W4 Essay Quiz Questions

W4 Hall v. Hilbun, pages 299-314

Chapter 5

Liability of Health Care Professionals

■ ■ ■

This chapter will examine the framework for a malpractice suit against health care professionals and the doctrinal and evidentiary dimensions of such litigation. As you read the chapter, think about the cases and materials on three levels. First, how is the plaintiff’s case proved and how does the defendant counter it? Second, how does tort doctrine respond to medical error? And third, how does malpractice litigation affect medical practice and the cost and quality of medical care?

1. I. THE STANDARD OF CARE

A.ESTABLISHING THE STANDARD OF CARE

Hall v. Hilbun

Supreme Court of Mississippi, 1985. 466 So.2d 856 .

Robertson, Justice, for the Court:

I.

This matter is before the Court on Petition for Rehearing presenting primarily the question whether we should, as a necessary incident to a just adjudication of the case at bar, refine and elaborate upon our law regarding (a) the standard of care applicable to physicians in medical malpractice cases and (b) the matter of how expert witnesses may be qualified in such litigation.

* * *

When this matter was before the Court on direct appeal, we determined that the judgment below in favor of the surgeon, Dr. Glyn R. Hilbun, rendered following the granting of a motion for a directed verdict, had been correctly entered. * * *

For the reasons set forth below, we now regard that our original decision was incorrect. * * *

II.

Terry O. Hall was admitted to the Singing River Hospital in Jackson County, Mississippi, in the early morning hours of May 18, 1978, complaining of abdominal discomfort. Because he was of the opinion his patient had a surgical problem, Dr. R.D. Ward, her physician, requested Dr. Glyn R. Hilbun, a general surgeon, to enter the case for consultation. Examination suggested that the discomfort and illness were probably caused by an obstruction of the small bowel. Dr. Hilbun recommended an exploratory laparotomy [sic]. Consent being given, Dr. Hilbun performed the surgery about noon on May 20, 1978, with apparent success.

Following surgery Mrs. Hall was moved to a recovery room at 1:35 p.m., where Dr. Hilbun remained in attendance with her until about 2:50 p.m. At that time Mrs. Hall was alert and communicating with him. All vital signs were stable. Mrs. Hall was then moved to a private room where she expired some 14 hours later.

On May 19, 1980, Glenn Hall commenced this wrongful death action by the filing of his complaint * * *.

* * *

At trial Glenn Hall, plaintiff below and appellant here, described the fact of the surgery. He then testified that he remained with his wife in her hospital room from the time of her arrival from the recovery room at approximately 3:00 p.m. on May 20, 1978, until she ultimately expired at approximately 5:00 a.m. on the morning of May 21. Hall stated that his wife complained of pain at about 9:00 p.m. and was given morphine for relief, after which she fell asleep. Thereafter, Hall observed that his wife had difficulty in breathing which he reported to the nurses. He inquired if something was wrong and was told his wife was all right and that such breathing was not unusual following surgery. The labored breathing then subsided for an hour or more. Later, Mrs. Hall awakened and again complained of pain in her abdomen and requested a sedative, which was administered following which she fell asleep. Mrs. Hall experienced further difficulty in breathing, and her husband reported this, too. Again, a nurse told Hall that such was normal, that patients sometimes make a lot of noise after surgery.

After the nurse left the following occurred, according to Hall.

[A]t this time I followed her [the nurse] into the hall and walked in the hall a minute. Then I walked back into the room, and walked back out in the hall. Then I walked into the room again and I walked over to my wife and put my hand on her arm because she had stopped making that noise. Then I bent over and flipped the light on and got closer to her where I could see her, and it looked like she was having a real hard problem breathing and she was turning pale or a bluish color. And I went to screaming.

Dr. Hilbun was called and came to the hospital immediately only to find his patient had expired. The cause of the death of Terry O. Hall was subsequently determined to be adult respiratory distress syndrome (cardio-respiratory failure).

