The Utah Malpractice Act and Recent Case Law from Utah Courts. Michelle Swift, JD, RN

Transcription

1 The Utah Malpractice Act and Recent Case Law from Utah Courts Michelle Swift, JD, RN Patient Safety/Risk Management for Utah, Colorado, New Mexico, and Eastern Idaho, The Doctors Company; Salt Lake City, Utah Objectives: Explain common legal issues that face hospital based providers Describe how a malpractice claim is brought forward in Utah and the specific requirements in perfecting the claim against a hospital and/or a physican Discuss the difference between an employee and an independent contractor

2 Excellence in Trauma and Critical Care The Utah Malpractice Act and Recent Case Law from Utah Courts Michelle Swift, RN, JD The Doctors Company

3 Disclosure We would like to disclose that the faculty for today s program may have a financial interest in The Doctors Company, an organization that may have a direct interest in the subject matter of this CME presentation. 2

4 Utah Health Care Malpractice Act

5 Negligence, Proximate Cause, and Standard of Care It must be shown that the medical practitioner s negligence was a proximate cause of the injury to the patient. A health care provider-patient relationship creates a duty to treat the patient within the standards of care. The term standard of care relates to the provider s duty to exercise the degree of skill and learning ordinarily possessed and exercised, under similar circumstances, by other practitioners in his or her field of practice. 4

6 Cause of Action Shah v. IHC, 2013 UT App Facts: Car accident, Plaintiffs from Colorado, air lifted; tx /c spinal stabilization Lawsuit: On August 22, 2007, the Shahs submitted a proposed Second Amended Complaint to the court. This proposed complaint added claims for racketeering against LDS Hospital and claims for breach of fiduciary duty/fraudulent concealment, misrepresentation, breach of contract, breach of the implied covenant of good faith and fair dealing, violation of the Utah Consumer Sales Practices Act, intentional infliction of emotional distress, res ipsa loquitur, civil conspiracy, unjust enrichment, and spoliation of evidence against all of the Defendants / 5

7 Cause of Action (continued) Shah v. IHC, 2013 UT App Outcome: Denied opportunity to file second amended complaint. Despite attempts to call it by another name, negligence under the Utah Malpractice Act is controlling: Duty Breach Proximate Cause Damages / 6

8 Standard of Care Turner v. University of Utah Hospitals, Ut Ct. App., Dec 22, 2011 On August 11, 2002, Turner was ejected from an automobile in a single car rollover MVA. Emergency responders found Turner unconscious and unresponsive. Turner was admitted to the Neuro- Critical Unit (NCC) on bed rest with spine precautions.. / 7

9 Standard of Care (continued) On August 21, the Hospital performed an MRI scan on Turner, which showed injury to Turner s spinal cord and a change in alignment of her spine when compared to images from a CT scan obtained when she was admitted. Turner was now rendered paraplegic. 8

10 Standard of Care (continued) Turner alleges 2 breaches of the standard of care: 1. That the NCC nurse that admitted Turner was required to post a sign at the head of her bed to remind all care providers that Turner was a spine precaution patient this was not done until August That the NCC nurses did not utilize the log rolling procedure during the 11 days in question and, as a result, the nurses failed to adequately protect [Turner s] spinal cord from injury and moved her about so as to cause injury to her spinal cord. 9

11 Standard of Care (continued ) Question to the Court of Appeals Did the NCC nurses beach the standard of care? Nurse expert Brinker testified for Turner (P) since charts do not consistently note she was log rolled, therefore, she must not have been. In Kansas, nurses do not post a sign on the bed, and posting a sign is not a national standard. Despite this admission on cross-exam, Nurse Brinker insisted that it was a breach of the standard of care for NCC nurses not to post a sign because it was part of the Hospital s policy (a fact in dispute). 10

12 Standard of Care (continued ) Hospital s nurse expert testified there is no evidence that the NCC nurses breached the SOC. They were notified on admission, and they always log roll unless told to do otherwise. Though they do not chart every act of care, it does not mean it did not happen. 11

