U.S. Court in Vermont Awards Damages Based on Loss of Chance to Patient Whose VA Doctor Failed to Diagnose Prostate Cancer

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1 HLD, v. 24, n. 1, p. 57 NEW CAUSES OF ACTION U.S. Court in Vermont Awards Damages Based on Loss of Chance to Patient Whose VA Doctor Failed to Diagnose Prostate Cancer Bernard Short, a veteran entitled to receive medical care from the Veteran s Administration ( VA ), was examined by Dr. Fisher, an internist at the VA hospital on January 10, 1991 after he complained about a skin rash and bowel problems. Fisher noticed that Short s prostrate was soft and enlarged, but did not review Short s previous VA medical records. Short began experiencing urological symptoms in August or September 1991; Fisher again examined Short s prostate and found it to be firm and enlarged, but did not examine his previous records or refer him to a urologist. Another physician examined Short in February 1992 and discovered that his prostate was firm and enlarged, and a urologist discovered that Short had stage 3 prostate cancer. He underwent radiology treatment and when it failed to eradicate the cancer, his testicles were surgically removed, causing a temporary remission of the cancer and permanent impotence. Plaintiffs filed suit against the United States under the Federal Tort Claims Act ( FTCA ) for damages allegedly resulting from Fisher s failure to diagnose Short s prostate cancer, arguing that Short s cancer was present at the September 1991 visit and that if it had been diagnosed at that time, his chances for recovery would have been significantly greater. The federal district court entered judgment for plaintiffs. The district court, applying Vermont law under the FTCA, predicted that the Vermont Supreme Court would apply the loss of chance doctrine in a suit alleging failure to diagnose, and found that Fisher s negligence in failing to review Short s charts or to refer him for further treatment deprived Short of a significant chance of recovery. Under the loss of chance doctrine, the court ruled, Fisher s failure to diagnose was a proximate cause of plaintiffs harm. The court found persuasive plaintiff s testimony that an earlier diagnosis could have permitted his cancer to be successfully cured by radiation or prostatectomy. The court also predicted that the Vermont Supreme Court would adopt a proportional damage approach to compensate a plaintiff for what he or she actually lost, the approximate percentage chance of living for a fixed period of time. Plaintiff was awarded $88,067 in lost wages, $150,000 for pain and suffering, and $197,000 in medical expenses, reduced by the 75% paid by CHAMPUS, for a total of $287,317. Short v. United States, No. 93-CV-233 (D. Vt. Nov. 27, 1995) (30 pages). VICARIOUS LIABILITY/RESPONDEAT SUPERIOR California Supreme Court Rules Hospital Not Vicariously Liable for Sexual Assault on Patient by Ultrasound Technician Plaintiff, Lisa M., filed suit against defendants, Henry Mayo Newhall Memorial Hospital ( Hospital ), Bruce Tripoli ( Tripoli ) an ultrasound technician, and others, for professional negligence, battery, and intentional and negligent infliction of emotional pain as a result of Tripoli sexually molesting plaintiff during an ultrasound examination. In response to a motion for summary judgment filed by the Hospital, plaintiff argued that there were two triable issues of fact: (1) whether the Hospital was vicariously liable for the tort (sexual molestation) committed by Tripoli within the scope of his employment; and (2) whether the Hospital was negligent in failing to have a third person present during the examination. The superior court granted the hospital summary judgment. The court of appeals reversed, but issued an opinion only with respect to the vicarious liability question.