Dr. Hilbun was called as an adverse witness and gave testimony largely in accord with that above. * * *.

Dr. Hilbun stated the surgery was performed on a Saturday. Following the patient’s removal to her room, he “went home and was on call that weekend for anything that might come up.” Dr. Hilbun made no follow-up contacts with his patient, nor did he make any inquiry that evening regarding Mrs. Hall’s post-operative progress. Moreover, he was not contacted by the nursing staff or others concerning Mrs. Hall’s condition during the afternoon or evening of May 20 following surgery, or the early morning hours of May 21, although the exhibits introduced at trial disclose fluctuations in the vital signs late in the evening of May 20 and more so, in the early morning hours of May 21. Dr. Hilbun’s next contact with his patient came when he was called by Glenn Hall about 4:55 or 5:00 that morning. By then it was too late.

* * *

The autopsy performed upon Mrs. Hall’s body revealed the cause of death and, additionally, disclosed that a laparotomy [sic] sponge had been left in the patient’s abdominal cavity. The evidence, however, without contradiction establishes that the sponge did not contribute to Mrs. Hall’s death. Although the sponge may ultimately have caused illness, this possibility was foreclosed by the patient’s untimely death.

Plaintiff’s theory of the case centered around the post-operative care provided by Dr. Hilbun. Two areas of fault suggested were Dr. Hilbun’s failure to make inquiry regarding his patient’s post-operative course prior to his retiring on the night of May 20 and his alleged failure to give appropriate post-operative instructions to the hospital nursing staff.

When questioned at trial, Dr. Hilbun first stated that he had practiced for 16 years in the Singing River Hospital and was familiar with the routine of making surgical notes, i.e., a history of the surgery. He explained that the post-operative orders were noted on the record out of courtesy by Dr. Judy Fabian, the anesthesiologist on the case. He stated such orders were customarily approved by his signature or he would add or subtract from the record to reflect the exact situation.

[Dr. Hilbun testified as to the post-operative orders noted in the medical records as of May 20, 1978. Mrs. Hall had a nasogastric tube, an i.v., a catheter; she was receiving medications for pain, nausea, and infections. He testified that he checked on Mrs. Hall in the recovery room and stayed with her, took her vital signs, and discharged her to the floor. He confirmed on cross examination that he customarily followed his patient postoperatively, Until the patient left the hospital.]

* * *

Insofar as the record reflects, Dr. Hilbun gave the nursing staff no instructions regarding the post-operative monitoring and care of Mrs. Hall beyond those [summarized above]. Dr. Hilbun had no contact with Mrs. Hall after 3:00 p.m. on May 20. Fourteen hours later she was dead.

The plaintiff called Dr. S.O. Hoerr, a retired surgeon of Cleveland, Ohio, as an expert witness. The record reflects that Dr. Hoerr is a cum laude graduate of the Harvard Medical School, enjoys the respect of his peers, and has had many years of surgical practice. Through him the plaintiff sought to establish that there is a national standard of surgical practice and surgical care of patients in the United States to which all surgeons, including Dr. Hilbun, are obligated to adhere. Dr. Hoerr conceded that he did not know for a fact the standard of professional skill, including surgical skills and post-operative care, practiced by general surgeons in Pascagoula, Mississippi, but that he did know what the standard should have been.

* * * [T]he trial court ruled that Dr. Hoerr was not qualified to give an opinion as to whether Dr. Hilbun’s post-operative regimen departed from the obligatory standard of care. * * *.

* * *

Parts of Dr. Hoerr’s testimony excluded under the trial judge’s ruling follow:

A.My opinion is that she [Mrs. Hall] did not receive the type of care that she should have received from the general surgical specialist and that he [Dr. Hilbun] was negligent in not following this patient; contacting, checking on the condition of his patient sometime in the evening of May 20th. It is important in the post-operative care of patients to remember that very serious complications can follow abdominal operations, in particular in the first few hours after a surgical procedure. And this can be inward bleeding; it can be an explosive development in an infection; or it can be the development of a serious pulmonary complication, as it was in this patient. As a result of her condition, it is my opinion that he lost the opportunity to diagnose a condition, which in all probability could have been diagnosed at the time by an experienced general surgeon, one with expertise in thoracic surgery. And then appropriate treatment could have been undertaken to abort the complications and save her life.

