New Hampshire Association Of Justice – November 2010 CLE – Medical Negligence

MEDICAL NEGLIGENCE

I. Epidemic of Malpractice

In 1999, the Institute of Medicine published a study indicating that as many as 98,000 hospitalized Americans died annually from medical errors (Kohn, Linda, and Corrigan, Janet To Err is Human; Building a Safer Health System, (Washington, D.C.: National Academy Press, 1999)). A more recent study increased that estimate to 195,000 deaths of hospitalized patients annually in the U.S. due to medical errors (these estimates exclude deaths attributable to office based, clinical, home care, nursing home, and outpatient malpractice)(Healthgrades, “Patient Safety in American Hospitals”www.healthgrades.com (2004)). Such avoidable deaths exceed the number of deaths caused by motor-vehicle accidents, work-place accidents, breast cancer and AIDS combined. That same study estimated that for the three-year period of 2000 – 2002, an additional $19 Billion was spent in patient care as a result of that negligence (Healthgrades, “Patient Safety in American Hospitals” www.healthgrades.com (2004)).

Part of the explanation for the high error rate in the medical profession is attributed to that profession’s “culture of perfectionism.” Medical professionals are taught to view mistakes as being unacceptable and even a character flaw (Leape, Lucian “Error in Medicine,”JAMA December 21, 1994 Volume 272 No. 23). This culture results in shame and humiliation for medical care providers who make mistakes (Hilfiker, David Facing Our Mistakes, in Margin of Error: The Ethics of Mistakes in the Practice of Medicine 87, 92 (2002)). Consequently, medical care providers are discouraged from reporting or admitting to mistakes, which inhibits the ability to learn from mistakes both individually and institutionally.

II. Case Selection

a. Difficult Cases

Despite the prevalence of medical negligence and the catastrophic injuries and costs associated with it, the victims of such negligence and their advocates are often vilified (Brooks, Janet “U.S. Grapples with Solutions to Preventable Medical Errors,” CMAJMarch 31, 2009, 108(7)). The plaintiff in a medical negligence case not only bears the burden of proof, but must persuade skeptical jurors who have heard the refrain, “frivolous medical malpractice lawsuit,” so many times that they presume all such claims are meritless, or even if not, a greater good may be served by rendering a verdict for defendants in such cases.

Other obstacles to successful pursuit of malpractice claims include the fact that the defendants and their insurers have abundant resources and easy access to capable experts and counsel, the key evidence in most medical negligence cases is contained within the medical records which have been authored by the defendants themselves, and any internal investigation that may have taken place is likely protected from discovery by peer review. In addition, unlike any other tort action in New Hampshire, medical negligence claims are now required to first be heard by a “screening panel,” further burdening injured patients and their advocates in the pursuit of such claims.

Studies have shown that the tort system through its case screening process has proven very effective in eliminating non-meritorious claims (Bohan, Stephen, M.D. “Does a Policy of Disclosing Medical Errors and Offering Compensation Affect Malpractice Claims?” Journal Watch Emergency Medicine, October 1, 2010). It has become axiomatic that lawyers need to be highly selective in case screening for medical negligence cases.

b. Some Criteria for Selection

The case-selection process can require a great deal of time and expense. Although many cases can be rejected without much time or expense, it is not uncommon that client meetings, the gathering and review of medical records, and consultations with expert(s) will be required before a decision can be made whether to accept representation of a plaintiff in a medical negligence case. Some of the criteria that one should consider in analyzing whether to accept a malpractice case include:

• Damages
  Due to the substantial cost and time requirements for such cases, as a general rule, unless a jury would likely award damages in excess of $250,000.00 in a particular case, it would be prudent to decline pursuing it.

• Negligence
  RSA 508:13 requires proof that the defendant(s) failed to act in accordance with the standard and recommended practices and procedures of his or her profession. The medical records and the medical literature need to be carefully examined and consultation with an expert(s) may be required in order to make an informed decision as to whether the defendant(s) violated the standard of care.

• Causation
  RSA 507-E:2(I) requires that the plaintiff in a malpractice case prove that the injuries he/she has suffered would not otherwise have occurred. The defense commonly defends malpractice cases on that basis. The pertinent jury instruction for legal cause in medical negligence cases is as follows:

  “Failure to exercise reasonable professional care amounts to legal fault if you find that it was a legal cause of the injury or harm. When is professional negligence a legal cause of harm? When the negligent conduct is a substantial factor in bringing about the harm, and if the harm would not have occurred without that conduct.” (NH Civil Jury Instructions §13.1)

  Since patients seek care for an injury or illness that even without negligence may have resulted in the claimed damages, it is necessary to prove that the defendant’s negligence was a substantial factor in bringing about the harm, as opposed to an outcome that was inevitable due to an underlying problem.