13 Standard of Care (continued ) Court of Appeals held: Given the strength of Nurse Worthen's testimony and the weakness of Nurse Brinker's testimony, we conclude that the jury would have reached the same verdict based on the properly admitted testimony. 12

14 Limitations on Actions Utah s Good Samaritan Act, is found in Utah Code Ann. 78B A person who renders emergency care at or near the scene of an emergency, gratuitously and in good faith, is not liable for any civil damages or penalties as a result of any act or omission by the person rendering the emergency care, unless the person is grossly negligent or caused the emergency... 13

15 Limitations on Actions Utah Code Ann A person licensed under Title 58, Occupations and Professions, to practice as any of the following health care professions, who is under no legal duty to respond, and who in good faith renders emergency care at the scene of an emergency gratuitously and in good faith, is not liable for any civil damages as a result of any acts or omissions by the person in rendering the emergency care. (Also protects physicians and RNs who give instructions at scene of emergency) 14

16 Limitations on Actions Utah Code Ann Emergency Room Physicians Old law: Preponderance of evidence standard New law: Clear and convincing evidence Provides extra protection to ED physicians due to the fact that Federal Laws require them to treat any patient, regardless of whether past medical history is known. If physician has had a previous relationship and can access records, this new higher standard does not apply. 15

17 Limitations on Actions Statute of Limitations A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect, or occurrence. Exception: Foreign object within 1 year after P discovers it or should have discovered it. If P has been prevented from discovering misconduct due to fraudulently concealment. Minors-tolled until age of majority 16

18 Pre-Litigation Panel 1985 Pre-Litigation Panel Requirement Excludes dentists Department of Commerce conducts hearings Tolls statue of limitations for 60 days post-hearing Allowed to have hearing even if arbitration agreement Obtain a Certificate of Compliance Confidential and not binding No cross examination right No reference to hearing can be used at trial Can be waived Usually 30-70% cases resolve at this step 17

19 Damages Collateral sources: disability coverage, insurance Attorney fees are limited to 33 1/3% of recovery Interest on damages post-judgment $450,00 non-economic damage Pain, suffering, and inconvenience. 18

20 Protections for Quality Assurance and Peer Review These statutes protect from discovery incident reports and peer review summaries which otherwise could be incriminating on the issue of liability. medical requests and treatment record subpoenas should not be construed as requiring production of these privileged documents. 19

21 I am Sorry (continued) Patient filed suit against the hospital, claiming that the IV administration of epinephrine caused her to suffer anoxic brain damage, cardiac damage, thoracic outlet syndrome, headaches, depression, anxiety, cognitive defects, and neck, shoulder, and back pain. The hospital agreed that the incorrect administration of epinephrine was a breach of the standard of care. However, the hospital asserted that the breach was not a direct, proximate, or contributing cause of any damages allegedly sustained by the patient. The appellate court found that other statements, including we messed up and there s been an incident, accident, could be viewed as statements of fault or complication and were not covered by the apology statute. Although the statements of fault were erroneously excluded, the appellate court found that the patient was not prejudiced by this exclusion and the jury verdict was upheld. 20

22 Arbitration v. Litigation Ongoing debate Certain healthcare providers even decline to provide care without the agreement Results can be seen as splitting the baby UMA has helpful guides for those who want to implement voluntary arbitration Not enforceable by non-signatory family members 21

23 Top Ten Specialty Practice Claims 1. Internal Medicine 2. OB/Gyn Practice 3. General and Family Practice 4. General Surgery 5. Orthopedic Surgery 6. Radiation Therapy 7. Anesthesiology 8. Plastic Surgery 9. Cardiovascular and Thoracic Surgery 10. Ophthalmology PIAA Report

24 Top Practice Risks Missed diagnosis Delay in diagnosis Documentation issues Communication Failure to follow up Clinical judgment Selection and management of therapy Technical skill 23

25 24 Questions?

