MALPRACTICE OF HEALTH CARE PROVIDERS INTRODUCTION

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1 MALPRACTICE OF HEALTH CARE PROVIDERS Presented by: Michael G. Berry Berry Wilson, LLC 200 East High Street, Suite 300 P.O. Box 1606 Jefferson City, Missouri Phone: INTRODUCTION The most recent development in the field of healthcare malpractice litigation is probably the most important. The General Assembly has passed legislation which is signed into law reinstating non-economic damage caps. Cases decided within the past year reject tolling the statute of repose within Section , RSMo., bar a cause of action for wrongful death by a person belatedly diagnosed with terminal illness, provide guidance on instructing claims against multiple defendants tried to a jury, discuss constitutional standards and procedure in malpractice actions by confined individuals, and warn against failing to thoroughly investigate the solvency of an insurer before proceeding in costly malpractice litigation. CAPS ARE BACK! In Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633, 641 (Mo. banc 2012), the Supreme Court held that $350,000 statutory cap on non-economic damages in medical malpractice actions (set by Section , RSMo.) violateed the inviolate right to trial by jury guaranteed in the Missouri Constitution that is, the right to trial by jury as it existed at common law when Missouri became a state in 1821 and adopted its first constitution. Mo.Const. Article I, Section 22(a). Medical negligence like any other negligence cause of action existed at common law in 1821; and thus, the legislatively imposed limit on the jury s authority to set damages was held to be unconstitutional. Not to be deterred by the intent of the framers, and in order to keep doctors in Missouri, the General Assembly has taken another run at caps, this time by abrogating 1

2 the common law cause of action for medical malpractice and reinstating a statutory cause of action in its place, with caps on non-economic damages. Governor Nixon signed Senate Bill 239 into law on May 7, 2015, thereby reinstating caps on non-economic damages against health care providers. The bill creates a new cause of action for damages against a health care provider for personal injury or death, and creates 3 different limitations on awards of noneconomic damages. The limits, which will increase 1.7 percent annually, are $400,000 for non-catastrophic personal injury, $700,000 for catastrophic injury, and $700,000 for death. DON T REST UNDER THE STATUTE OF REPOSE Section , RSMo., places a two year limit upon filing a claim for medical malpractice [i]n cases in which the act of neglect complained of is introducing and negligently permitting any foreign object to remain within the body of a living person. The statute commences running from the date of the discovery of such alleged negligence, or from the date on which the patient in the exercise of ordinary care should have discovered such alleged negligence, whichever date first occurs. But regardless of when the malpractice was or could have been discovered, Section includes a ten year statute of repose which provides that in no event shall any action for damages for malpractice, error, or mistake be commenced after the expiration of ten years from the date of the act of neglect complained of. In 2013 Shonda Ambers-Phillips underwent abdominal surgery. During the procedure her surgeon discovered four foreign objects in her abdomen which remained from a 1999 procedure at SSM DePaul Health Center. She filed suit later in 2013 against SSM DePaul and the trial court dismissed, citing the ten year statute of repose in Section , RSMo. The Supreme Court affirmed, holding that even though Shonda filed within two years of discovering the foreign objects, the statute of repose was not subject to equitable tolling during the time Shonda was unaware of the 1999 malpractice. The Court also held the statute to be constitutional. Ambers-Phillips v. SSM DePaul Health Center,----S.W.3d----, WL (Mo. banc April 28, 2015). 2