2 HLD, v. 24, n. 1, p. 58 (The issue of the Hospital s negligence was not addressed by the court.) See HLD, v. 22, n. 11, at p. 47. The supreme court granted review and reversed the appellate court s decision regarding vicarious liability. Plaintiff was 19 years old and five weeks pregnant when she was injured in a fall at a movie theater. She was taken to the Hospital s emergency room where an ultrasound examination was ordered. The ultrasound technician, Tripoli, performed the required ultrasound which required him to press an ultrasound wand against the plaintiff s lower abdomen. After the procedure was performed, Tripoli asked the plaintiff if she wanted to know the sex of her child. She answered in the affirmative even though Tripoli told her that he would have to scan her abdomen much further down. Tripoli inserted the wand into plaintiffs vagina and began fondling her. Upon relating the incident to her doctor, plaintiff learned that Tripoli s actions were improper. Tripoli was criminally charged with sexual molestation and he pleaded no contest to the charge. He was ultimately placed on probation and forbidden from performing ultrasounds on women under the age of 40. The supreme court initially reviewed California law on respondeat superior. Generally, an employer is vicariously liable for the torts committed by its employees within the scope of their employment. Torts committed by the employee, however, must be a foreseeable outgrowth of the employment -- in other words, foreseeable or inherent in the employee s working environment. Although usually a question of fact, the determination of whether an employee was working within the scope of employment (when the tort was committed) becomes a question of law if the facts are undisputed and no conflicting inferences are possible. In this case, the court found no disputed facts or conflicting inferences. The supreme court opined that sexual torts are not generally an outgrowth of an employment unless the motivating emotions are fairly attributable to work related events or conditions. The court reasoned that Tripoli s task of taking an ultrasound did not provide an occasion of any work-related emotional involvement with plaintiff, but that he simply took advantage of solitude with a naive patient to commit an assault for reasons unrelated to his work. The court warned that if a hospital were held vicariously liable for intentional sexual assaults committed by its employees whose responsibilities included examining or touching a patient s body, the issue of scope of employment would never enter the vicarious liability equation. Accordingly, the supreme court found that Tripoli s employment responsibilities and his deliberate sexual assault on the plaintiff were too attenuated to render the hospital vicariously liable. The case was remanded to the appellate court to determine whether the Hospital was negligent in supervising the technician. Lisa M. v. Henry Mayo Newhall Mem. Hosp., No. SO43581 (Cal. Dec. 26, 1995) (10 pages). NHLA thanks Ila S. Rothschild, of Margolis & Manning, in Santa Monica, California, and Michael D. Roth, of the Law Offices of Michael Dundon Roth, in Los Angeles, California, for sending us copies of this opinion, and to Ms. Rothschild for providing the above summary. ELEMENTS OF CLAIMS Maine High Court Allows Parents of Child Born with Down s Syndrome to Sue for Wrongful Birth over Failure to Perform Requested Amniocentesis Sally Thibeault went to gynecologist Dr. Steven Larson for an amniocentesis to determine if the fetus she was carrying had any genetic disabilities; she and her husband intended to abort the fetus in that case. Larson determined not to perform the procedure twice because the fetus was in an anterior position, and informed Thibeault that a third procedure would be too risky. Thibeault and her husband ( plaintiffs ), therefore, did not learn of the genetic defect present in their child. Plaintiffs child was born with Down s Syndrome, and they filed suit against defendant physician for negligence, claiming that physicians at the relevant time routinely performed amniocentesis through the placenta and that defendant was negligent in not performing the procedure. The trial court dismissed the action, ruling that 24 Me. Rev. Stat. Ann. 2931(3) and (4), which limits actions involving the birth of a child, permits a cause of action only when the professional negligence is the proximate cause of the defect suffered by the child. Plaintiffs appealed.

3 HLD, v. 24, n. 1, p. 59 The Maine Supreme Judicial Court reversed. The high court found that the plain language of the statute divided professional negligence claims concerning the birth of a child into two categories: the birth of a healthy child, which is not a legally cognizable injury, and damages can only be recovered for pregnancy expenses after a failed sterilization; and the birth of an unhealthy child, which is a legally cognizable injury if the birth of the child is proximately caused by the doctor s negligence. Because plaintiffs claim alleged that they would have terminated the pregnancy had they known of the birth defect, and that defendant negligently failed to perform the requested amniocentesis that would have revealed the defect, their claim was not barred under the statute and was, therefore, improperly dismissed. Thibeault v. Larson, No (Me. Oct. 23, 1995) (9 pages). Arkansas Supreme Court Reinstates Malpractice Suit over Misreading of Mammogram On April 8, 1993, Jane Cash filed a medical malpractice suit against Dr. Rodolfo Lim and his radiology clinic, Pine Bluff Radiologists, Ltd. ( Pine Bluff ) for failure to diagnose a malignant tumor in her right breast, resulting in her having to undergo a radical modified mastectomy of her right breast a year later. Dr. Lim allegedly misread Cash s 1991 mammogram, and in 1992, Dr. Ronald Prichard, another radiologist with