There are different ways that a surgeon can keep track of his patient—“follow her” as the expression goes—besides a bedside visit, which is the best way and which need not be very long at all, in which the vital signs are checked over. The surgeon gets a general impression of what’s going on. He can delegate this responsibility to a competent physician, who need not be a surgeon but could be a knowledgeable family practitioner. He could call in and ask to speak to the registered nurse in charge of the patient and determine through her what the vital signs are, and if she is an experienced Registered Nurse what her evaluation of the patient is. From my review of the record, none of these things took place, and there is no effort as far as I can see that Dr. Hilbun made any effort to find out what was going on with this patient during that period of time. I might say or add an additional belief that I felt that the nursing responsibility which should have been exercised was not exercised, particularly at the 4:00 a.m. level when the pulse rate was recorded at 140 per minute without any effort as far as I can see to have any physician see the patient or to get in touch with the operating surgeon and so on.

There is an additional thing that Dr. Hilbun could have done if he felt that the nursing services might be spotty—sometimes good, sometimes bad. This is commonly done in Columbus, Ohio, in Ashtabula, Pascagoula, etcetera. He could put limits on the degree in which the vital signs can vary, expressing the order that he should be called if they exceeded that. Examples would be: Call me if the pulse rate goes over 110; call me if the temperature exceeds 101; call me if the blood pressure drops below 100. There is a simple way of spelling out for the nursing services what the limits of discretion belong to them and the point at which the doctor should be called.

* * *

Dr. Hilbun did not place any orders on the chart for the nurses to call him in the event of a change in the vital signs of Mrs. Hall. He normally made afternoon rounds between 4:00 and 5:00 p.m. but didn’t recall whether he went by to see her before going home. Dr. Hilbun was on call at the hospital that weekend for anything which might come up. Subsequent to the operation and previous to Mrs. Hall’s death, he was called about one other person on the same ward, one door down, twice during the night. He made no inquiry concerning Mrs. Hall, nor did he see or communicate with her.

Dr. Donald Dohn, of expertise unquestioned by plaintiff and with years of practical experience, gave testimony for the defendant. He had practiced on the staff at the Cleveland Clinic Foundation in Cleveland, Ohio, beginning in 1958. Fortuitously, he had moved to Pascagoula, Mississippi, about one month before the trial. Dr. Dohn stated he had practiced in the Singing River Hospital for a short time and there was a great difference in the standard of care in medical procedures in Cleveland, Ohio, and those in Pascagoula, Mississippi. Although he had practiced three weeks in Pascagoula, he was still in the process of acquainting himself with the local conditions. He explained the differences as follows:

Well, there are personnel differences. There are equipment differences. There are diagnostic differences. There are differences in staff responsibility and so on. For example, at the Cleveland Clinic on our service we had ten residents that we were training. They worked with us as our right hands. Here we have no staff. So it is up to us to do the things that our residents would have done there. There we had a team of five or six nurses and other personnel in the operating room to help us. Here we have nurses in the operating room, but there is no assigned team. You get the luck of the draw that day. I am finding out these things myself. Up there it is a big center; a thousand beds, and it is a regional center. We have tremendous advantages with technical systems, various types of x-ray equipment that is [sic] sophisticated. Also in terms of the intensive care unit, we had a Neurosurgical Intensive Care with people who were specially trained as a team to work there. From my standpoint personally, I seldom had to do much paperwork there as compared to what I have to do now. I have to dictate everything and take all my notes. So, as you can see, there is a difference.