• Experts
  Do the experts have the appropriate credentials to critique the care involved and to support causation? Will those experts be credible and persuasive in their testimony?

• Plaintiff
  It is important that you be comfortable in the attorney-client relationship with your prospective client. It would be wise to avoid clients whose expectations are unreasonable or who are solely motivated by financial gain. Since malpractice cases can be challenging and emotionally taxing, it is important that you have confidence that your prospective client will act reasonably under the strains of litigation.

• Comparative Fault
  Is there a basis for a potential defense that the plaintiff was responsible for his or her own injuries?

• Costs
  Estimating the costs to be incurred in obtaining medical records, medical literature and expert review need to be factored into decision making as to whether to select a case for further consideration.

III. Experts

RSA 507-E:2(II) mandates that a plaintiff prove by affirmative evidence, which must include expert testimony of a competent witness, that the defendant failed to act in accordance with the applicable standard of care which proximately caused injuries, which would not have otherwise occurred. Thus, expert testimony is an essential part of all medical malpractice claims, with the rare exceptions where an alleged negligent act was “within the purview of the average juror,” (Powell v. Catholic Medical Center, 145 NH 7 (2000)) or where the compelling facts and circumstances warrant a jury instruction of the Doctrine of Res Ipsa Loquitur (Boisvert v. Sluyters, et al. Hillsborough County Superior Court, Northern District, 04-C-0421 Order dated October 4, 2006).

Since the plaintiff bears the burden of proving the applicable standard of care, it is incumbent upon plaintiff’s counsel to retain experts who are qualified to prove that standard of care, the defendant(s) breach thereof, and the harm that was caused. Usually that will mean hiring at least one expert in the same specialty as the defendant, but that is not uniformly true.

New Hampshire Rule of Evidence 702 establishes an expert’s qualifications on the basis of “knowledge, skill, experience, training or education.” Whether a particular expert is qualified will be determined on a case-by-case basis within the sound discretion of the trial court (Mankowski v. Briley, 137 NH 308 (1993); Figlioli v. R. J. Moreau Companies, Inc., 151 NH 618 (2005)).

Based upon those principles, the New Hampshire Supreme Court has made the following rulings regarding expert qualifications based on the facts in specific cases:

1. A general and vascular surgeon was not qualified to testify regarding the plaintiff’s neurological impairment or whole person impairment (Figlioli v. R. J. Moreau Companies, Inc., 151 NH 618 (2005);

2. An obstetrician was permitted to testify as to causation regarding nerve injuries rising from shoulder dystocia in a delivery (O’Donnell v. HCA Health Services of New Hampshire 152 NH 608 (2005));

3. An ophthalmologist was permitted to testify regarding the standard of care for emergency room physicians (Hodgdon v. Frisbie Memorial Hospital 147 NH 286 (2001));

4. Excluded testimony of a pharmacologist regarding the standard of care for an ophthalmologist (Bissette v. Renna, 142 NH 788 (1988);

5. Permitted a family practitioner to testify regarding a matter ordinarily within the purview of a gynecologist (State v. Pelletier, 818 A.2d 292 (MH 2003));

6. Upheld the exclusion of a nurse practitioner’s testimony regarding the standard of care for inpatient detoxification criteria and the cause of mental illness (Smith v. HCA Services d/b/a Portsmouth Regional Hospital, 977 A.2d 534 (NH 2009)).

IV. Discovery

The same discovery rules that apply to other civil actions, apply to medical negligence cases. Discovery may be obtained through depositions, interrogatories, requests for document production, requests for admission, and other means (Superior Court Rule 35(a)). Similarly, the scope of discovery is broad, including any matter not privileged which is relevant to the subject matter (Superior Court Rule 35(b)).

In addition to the background questions contained in interrogatories, consideration should be given to asking questions focusing on the defenses likely to be raised, including the defendant’s differential diagnosis, reasons for selecting a particular test or treatment, and claims of comparative fault. Although many plaintiff’s attorneys believe asking such questions will actually elicit responses prepared by defense counsel, such questions can prove to be useful. Since interrogatories are often the first form of discovery, the defense will likely be less familiar with the pertinent facts and may not have yet had an opportunity to consult with an expert. Thus, the defense may be less prepared to craft a response that will conform with its eventual defense. Substantiative questions may also reveal unanticipated issues. For example, without substantiative interrogatory questions, plaintiff’s counsel may be unaware of an alleged undocumented patient refusal to follow medical advice, which could leave plaintiff’s counsel surprised and ill prepared to address such an issue at deposition.

