three conditions are met: 1) The injury would not have occurred in the absence of someone’s negligence; 2) the plaintiff was not at fault; and 3) the defendant had total control of the instrumentality that led to the injury.

The closely related “common knowledge” rule relies on the everyday knowledge and experience of the layperson to identify plain and obvious negligent conduct, which then allows the judge to waive the expert requirement.

The two principles are frequently used interchangeably, ultimately favoring the plaintiff by dispensing with the difficult and expensive task of securing a qualified expert willing to testify against a doctor defendant.

The best example of res in action is the surgeon who inadvertently leaves behind a sponge or instrument inside a body cavity. Other successfully litigated examples include a cardiac arrest in the operating room, hypoxia in the recovery room, burns to the buttock, gangrene after the accidental injection of penicillin into an artery, air trapped subcutaneously from a displaced needle, and a pierced eyeball during a procedure.

A particularly well-known example is Ybarra v. Spangard, in which the patient developed shoulder injuries during an appendectomy.¹ The Supreme Court of California felt it was appropriate to place the burden on the operating room defendants to explain how the patient, unconscious under general anesthesia throughout the procedure, sustained the shoulder injury.

The scenario provided in the opening question is taken from a 2013 New York case, James v. Wormuth, in which the plaintiff relied on the res doctrine.² The defendant doctor had left a guide wire in the plaintiff’s chest following a biopsy and was unable to locate it after a 20-minute search. However, he was able to retrieve the wire 2 months later under C-arm imaging.

The plaintiff sued the doctor for pain and anxiety, but did not call any expert witness, relying instead on the “foreign object” basis for invoking the res doctrine. The lower court ruled for the doctor, and the court of appeals affirmed.

It reasoned that the object was left behind deliberately, not unintentionally, and that under the circumstances of the case, an expert witness was needed to set out the applicable standard of care, without which a jury could not determine whether the doctor’s professional judgment breached the requisite standard. The court also ruled that the plaintiff failed to satisfy the “exclusive control” requirement of the res doctrine, because several other individuals participated to an extent in the medical procedure.

Hawaii’s case of Barbee v. Queen’s Medical Center is illustrative of the “common knowledge” rule.³ Mr. Barbee, age 75 years, underwent laparoscopic nephrectomy for a malignancy. Massive bleeding complicated his postoperative course, the hemoglobin falling into the 3 range, and he required emergent reoperation. Over the next 18 months, the patient progressively deteriorated, eventually requiring dialysis and dying from a stroke and intestinal volvulus.

Notwithstanding an initial jury verdict in favor of the plaintiff’s children, awarding each of the three children $365,000, the defendants filed a so-called JNOV motion (current term is “judgment as a matter of law”) to negate the jury verdict, on the basis that the plaintiffs failed to present competent expert testimony at trial to prove causation.

The plaintiffs countered that the cause of death was within the realm of common knowledge, thus no expert was necessary. They asserted that “any lay person can easily grasp the concept that a person dies from losing so much blood that multiple organs fail to perform their functions.” Mr. Barbee’s death thus was not “of such a technical nature that lay persons are incompetent to draw their own conclusions from facts presented without aid.”

Hawaii’s Intermediate Court of Appeals disagreed with the plaintiffs, holding that although “Hawaii does recognize a ‘common knowledge’ exception to the requirement that a plaintiff must introduce expert medical testimony on causation … this exception is rare in application.” The court asserted that the causal link between any alleged negligence and Mr. Barbee’s death 17 months later is not within the realm of common knowledge.

It reasoned that the long-term effects of internal bleeding are not so widely known as to be analogous to leaving a sponge within a patient or removing the wrong limb during an amputation. Moreover, Mr. Barbee had a long history of preexisting conditions, including hypertension, diabetes, and cancer. He also suffered numerous and serious postoperative medical conditions, including a stroke and surgery to remove part of his intestine, which had become gangrenous.

Thus, the role that preexisting conditions and/or the subsequent complications of this type played in Mr. Barbee’s death was not within the knowledge of the average layperson.

The “common knowledge” rule is aligned with, though not identical to, the res doctrine, but courts are known to conflate the two legal principles, often using them interchangeably.⁴

Strictly speaking, the “common knowledge” waiver comes into play where direct evidence of negligent conduct lies within the realm of everyday lay knowledge that the physician had deviated from common practice. It may or may not address the causation issue.

On the other hand, res is successfully invoked when, despite no direct evidence of negligence and causation, the circumstances surrounding the injury are such that the plaintiff’s case can go to the jury without expert testimony.

References

1. Ybarra v. Spangard, 154 P.2d 687 (Cal. 1944).

2. James v. Wormuth, 997 N.E.2d 133 (N.Y. 2013).

3. Barbee v. Queen’s Medical Center, 119 Haw 136 (2008).

4. Spinner, Amanda E. Common Ignorance: Medical Malpractice Law and the Misconceived Application of the “Common Knowledge” and “Res Ipsa Loquitur” Doctrines.” Touro Law Review: Vol. 31: No. 3, Article 15. Available at http://digitalcommons.tourolaw.edu/lawreview/vol31/iss3/15.

Dr. Tan is professor emeritus of medicine and former adjunct professor of law at the University of Hawaii, and currently directs the St. Francis International Center for Healthcare Ethics in Honolulu. This article is meant to be educational and does not constitute medical, ethical, or legal advice. Some of the articles in this series are adapted from the author’s 2006 book, “Medical Malpractice: Understanding the Law, Managing the Risk,” and his 2012 Halsbury treatise, “Medical Negligence and Professional Misconduct.” For additional information, readers may contact the author at [email protected].