Finally, he again stated the standard of care in Ohio and the standard of care in the Singing River Hospital are very different, although it is obvious to the careful reader of Dr. Dohn’s testimony that in so doing he had reference to the differences in equipment, personnel and resources and not differences in the standards of skill, medical knowledge and general medical competence a physician could be expected to bring to bear upon the treatment of a patient.

At the conclusion of the plaintiff’s case, defendant moved for a directed verdict on the obvious grounds that, the testimony of Drs. Hoerr and Sachs having been excluded, the Plaintiff had failed to present a legally sufficient quantum of evidence to establish a prima facie case. The Circuit Court granted the motion. * * *

III.

A.General Considerations

Medical malpractice is legal fault by a physician or surgeon. It arises from the failure of a physician to provide the quality of care required by law. When a physician undertakes to treat a patient, he takes on an obligation enforceable at law to use minimally sound medical judgment and render minimally competent care in the course of the services he provides. A physician does not guarantee recovery. If a patient sustains injury because of the physician’s failure to perform the duty he has assumed under our law, the physician may be liable in damages. A competent physician is not liable per se for a mere error of judgment, mistaken diagnosis or the occurrence of an undesirable result.

The twin principles undergirding our stewardship of the law regulating professional liability of physicians have always been reason and fairness. For years in medical malpractice litigation we regarded as reasonable and fair what came to be known as the “locality rule” (but which has always consisted of at least two separate rules, one a rule of substantive law, the other a rule of evidence).

* * *

C.The Physician’s Duty of Care: A primary rule of substantive law

1. The Backdrop

* * *

2. The Inevitable Ascendency of National Standards

* * *

We would have to put our heads in the sand to ignore the “nationalization” of medical education and training. Medical school admission standards are similar across the country. Curricula are substantially the same. Internship and residency programs for those entering medical specialties have substantially common components. Nationally uniform standards are enforced in the case of certification of specialists. Differences and changes in these areas occur temporally, not geographically.

Physicians are far more mobile than they once were. They frequently attend medical school in one state, do a residency in another, establish a practice in a third and after a period of time relocate to a fourth. All the while, they have ready access to professional and scientific journals and seminars for continuing medical education from across the country. Common sense and experience inform us that the laws of medicine do not vary from state to state in anything like the manner our public law does.

Medicine is a science, though its practice be an art (as distinguished from a business). Regarding the basic matter of the learning, skill and competence a physician may bring to bear in the treatment of a given patient, state lines are largely irrelevant. That a patient’s temperature is 105 degrees means the same in New York as in Mississippi. Bones break and heal in Washington the same as in Florida, in Minnesota the same as in Texas. * * *

* * *

3. The Competence–Based National Standard of Care: Herein of the Limited Role of Local Custom

All of the above informs our understanding and articulation of the competence-based duty of care. Each physician may with reason and fairness be expected to possess or have reasonable access to such medical knowledge as is commonly possessed or reasonably available to minimally competent physicians in the same specialty or general field of practice throughout the United States, to have a realistic understanding of the limitations on his or her knowledge or competence, and, in general, to exercise minimally adequate medical judgment. Beyond that, each physician has a duty to have a practical working knowledge of the facilities, equipment, resources (including personnel in health related fields and their general level of knowledge and competence), and options (including what specialized services or facilities may be available in larger communities, e.g., Memphis, Birmingham, Jackson, New Orleans, etc.) reasonably available to him or her as well as the practical limitations on same.

In the care and treatment of each patient, each physician has a non-delegable duty to render professional services consistent with that objectively ascertained minimally acceptable level of competence he may be expected to apply given the qualifications and level of expertise he holds himself out as possessing and given the circumstances of the particular case. The professional services contemplated within this duty concern the entire caring process, including but not limited to examination, history, testing, diagnosis, course of treatment, medication, surgery, follow-up, after-care and the like.