Pine Bluff read the film and noticed the density in Cash s right breast. Dr. Hagans, a breast surgeon, performed a biopsy which revealed a cancerous condition. Dr. Hagans subsequently performed Cash s mastectomy on April 29, At trial, the defendants asserted they were entitled to summary judgment as a matter of law, and that Dr. Hagans deposition required the Cashes to prove medical malpractice and causation. The lower court granted summary judgment for Dr. Lim, finding that the Cashes failed to prove causation or that Dr. Lim s actions substantially made a difference in the outcome of Cash s condition, and Cash appealed. The court noted as a preliminary matter that on the motion for summary judgment, Dr. Lim and Pine Bluff had the burden of presenting evidence to sustain the motion, and that all proof submitted must be viewed in a light most favorable to Cash. Turning to the proof submitted by Dr. Lim and Pine Bluff on causation, the court examined the deposition of Dr. Hagans put forth by the defendants. Dr. Hagans deposition stated that he believed the first mammogram had been misread; that he would not testify as to the standard of care because he was not a radiologist; that he did not believe that anyone could state with reasonable medical certainty that the misreading affected the outcome; that the applicable standard was that it is best to remove a tumor as soon as possible; and that it was unknown whether removing the tumor earlier would have made a difference. The court found that Dr. Hagans testimony fell into the category of his not knowing one way or the other what the causative impact of the misreading might have been. Thus, finding that the testimony was insufficient to require countervailing proof from Cash, the court reinstated the action. Cash v. Lim, No (Ark. Nov. 6, 1995) (11 pages). New Jersey Appeals Court Dismisses Malpractice Action against Obstetrician Who Allegedly Failed to Detect Fetal Distress, Finding Plaintiffs Did Not Show Proximate Causation between this Failure and Baby s Death Linda Gardner was being treated by obstetrician Myron Pawliw during her pregnancy; her pregnancy was characterized as high risk due to two prior miscarriages and her use of fertility drugs, but things were proceeding normally. Gardner went to Pawliw for a regularly scheduled visit on December 21, 1988, a month before her due date, and informed him that the baby s activity had slowed and that she was experiencing a watery discharge. Pawliw responded that there was no cause for alarm and took no further action. The fetus was less active for the next few days, became more active for a day and then stopped moving completely. She returned to Pawliw s office on December 27, and tests revealed that the baby had died in the uterus. Gardner and her

4 HLD, v. 24, n. 1, p. 60 husband ( plaintiffs ) sued Pawliw ( defendant ) for medical malpractice, claiming that he failed to perform tests that would have shown a defect in the umbilical cord and consequently failed to induce an early delivery that would have given the baby an opportunity to survive. The trial court dismissed the suit at the close of the evidence, ruling that plaintiffs failed to present evidence of a proximate causal relationship between defendant s alleged malpractice and the baby s death. Plaintiffs appealed. The appeals court affirmed, finding that plaintiffs presented inadequate evidence to show a causal connection between defendant s actions and the alleged resulting harm to the baby. Plaintiffs did not present any evidence regarding the condition of the fetus at the December 21 visit to defendant s office, and thus did not discharge their burden of demonstrating within a reasonable degree of probability that negligent treatment increased the risk of harm posed by a preexistent condition. Although one of plaintiff s experts indicated that tests would have detected the fetal distress, he did not express an opinion that the fetus was in fact in stress at that time, and so could not conclude that tests would have produced positive results leading to the delivery of the baby. Therefore, the case was properly dismissed. Gardner v. Pawliw, No. A T1 (N.J. Super. Ct., App. Div. Nov. 6, 1995) (8 pages). Alabama Appeals Court Dismisses Malpractice Action against Pathologist Who Failed to Detect Lymph Node Cancer Because Plaintiff Did Not Show Proximate Causation Linda Pope underwent a needle biopsy after discovering a lump in her breast, and then was admitted to AMI Brookwood Medical Center ( Brookwood ) for a surgical biopsy. That biopsy confirmed that she had breast cancer. Dr. William Viar, Jr. performed a mastectomy in October 1986, and removed axillary lymph nodes and resected breast tissue, which was sent to Brookwood pathologist Dr. James Elder. Elder reported no cancer in the lymph nodes. In 1988, Viar discovered recurrent breast cancer in Pope. A second examination of the tissue samples revealed malignant cells in one of Pope s lymph nodes. She underwent an autologous bone marrow transplant and follow-up chemotherapy, but died in July Douglas Pope filed a medical malpractice action against Dr. Viar and Brookwood; he later added Dr. James Elder. Viar and Brookwood were voluntarily dismissed, and ultimately all claims were disposed of except the claim alleging wrongful death and Douglas Pope s loss of consortium claim. Elder moved for summary judgment, arguing that plaintiff did not present expert testimony showing that his failure to identify the malignant cells was the proximate cause of Pope s death. The trial court entered judgment for Elder, and plaintiff appealed. The appeals court affirmed, ruling that Dr. Elder made a prima facie showing that any failure on his part to properly interpret the subject slide was not the proximate cause of Pope s death, and plaintiff offered no substantial evidence to rebut that showing. Although there was general