26 Mission Statement (800) , ext Our Mission is to Advance, Protect, and Reward the Practice of Good Medicine For additional Patient Safety information, please visit our web site at When Patient Turns Plaintiff / 25

27 Overview of Utah Health Care Malpractice Law In 1976, with the enactment of the Utah Health Care Malpractice Act, statutes were adopted governing the handling of medical malpractice actions against health care providers within the State of Utah. Since 1976, that Act has been frequently amended, with the most significant amendments being made in 1979 and Negligence, Proximate Cause and Standard of Care. Utah Code Ann., 78B-3-403(17), states: Malpractice action against a health care provider means any action against a health care provider, whether in contract, tort, breach of warranty, wrongful death or otherwise, based upon alleged personal injuries relating to or arising out of health care rendered or which should have been rendered by the health care provider. The Utah Health Care Malpractice Act defines the term health care provider as follows: 78B-3-403(12). Health care provider includes any person, partnership, association, corporation, or other facility or institution who causes to be rendered or who renders health care or professional services as a hospital, physician, registered nurse, licensed practical nurse, nurse-midwife, dentist, dental hygienist, optometrist, clinical laboratory

28 technologist, pharmacist, physical therapist, podiatrist, psychologist, chiropractic physician, naturopathic physician, osteopathic physician, osteopathic physician and surgeon, audiologist, speech-language pathologist, certified social worker, social service worker, social service aide, marriage and family counselor, practitioner of obstetrics, or others rendering similar care and services relating to or arising out of the health needs of persons or groups of persons and officers, employees, or agents of any of the above acting in the course and scope of their employment. The Utah courts have held that in order for a patient to recover in a malpractice action against a health care provider, it must be shown that the medical practitioner was negligent and that the negligence was a proximate cause of the injury to the patient. A health care provider-patient relationship creates a duty on the part of the health care provider to treat the patient within the acceptable standards of care. The term standard of care relates to the health care provider s duty to exercise that degree of skill and learning

29 ordinarily possessed and exercised, under similar circumstances, by other practitioners in his or her field of practice. Expert testimony is required in all cases except those where the propriety of the treatment is within the common knowledge and experience of a lay person. The doctrine of res ipsa loquitur is also sometimes applied, meaning the negligence is so obvious as to speak for itself without requiring expert medical testimony. 2. Limitations on Actions Against Health Care Providers. Limitations on actions against health care providers are governed by statutes enacted by the legislature. The Utah legislature has given certain protections to health care providers, which protections the Utah Supreme Court has subsequently eroded through its decisions. This is an active area of current litigation and is of critical concern to insurance carriers who write coverage for medical malpractice. If a statute of limitations is clearly defined

30 and is of short duration, it creates less financial exposure for health care providers and their insurers. The so-called "good samaritan" laws provided some of the earliest protection to individuals who voluntarily and without compensation assisted in emergencies. Utah s Good Samaritan Act, is found in Utah Code Ann. 78B A person who renders emergency care at or near the scene of an emergency, gratuitously and in good faith, is not liable for any civil damages or penalties as a result of any act or omission by the person rendering the emergency care, unless the person is grossly negligent or caused the emergency... Even stronger civil liability protection exists for health care providers; provides the following:

31 A person licensed under Title 58, Occupations and Professions, to practice as any of the following health care professionals, who is under no legal duty to respond, and who in good faith renders emergency care at the scene of an emergency gratuitously and in good faith, is not liable for any civil damages as a result of any acts or omissions by the person in rendering the emergency care. Civil liability protection is also provided in 26-8a-601 for instructions given in emergency medical treatment. This statute protects licensed physicians or licensed registered nurses who give instructions to personnel at the scene of an emergency, unless the instructions were the result of gross negligence or willful misconduct. The Utah Legislature recently passed a bill that increases protection for Emergency Room Physicians against malpractice claims from patients, found in Utah Code Ann Under the former law, a plaintiff was required prove alleged malpractice by a preponderance of evidence. The new measure raises this standard to require the plaintiff to prove the malpractice via clear and convincing evidence, providing extra