* * *

Mention should be made in this context of the role of good medical judgment which, because medicine is not an exact science, must be brought to bear in diagnostic and treatment decisions daily. Some physicians are more reluctant to recommend radical surgery than are other equally competent physicians. There exist legitimate differences of opinion regarding medications to be employed in particular contexts. “Waiting periods” and their duration are the subject of bona fide medical controversy. * * *We repeat: a physician may incur civil liability only when the quality of care he renders (including his judgment calls) falls below minimally acceptable levels.

Different medical judgments are made by physicians whose offices are across the street from one another. Comparable differences in medical judgment or opinion exist among physicians geographically separated by much greater distances, and in this sense local custom does and must continue to play a role within our law, albeit a limited one.

We recognize that customs vary within given medical communities and from one medical community to another. Conformity with established medical custom practiced by minimally competent physicians in a given area, while evidence of performance of the duty of care, may never be conclusive of such compliance. [ ] The content of the duty of care must be objectively determined by reference to the availability of medical and practical knowledge which would be brought to bear in the treatment of like or similar patients under like or similar circumstances by minimally competent physicians in the same field, given the facilities, resources and options available. The content of the duty of care may be informed by local medical custom but never subsumed by it.

* * *

4. The Resources–Based Caveat to the National Standard of Care

The duty of care, as it thus emerges from considerations of reason and fairness, when applied to the facts of the world of medical science and practice, takes two forms: (a) a duty to render a quality of care consonant with the level of medical and practical knowledge the physician may reasonably be expected to possess and the medical judgment he may be expected to exercise, and (b) a duty based upon the adept use of such medical facilities, services, equipment and options as are reasonably available. With respect to this second form of the duty, we regard that there remains a core of validity to the premises of the old locality rule.

* * *

A physician practicing in Noxubee County, for example, may hardly be faulted for failure to perform a CAT scan when the necessary facilities and equipment are not reasonably available. In contradistinction, objectively reasonable expectations regarding the physician’s knowledge, skill, capacity for sound medical judgment and general competence are, consistent with his field of practice and the facts and circumstances in which the patient may be found, the same everywhere.

* * *

As a result of its resources-based component, the physician’s non-delegable duty of care is this: given the circumstances of each patient, each physician has a duty to use his or her knowledge and therewith treat through maximum reasonable medical recovery, each patient, with such reasonable diligence, skill, competence, and prudence as are practiced by minimally competent physicians in the same specialty or general field of practice throughout the United States, who have available to them the same general facilities, services, equipment and options.

* * *

As we deal with general principles, gray areas necessarily exist. One involves the case where needed specialized facilities and equipment are not available locally but are reasonably accessible in major medical centers—New Orleans, Jackson, Memphis. Here as elsewhere the local physician is held to minimally acceptable standards. In determining whether the physician’s actions comport with his duty of care, consideration must always be given to the time factor—is the physician confronted with what reasonably appears to be a medical emergency, or does it appear likely that the patient may be transferred to an appropriate medical center without substantial risk to the health or life of the patient? Consideration must also be given to the economic factors—are the proposed transferee facilities sufficiently superior to justify the trouble and expense of transfer? Further discussion of these factors should await proper cases.

D.Who May Qualify As Expert Medical Witness In Malpractice Case: A rule of evidence

As a general rule, if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education (or a combination thereof), coupled with independence and lack of bias, may testify thereto in the form of an opinion or otherwise. Medical malpractice cases generally require expert witnesses to assist the trier of fact to understand the evidence.[ ]

Generally, where the expert lives or where he or she practices his or her profession has no relevance per se with respect to whether a person may be qualified and accepted by the court as an expert witness. There is no reason on principle why these factors should have per se relevance in medical malpractice cases.

* * *

In view of the refinements in the physician’s duty of care * * * we hold that a qualified medical expert witness may without more express an opinion regarding the meaning and import of the duty of care * * *, given the peculiar circumstances of the case. Based on the information reasonably available to the physician, i.e., symptoms, history, test results, results of the doctor’s own physical examination, x-rays, vital signs, etc., a qualified medical expert may express an opinion regarding the conclusions (possible diagnoses or areas for further examination and testing) minimally knowledgeable and competent physicians in the same specialty or general field of practice would draw, or actions (not tied to the availability of specialized facilities or equipment not generally available) they would take.