testimony at trial citing statistical data that the ability to treat a patient improves with early diagnosis, that testimony did not rebut defendant s expert testimony that even if she had been treated two years earlier, such treatment would not have effected her ability to survive. Plaintiff s experts did not testify that failure to make an earlier diagnosis of lymph node cancer lessened her chance of survival or worsened her condition. Since there was no evidence of proximate cause, the court ruled that summary judgment for defendant was correctly entered. Pope v. Elder, No (Ala. Ct. Civ. App. Dec. 1, 1995) (15 pages). New York Appeals Court Reinstates Suit against Physician over Patient s Suicide Richard O Sullivan, 44 years old, lived with his hemophiliac brother who was his only significant friend. Over a period of some twenty years, O Sullivan lost weight, suffered from stress-related acne, withdrew from normal daily activities, and was unable to work or socialize. O Sullivan sought psychiatric treatment from Presbyterian Hospital ( Hospital ), making initial contact on February 15, O Sullivan was interviewed by a third-year medical student supervised by Dr. Frederick Mendelsohn. Despite his abnormally low

5 HLD, v. 24, n. 1, p. 61 weight, O Sullivan was not given a physical examination, nor was his private physician contacted for any review of his medical records. On April 17, O Sullivan appeared at the hospital for group therapy, which had been recommended to him by Dr. Mendelsohn, but was rejected for the group due to his passive personality. O Sullivan was rejected for another group on April 26, and no other psychiatric treatment was planned for him on an interim basis. O Sullivan was rejected for another group in progress around May 3, 1989, but again was not offered any interim therapy or medication. On May 7, 1989, O Sullivan committed suicide by hanging himself, and O Sullivan s estate subsequently brought suit against Dr. Mendelsohn. The trial court granted summary judgment for Dr. Mendelsohn, finding that a general physician may not be held liable for a mere error in professional judgment, and the estate appealed. The appeals court held that the lower court erred in drawing the line between medical judgment and deviation from good medical practice. The court noted that plaintiff s expert, a board-certified psychiatrist, testified that the care O Sullivan received at the hospital was causally related to his suicide, and that the care deviated from acceptable standards. Further, independent investigations and reports by the Commission on Quality Care for the Mentally Disabled, the Mental Hygiene Review Board, the Chairman of the Department of Psychiatry at the University of Rochester Medical Center, and the New York State Office of Mental Health each found deficiencies in the quality and standard of care received by O Sullivan. Specifically, O Sullivan s needs were not adequately evaluated, physical examinations were not conducted, a protracted period of time elapsed before his admission or referral to appropriate services, and he was not given adequate follow-up treatment. The court found that given the substantial evidence presented by the plaintiff, there was no basis for the trial court to find as a matter of law that the examination was competent and that, therefore, the causal relationship between the treatment and O Sullivan s death was at best tenuous speculation. The court held that liability can and should ensue if medical judgment was not based upon intelligent reasoning or adequate examination so that there has been a failure to exercise any professional judgment. Therefore, finding the lower court s granting of summary judgment for Dr. Mendelsohn unwarranted, the appeals court reinstated the action by the patient s estate. O Sullivan v. Presbyterian Hosp., No (N.Y. App. Div. Nov. 30, 1995) (8 pages). EMTALA ACTIONS U.S. Court in Rhode Island Says EMTALA Plaintiff Need Not Allege Economic Motive for Denial of Care James Ribera went to the emergency room at Newport Hospital for treatment of his injured hand. A physician s assistant saw him and released him after an hour; his supervisor was Dr. Nina Mazur. Ribera returned to the emergency room three days later, was admitted to the hospital, lapsed into a coma and died of staphylococcal septicemia and meningoencephalitis with brain hemorrhages. His estate ( plaintiff ) sued the hospital and the treating staff under EMTALA and state law. Defendants moved to dismiss, arguing that the EMTALA claim failed because plaintiffs did not allege economic discrimination, and that the court, therefore, lacked federal question jurisdiction over the pendant state law claims. The federal district court found that Correa v. Hospital San Francisco, 1995 WL (1st Cir.) resolved most of the questions raised in this case. The Correa court found that EMTALA does not require an allegation that the hospital s neglect arose out of an economic motive. However, the district court found, Correa forbids any attempt to bring state malpractice claims -- including those arising out of misdiagnoses by healthcare providers -- under EMTALA. Congress did not intend to turn the federal courts into fora for state malpractice claims, but rather to provide a limited remedy for plaintiffs who sought and were denied aid in emergency rooms. Those claims raised by plaintiffs -- which attempted to transform the malpractice that allegedly occurred at the emergency room into federal causes of action -- failed accordingly, ruled the court. Since two of plaintiff s surviving claims were valid EMTALA claims against the hospital, the court ruled that exercising supplemental jurisdiction over the state law claims against the individual defendants was in the interest of judicial economy, and declined to dismiss the pendant state law claims. Hart v. Mazur, No L (D.R.I. Nov. 6, 1995) (10 pages).