32 protection to emergency room doctors due to the fact that federal laws require them to treat any patient, regardless of whether a past medical history is known. In cases where the doctor has a previous relationship with the patient and can access their records, this new higher standard does not apply. The medical malpractice statute of limitations is found in Utah Code Ann. 78B-3-404, and states, in part, as follows: (1) A malpractice action against a health care provider shall be commenced within two years after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered the injury, whichever first occurs, but not to exceed four years after the date of the alleged act, omission, neglect, or occurrence. (2) Notwithstanding Subsection (1): (a) in an action where the allegation against the health care provider is that a foreign object has been wrongfully left within a patient s body, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence should have discovered, the

33 existence of the foreign object wrongfully left in the patient s body, whichever first occurs; or (b) in an action where it is alleged that a patient has been prevented from discovering misconduct on the part of a health care provider because that health care provider has affirmatively acted to fraudulently conceal the alleged misconduct, the claim shall be barred unless commenced within one year after the plaintiff or patient discovers, or through the use of reasonable diligence, should have discovered the fraudulent concealment, whichever first occurs. (This statute is tolled until age of majority for minors.) 3. Miscellaneous Procedural Requirements in Medical Malpractice Actions. Utah Code Ann., 78B-3-409, states that, A dollar amount may not be specified in the prayer of a complaint filed in a malpractice action against a health care provider. The complaint shall merely pray for such damages as are reasonable in the circumstances.

34 Utah Code Ann., 78B-3-412, requires that a notice of intent to commence an action predate the filing of a complaint: No malpractice action against a health care provider may be initiated unless and until the plaintiff gives the prospective defendant or his executor or successor, at least ninety days prior notice of intent to commence an action. Such notice shall include a general statement of the nature of the claim, the persons involved, the date, time, and place of the occurrence, the circumstances thereof, specific allegations of misconduct on the part of the prospective defendant, the nature of the alleged injuries, and other damages sustained. Notice may be in letter or affidavit form executed by the plaintiff or his attorney.... The statute further notes that service may be by a legal process server or through certified mail, return receipt requested. If the notice is served less than 90 days prior to the

35 expiration of the statute of limitations period, the time for commencing the malpractice action is extended to 120 days from the date of service of notice. In 1985, health care providers successfully lobbied the Utah legislature for a Prelitigation hearing panel requirement for medical malpractice actions. Amendments to this system have subsequently been made. The hearings are handled by the Utah Department of Commerce and the regulations governing those hearings are found in Utah Code Ann. 78B through 78B The hearings apply to all cases filed after July 1, 1985, excluding those brought against dentists. These provisions require a party initiating a medical malpractice action to file a request for pre-litigation panel review with the Department of Commerce within 60 days after the filing of a statutory notice of intent to commence an action. This request is to be mailed to all health care providers named in the notice and request. The filing of a request for prelitigation panel tolls the applicable statute of limitations until 60 days following the issuance of an opinion by the pre-litigation panel. A three-member panel is appointed to listen to the case, and the

36 panels are composed of an attorney, a lay person, and a health care provider practicing in the same specialty as the Respondent. In 2013, Section 78B was updated with some significant changes. Any party in a medical malpractice action or arbitration hearing is now allowed to request a prelitigation panel review. (78B-3-418(c)(i)) Another change involves allocating fault to non-parties. A party in a medical malpractice action or arbitration hearing may not attempt to allocate fault to any healthcare provider unless a certificate of compliance has been issued in accordance with this section for that specific, individual health care provider. (78B-3-418(c)(i)) The party making the claim against, or seeking to allocate fault to, a health care provider is required to seek and obtain a certificate of compliance required by Subsection (1)(c). (78B-3-418(c)(ii)) What this means is that parties must allocate fault to any potential non-parties prior to the prelitigation hearing. No longer can allocation of fault be apportioned later on in the litigation process without going through another prelitigation hearing.