Depositions of parties and their experts remain the most important discovery in these cases. Adequate preparation for the depositions of medical-care providers requires substantial time and effort. Counsel needs to be thoroughly familiar with the medical record, the relevant medicine, including pertinent medical literature, and any pertinent protocol or policies and procedures. Only with that background can one make meaningful inquiry into the thinking and defenses of a recalcitrant witness, who has training and experience in the area of medicine in question.

RSA 151:13-a and RSA 329:29-g create quality-assurance privileges for health-care providers that are unavailable to other defendants in civil actions. The New Hampshire Supreme Court gave broad interpretation to RSA 151:13-a in In Re: K 132 NH 4 (1989). Although such privileges should be strictly construed, practical impediments to overcoming them may be encountered. Still, inquiry should be made to determine whether the privilege has been appropriately asserted. For example, the privilege does not shield information obtained outside of the peer review process, merely upon its presentation to a peer review or quality assurance committee. Rather, only the records “generated during the activities of the quality assurance committee” are protected from discovery (RSA 151:13-a). Consequently, only retrospective records created for peer review purposes should be considered privileged.

V. Screening Panels

RSA 519-B was enacted in 2005. Since then, all “actions for medical injury” have been referred to screening panels for a preliminary “hearing” on the merits of the action (RSA 519-B:5). Such panels are comprised of a retired judge, an attorney and a health-care provider (usually within same specialty as that of the defendant) (RSA 519-B3). The panel is charged with making the same findings pertaining to liability as the jury in such actions; namely:

a. Whether there was a deviation from the applicable standard of care;

b. Whether such deviations proximately caused injuries; and

c. Whether fault on the part of the patient equaled or exceeded that of the defendant (RSA 519-B:6).

All proceedings conducted before the screening panel are confidential (RSA 519-B:8). However, unanimous findings are admissible into evidence in a subsequent jury trial with limited jury instructions (RSA 519-B:9). The effect of this mandatory pre-litigation process has been to significantly increase the already enormous cost and difficulty of pursuing medial negligence cases. Because a unanimous finding against a plaintiff may impact a jury’s ultimate decision, great effort and cost are often required to try to prevent that occurrence.

However, there is a substantial question as to the constitutionality of that statute. In the case of Eaton v. Fleet, Carroll SS 08-CV-074, Judge Houran prohibited the introduction of the findings of a screening panel because he ruled that RSA 519-B violated the “Separation of Powers Doctrine,” contained in Part 1 Article 37 of the New Hampshire Constitution. Since Judge Houran’s 2009 Order in Eaton, Judge Garfunkel has adopted that reasoning and similarly excluded a screening panel’s finding (Landry v. Garstka, M.D., Hillsborough SS, Northern District 08-C-061). An excellent article authored by Heather Menezes on this topic will appear in the upcoming addition of the Trial Bar News.

VI. Mediation/Trial

Again, preparation is key to a successful settlement in mediation, or verdict at trial. Counsel must be intimately familiar with the facts contained in the medical record, the depositions and other discovery, and the medical literature. A mediation summary should be submitted in advance of mediation to educate the mediator as to the underlying facts, your analysis as to why your client should prevail, and the damages incurred. Similarly, the trial of a persuasive case requires the gathering of evidence necessary to support a favorable verdict. An order of witnesses needs to be determined and an outline of questions for each witness prepared. Additionally, the exhibits to be introduced and examined with each witness needs to be determined and gathered.

It is beyond the scope of this seminar to outline the many issues of trial strategy that arise in medical negligence cases, but it is important to present a case which is focused and concise. Since a plaintiff bears the burden of proof and since medicine can be complicated and confusing, it is necessary to simplify the issues for the jury. This task can be helped by defining medical terminology, using illustrations or other demonstrative evidence, and keeping the allegations and evidence as simple and understandable as possible.

Medical literature can play a key role in malpractice cases. The Learned Treatises Exception to the hearsay rule permits the admission of medical treatises or periodicals, which are established as reliable authority (N.H. Rules of Evidence 803(18). Ordinarily if you intend to use such an exhibit, it should be established as being a reliable authority through your own expert. With such evidence, you can bolster your experts’ opinions and undermine those of the defense. This hearsay evidence, although not ordinarily as persuasive as that of a live expert, can often be a powerful endorsement of your experts’ opinions or a powerful critique of those of the defense.