6 HLD, v. 24, n. 1, p. 62 DEFENSES CROSS-REFERENCE: See also, Liles v. P.I.A. Medfield, Inc., No (Fla. Dist. Ct. App. Nov. 1, 1995) under DISABILITY ISSUES - Individual Challenges to Commitment or Treatment for a decision reinstating a suit alleging failure of hospital and physician to comply with the state s involuntary commitment law. DISCOVERY AND EVIDENTIARY ISSUES Minnesota Appeals Court Says Physicians Experienced in Diagnosing Brain Infections Could Testify as Experts in Malpractice Suits over Brain Abscesses and Rules that ERISA Pre-Empts State s Collateral Source Statute Jeffrey Koch brought a medical malpractice action against Dr. William Davidson and his clinic for their negligent failure to timely diagnose his brain infection. At trial, Koch s expert medical witnesses included Dr. John Fodden and Dr. James Martins. Dr. Fodden was board certified in pathology, Canadian certified in internal medicine, and consulted with general practitioners and internal medicine specialists in diagnosing influenza and brain cerebritis. Dr. Martins was board certified in family practice, treated and consulted in cases of influenza and brain cerebritis, and assisted on about three brain abscesses. A jury returned a verdict for Koch, and the district court entered a judgment against Dr. Davidson and Mork Clinic for $1,390,914, which reflected a $119,826 collateral source offset of payments from Koch s ERISA benefits contract with his employer. The clinic appealed the expert status of Dr. Fodden and Dr. Martins, as well as the denial of a remittitur, while Koch appealed the collateral source offset. The court first addressed the defendants challenge to allowing Dr. Fodden and Dr. Martins to testify as expert witnesses. The court noted that although an expert witness unfamiliar with a procedure cannot testify about it, consultations with treating physicians could constitute the needed practical experience. Noting that both doctors had experience analyzing CT Scan reports, knew the symptoms and progression of brain abscesses, and were familiar with the current literature on the disease, the court held that both had sufficient practical experience in diagnosing brain abscesses to testify as medical experts. The court also found that the district court did not err in admitting testimony about a textbook published after Koch s diagnosis, since the fundamental information was available at the time. Additionally, the court held that the lower court s failure to include a statement in the jury instructions that if a general physician fails to refer a patient to a specialist when appropriate, he is held to the standard of care of a specialist, did not distort the nature of Koch s cause of action. Finally, the court rejected the defendants argument that the lower court erred in refusing a remittitur in view of the extensive injuries, large medical bills, and profound effects of the infection on Koch s personality and lifestyle. The court then turned to Koch s appeal of the collateral offsetting of his award for payments made by his ERISA plan. The court noted that the scope of ERISA pre-emption is broad in that the statute expressly states that it shall supersede any and all state laws relating to any employment benefit plan. The court found that since the state collateral source statute listed elements that define an ERISA plan, the statute referred to such a plan. Further, the statute connected collateral source offsets to subrogation claims arising under ERISA benefit plans. Thus, because the state statute had both a reference to and connection to ERISA plan benefits, ERISA preempted its application. The court further noted that the ERISA contract and the state statute could conflict on when a subrogation interest is valid and enforceable. The court emphasized that such a conflict illustrates an underlying purpose of ERISA pre-emption -- to avoid changing a national plan to conform to varying state regulations. Thus, finding that ERISA pre-empts the state statute, the appeals court reinstated the $119,826 offset award for Koch s past medical expenses. Koch v. Mork Clinic, P.A., Nos. C and C (Minn. Ct. App. Nov. 14, 1995) (9 pages).

7 HLD, v. 24, n. 1, p. 63 DAMAGE ELEMENTS CROSS-REFERENCE: See also, Koch v. Mork Clinic, P.A., Nos. C and C (Minn. Ct. App. Nov. 14, 1995) under - Discovery and Evidentiary Issues for a decision holding that physicians with experience in diagnosing brain infections could testify as experts in malpractice suits over brain abscesses and ruling that ERISA pre-empts the state s collateral source statute. MISCELLANEOUS CROSS-REFERENCE: See also, Humana Kansas City, Inc. v. Continental Casualty Co., No CV-W-6 (W.D. Mo. Nov. 8, 1995) under INSURANCE - Professional Liability Insurance Issues for a decision granting summary judgment to a malpractice insurer in a suit by a policyholder over the insurer s alleged bad faith refusal to settle.