37 The pre-litigation panel hearings are confidential and not binding. Also, no cross examination right exists, and no evidence from or reference to the hearing can be later used at trial. At present, the hearings must be held within one hundred-eighty days of its request. In 1997, the Legislature amended the statute ( (3)(c)) to allow parties to waive a Pre-Litigation Hearing (if unanimous and in writing). We personally believe the panels to be beneficial and cost effective since they have served to resolve about onethird of the cases we have presented to the panel. 4. Statutes Governing Damages and Liability. Utah Code Ann. 78B-3-405, provides for a reduction from an award in a medical malpractice action for payments from certain collateral sources. These sources primarily include medical expenses and disability payments payable under the United States Social Security Act, any federal, state or local income disability coverage, or any other public program, except the federal programs which are required by law to seek

38 subrogation. The sources may also include health, disability or accident insurance if not subject to subrogation. See Utah Code Ann. 78B-3-405(3). Since May 15, 2010, Utah has had a $450,000 non-economic damage cap in medical malpractice actions. This does not adjust for inflation. Utah Code Ann. 78B states: In a malpractice action against a healthcare provider, an injured plaintiff may recover non-economic losses to compensate for pain, suffering, and inconvenience. The amount of damages awarded for noneconomic loss may not exceed: (a) for a cause of action arising before July 1, 2001, $250,000; (b) for a cause of action arising between July 1, 2001 and July 2, 2002, the limitation is adjusted for inflation to $400,000.

39 (c) For a cause of action arising on or after July 1, 2002, and before May 15, 2010 the $400,000 limitation is adjusted for inflation; and (d) For a cause of action arising on or after May 15, 2010, $450,000. Utah Code Ann. 78B places a limitation on attorney contingency fees in medical malpractice actions of 33 1/3% of the amount recovered. This limitation applies regardless of whether the recovery occurs by settlement, arbitration, or judgment, or whether an appeal is involved. In 1986, the Utah legislature also passed the Liability Reform Act which rejected the concept of joint and several liability among defendants. Utah Code Ann. 78B Interest on Damages.

40 Utah Code Ann. 78B authorizes pre-judgment interest on the economic damages in personal injury judgments at a rate of 7.5%. Post-judgment interest rates are governed by Utah Code Ann The post judgment interest rates for current and previous years are as follows: Calendar Year

41 Post Judgment Interest Rate % 2012

42 2.12% % 2010

43 2.41% % 2008

44 5.42% % 2006

45 6.36% % 2004

46 3.28% 6. Protections for Quality Assurance and Peer Review Information.. Utah Code Ann through -5, deals with confidential information released by health care providers. Because of a strong public policy to promote improved health care through internal peer review and reporting, the statutes were enacted to classify such information as privileged from production in any legal proceeding. These statutes protect from discovery in medical malpractice actions such things as incident reports and peer review summaries which otherwise could be incriminating on the issue of liability. For that reason, medical requests and treatment record subpoenas should not be construed as requiring production of these privileged documents. ARBITRATION vs. LITIGATION

47 1.Arbitration Legislation of In 1999, the Utah Healthcare Malpractice Act was amended to include a section on arbitration 78B U.C.A. This was an attempt to have the Utah Legislature give a stamp of approval to arbitration while including aspects of law previously set forth by the Utah Supreme Court in the Paulos case. Under the 1999 statute for a binding arbitration agreement between a patient and a healthcare provider to be validly executed, a number of requirements were established; the patient must be given a written and verbal explanation of arbitration, the patient s responsibility for related costs under the agreement must be disclosed, how the arbitrators would be selected must be described, and the right of the patient to decline to enter into the agreement and still receive healthcare must be clear. The patient also must be told of the right to rescind the document within the first thirty days. From 1999 to 2003, arbitration agreements were increasingly used although very few actions were ever arbitrated. Rather than to face challenges to arbitration, they often were

48 conducted pursuant to a high-low agreement. That is, plaintiffs were guaranteed a recovery in a set low. In return the patient could not receive more than the agreed upon high. Although this was a Solomon-type split the baby approach, it avoided legal challenges to arbitration and if a physician prevailed at the arbitration the low payment was not a reportable event on the National Practitioner Data Bank. The basis relied upon for not reporting the low to the NPDB is a one-page opinion dated June 19, Efforts to Strengthen Forced Arbitration and to Permit Medical Care to be Declined. Efforts by certain healthcare providers to strengthen arbitration agreements in 2003 proved problematic. IHC allegedly exercised heavy handed corporate tactics to force patients to arbitrate by the threat of declining medical care. Senate Bill 138 was signed into law by Governor Leavitt but was short-lived. This Bill gave a physician a right to take into account a patient s willingness to enter into an arbitration agreement in deciding whether or not to establish or continue a relationship with a patient (except for emergency