3 WRONGFULLY SHORTENED LIFE IS NOT THE SAME AS WRONGFUL DEATH To prevail in a wrongful death claim premised on medical malpractice, the plaintiff must show that but for the defendant's actions or inactions, the patient would not have died. E.g., Kivland v. Columbia Orthopaedic Group, LLP, 331 S.W.3d 299, 305 (Mo. banc 2011). However, that does not answer the question of whether a shortening of one s life by malpractice can establish a cause of action for wrongful death. In 2008 Joseph Mickels underwent a brain MRI to evaluate neurological symptoms with which he presented to his physician. The reviewing radiologist, Dr. Raman Danrad, diagnosed no tumor on the images. Two months later Dr. Danrad reviewed a CT scan result which did show a tumor. It was terminal cancer. Joseph died four months later and his family filed suit for wrongful death. The trial court granted summary judgment for Dr. Danrad, and the Court of Appeals affirmed, finding that the uncontroverted evidence (primarily the testimony of Joseph s treating oncologist) gave Joseph no more than six months more to live if the tumor had been identified in 2008 when Dr. Danrad reviewed the images. Mickels v. Danrad,--- S.W.3d ----WL , at 3 (Mo. App., E.D. December 23, 2014). The Court distinguished older cases wherein a cause of action for wrongful death was stated by survivors of terminally ill individuals who were killed by forces other than the failure to timely identify the illness by healthcare providers (being run over by a streetcar, even though terminally ill with tuberculosis). However, the plaintiffs inability to establish a cause of action for wrongful death does not necessarily defeat a cause of action for lost chance of survival a claim which exists when it is impossible to establish the patient would have recovered or survived but for the defendant's alleged failure to properly diagnose or treat. Id. at 3, N. 1 (citations and internal quotes omitted). The practice pointer here is that delay in identifying a terminal illness may support a cause of action different than wrongful death. Lawyers whose clients present such facts should investigate other causes of action on behalf of victims and families of wrongly diagnosed individuals, or should refer to or associate with lawyers concentrating in medical malpractice. 3

4 MULTIPLE VERDICTS WITH DIFFERENT JURORS SIGNING Plainitffs sued two separate doctors, Smith and DiStafano, for malpractice. One performed the original hip replacement surgery on Mackey, the other performed the revision. Neither apparently did his job correctly. At trial Nine jurors returned a verdict against Smith. Nine jurors also returned a verdict against DeStafano, but not the same nine who signed the Smith verdict. Eleven jurors returned a verdict assessing damages separately against each defendant. Smith and DiStafano appealed judgment on the verdict, contending that the verdict assessing damages violated the same juror rule or the rule of nine, reflected in Article I, section 22(a) of Missouri's Constitution, in that there were not nine jurors in common who found both DiStefano and Smith to have been negligently responsible for Mr. Mackey's injuries, yet participated in assessing and apportioning damages. Mackey v. Smith, 438 S.W.3d 465, (Mo. App., W.D. 2014)(italics in original). The Court of Appeals affirmed judgment on all three verdicts, citing two grounds. First, prior Missouri cases have approved verdicts wherein nine jurors found liability and nine but not the precise same nine jurors assessed damages. Secondly, all the same jurors who found liability voted in favor of the damages verdict. The Court explained that as to each defendant in this case, every juror who found that particular defendant liable also found both the amount of damages and the portion of those damages that was attributable to the negligence of that defendant. Id. at 474. Finding no prejudice and no violation of the nine jurors rule, the Court noted that [t]he defendants can, at best, complain that extra jurors, other than the nine required, participated in assessing the damages that the plaintiff suffered and in determining for how much of those damages each defendant was responsible. Id. The lesson Mackey teaches is that care should be taken in cases wherein multiple defendants are in trial to assure consistency of the verdict. As the Court of Appeals observed, the problem raised by both defendants resulted from a risk that the trial court and the parties ran by assessing and apportioning damages on verdict forms that were separate from those that found liability, particularly since the parties stipulated to the 4