49 settings). A physician could also terminate a relationship with an existing patient who refused to sign an arbitration agreement as long as he did not abandon the patient by giving thirty days notice and by expressing a willingness to provide necessary medical services during those thirty days. This Bill went into effect May 5, 2003 at which time IHC allegedly began turning away patients in Salt Lake City and Bountiful who refused to sign mandatory arbitration agreements. Letters and editorials printed statewide were running about 2 to 1 against mandatory arbitration in general and about 5 to 1 against IHC in particular. An article resulted from the UMA dated February 10, 2004 What Happened to Mandatory Arbitration which traces the evolution of SB 245 which was a compromise Bill submitted to the legislature to try to salvage medical arbitration. 3. Current Law Regarding Medical Arbitration. IHC rescinded its forced arbitration policy after a highly publicized battle involving patient s advocacy groups and trial lawyers. The law enacted in May 2003, which

50 allowed doctors to refuse treatment to non-emergency patients unless they agreed that any malpractice claims would be resolved by arbitration instead of lawsuits, was abandoned. Utah s restricted Arbitration Law, 78B-3-421, provided two helpful changes to the statute; it removed the requirement of a verbal explanation to patients and it reduced the time to rescind from thirty to ten days. The efforts of plaintiffs groups to reduce the arbitrators from a three member panel to a one person panel were also defeated. The Utah Medical Association (UMA) proposed the use of three arbitrators, rather than one, for the following reasons: (1) more expertise on the panel is better than less; (2) parties can have greater confidence in the decision because it is not just one person s opinion; and (3) arbitrators can reason, discuss, and decide difficult issues as a group rather than in a vacuum. Recently arbitration success and increased awards for patients has been observed. However, some healthcare providers argue that arbitration is still a quicker and cheaper solution that may curb the soaring costs of medical malpractice insurance. (The Utah Medical Association has some helpful guides for those who want to implement voluntary arbitration.) 4.

51 Arbitration Agreements Not Enforceable in Wrongful Death Actions. In Bybee v. Abdulla, 189 P.3d 40, Utah 2008, the Utah Supreme Court held that an arbitration agreement between a physician and the decedent was not enforceable in wrongful death actions brought by non signatory family members of the decedent. This case has been interpreted to preclude physicians from enforcing arbitration agreements in wrongful death actions. In addition, Utah Plaintiff attorneys commonly cite dicta from the Bybee decision to support their contention that Utah s Non-Economic Damage Cap does not apply to wrongful death actions; nevertheless, the Bybee decision never directly addressed the Damage Cap and its application to wrongful death actions remains valid Utah Law. 5.Options Regarding Medical Arbitration. In hindsight, the use of arbitration agreements from 1990 and until recently was not very effective due to the unsettled nature of the law and reluctance to enforce the agreements

52 without a high-low compromise. Arbitration may be helpful for select specialties such as obstetrics and anesthesiology where jury verdicts in excess of policy limits are a possibility. Malpractice attorneys recently polled feel the panel composition is the greatest danger to the future of arbitration in Utah. One argued there were not enough experienced malpractice lawyers to serve on the panels and that over time they could be corrupted by knowing who butters their bread in giving them the greatest bulk of business for these cases. Arbitrators arguably remove the emotion from the claims more than jurors; and they are generally aware of the realities of insurance coverage and collectibility of judgments. Utah is still a relatively conservative state, particularly in rural communities where it may be much more advantageous to litigate than to elect arbitration. That is, you lose any home turf advantage through arbitration. If trial is not desired, then mediation (nonbinding) is always an alternative. It may be true that litigation may cost more (according to some studies) and take longer to complete; but jurors in Utah may still treat health care providers better than a panel of arbitrators. A lot depends upon the lawyer and the

53 physician or entity. Some professional insurers have gone through the cycle of attempted arbitration in other states and now prefer jury trials.