5 use of these verdict forms. Id. at 475. This particular submission might be more appropriate if liability for a single set of damages is asserted to be joint and several. However, that was not here the case. HEALTHCARE CLAIMS BY CONFINED INDIVIDUALS Section , RSMo., requires the plaintiff filing a malpractice action against a healthcare provider to file an affidavit stating he has obtained the written opinion of a legally qualified healthcare provider that the defendant failed to use appropriate care, and that such failure directly caused or contributed to the damages. In a custodial setting this affidavit may or may not be required. Ordinary claims for malpractice against healthcare providers, who treat individuals in custody, are not constitutional violations actionable under 42 U.S.C To prevail under 1983 against healthcare providers serving confined individuals requires alleging and proving deliberate indifference to a serious medical condition before the Constitution is implicated. However, if a plaintiff does allege that level of indifference by a healthcare worker, the plaintiff is relieved of having to file an affidavit in support of his suit, which would be required in a conventional malpractice action arising outside of the custodial setting by Section , RSMo. Pierce v. Moore, WL , at 2 (E.D. Mo. September 23, 2014). But see Davis v. St. Louis County, Missouri, WL , at 3-4 (E.D. Mo. February 23, 2015)(medical negligence claims against jail healthcare provider required affidavit). Considering that claims by inmates for all but the most egregious of injuries are difficult to win in front of a jury, care should be taken in case evaluation by those representing the plaintiffs in such actions. No news in that statement. However, the extent to which the conduct at issue rises to the level of deliberate indifference, the case gains more appeal because the affidavit is not required, the need for expert testimony is less, and the prevailing party may recover attorney s fees under 42 U.S.C Moreover, federal Rule 26 imposes few requirements on a party using the records and testimony of subsequent treating healthcare providers for purposes of expert disclosure and discovery. A subsequent treater is generally not a witness who must be disclosed as 5

6 an expert and may be identified as any other fact witness. See Fielden v. CSX Transportation, Inc., 482 F.3d 866, 869 (6th Cir.2007)(treating physician entitled to testify without providing an expert report required for retained experts under Rule 26(a)(2)(B), Fed.R.Civ.Pro.). ABILITY TO COLLECT STILL MATTERS MOST A decision by the Missouri Court of Appeals, Southern District, emphasizes the importance of conducting discovery and perhaps even further investigation into the insurer or risk pool covering the defendants in a medical malpractice action. A financially shaky insurer or pool, and its membership, may escape responsibility to indemnify the insured physicians by liquidating. Recovery is particularly uncertain if the insurer is an assessable mutual company, such as was Physicians Defense Association ( PDA ). McClain ex rel. Rutledge v. James, 453 S.W.3d 255 (Mo. App., S.D. 2014). During the same year plaintiff filed suit against a PDA insured, the company voted to dissolve, paid officers extra-contractual salaries of $168,000 each, and distributed surplus to some members in amounts ranging from $965 to $19,046. In 2000 plaintiff was awarded judgment in excess of $14 Million pursuant to a settlement agreement authorized by Section , RSMo. Multiple suits to collect on the judgment resulted in the final proceeding against the members and directors of PDA seeking, among other relief, to force an assessment to pay the judgment against the PDA insured. The Court held that the right and duty to assess was governed by the PDA bylaws, which made assessments discretionary. Following a bench trial the trial court refused to grant mandamus, refused to order an equitable assessment, and found for the defendants on a fraudulent conveyance claim. The Court of Appeals affirmed. While it is beyond dispute that discovery rules make insuring agreements discoverable, McClain teaches that getting a copy of the policy and declarations of coverage is perhaps only the starting point. Before taking on or proceeding further in a potentially expensive malpractice suit, a lawyer should look to regulatory filings and perhaps beyond to determine the solvency of the defendant s insurer. 6

7 CONCLUSION It may be a while before the next challenge to statutory non-economic damage caps reaches the high court. Does Missouri s Constitution permit the legislature accomplish by abolishing the common law cause of action for medical negligence what it could not do by simply imposing a statutory damages cap? We shall see. This past year s cases demonstrate as much as ever the need for careful evaluation by plaintiff s counsel who is giving thought to taking a malpractice case. Apart from lessons on identifying legal theories and developing facts to support them, cases from explain the importance of focusing early on trial strategy, and why it is time well spent to determine collectability as part of ongoing case evaluation. Any practitioner who even brushes up against healthcare negligence work for plaintiffs or healthcare providers will benefit from reading these cases and considering the implications of SB