Before the witness may go further, he must be familiarized with the facilities, resources, services and options available. This may be done in any number of ways. The witness may prior to trial have visited the facilities, etc. He may have sat in the courtroom and listened as other witnesses described the facilities. He may have known and over the years interacted with physicians in the area. There are no doubt many other ways in which this could be done, but, significantly, we should allow the witness to be made familiar with the facilities (and customs) of the medical community in question via a properly predicated and phrased hypothetical question.

Once he has become informed of the facilities, etc. available to the defendant physician, the qualified medical expert witness may express an opinion what the care duty of the defendant physician was and whether the acts or omissions of the defendant physician were in compliance with, or fell substantially short of compliance with, that duty.

* * *

V.Disposition of the Case at Bar

[The court reversed and remanded for a new trial, on the grounds that the testimony of Drs. Hoerr and Sachs was improperly excluded, and with their testimony, the plaintiff might have survived the defense motion for a directed verdict.]

Notes and Questions

1.How does the court in Hall v. Hilbun view the customary practice of the defendant’s medical specialty? Why does it adopt this position? How much of a burden is it for a defendant to rebut the plaintiff’s evidence on customary practice? Could a plaintiff use the studies cited in Chapter 1 to support a position that the efficacy of a standard practice is not proven? How would a court react to such studies?

2.The medical profession sets standards of practice and the courts have historically enforced these standards in tort suits. Defendants trying to prove a standard of care normally present expert testimony describing the actual pattern of medical practice, without any reference to the effectiveness of that practice. Courts have traditionally given professional medical standards conclusive weight, so that the trier of fact is not allowed to reject the practice as improper. See, e.g., Doe v. American Red Cross Blood Serv., 297 S.C. 430, 435, 377 S.E.2d 323, 326 (1989) (involving issue of blood bank failing to screening for HIV/AIDS at time when customary practice was not to screen). The court held “in a professional negligence cause of action, the standard of care that the plaintiff must prove is that the professional failed to conform to the generally recognized and accepted practices in his profession. If the plaintiff is unable to demonstrate that the professional failed to conform to the generally recognized and accepted practices in his profession, then the professional cannot be found liable as a matter of law.”[ ].

3.The evidence of medical practice variation, in Chapter 1, certainly supports the argument that customary practices are often little more than habitual practices lacking evidence of efficacy. In tort litigation not involving professionals, courts are willing to reject customary practice if they find the practice dangerous or out of date. See Joseph King, In Search of a Standard of Care for the Medical Profession—the “Accepted Practice” Formula, 28 Vand.L.Rev. 1213, 1236 (1975) . Critics such as King worry that standard practice may at times be little more than a routine into which physicians have drifted by default.

4.The customary or accepted practice standard measures physicians against the standard of their profession, not merely the standard of a reasonable and prudent person. Medical practices are always evolving as new developments and scientific studies alter the customary practice. Such evolution in medical practices often creates tensions for the physician who believes that the customary practice is dangerous but the new standard has not yet been generally accepted. Courts have however been unwilling generally to allow a plaintiff to present evidence to attack a customary practice that the defendant physician complied with, except under rare circumstances. See, e.g., Burton v. Brooklyn Doctors Hospital, 88 A.D.2d 217, 452 N.Y.S.2d 875 (1982) , where the plaintiff was exposed while in the hospital as a newborn to a prolonged liberal application of oxygen and developed retrolental fibroplasia (RFL) as a result. At the time of his birth, a “significant segment of the medical community continued to believe that the liberal administration of oxygen to prematures was important in preventing death or brain damage. Yet, a respected body of medical opinion believed that oxygen contributed to RLF.” He was part of a study at the hospital examining various level of oxygen and the effects of its withdrawal or curtailment; the study found in 1954 that prolonged liberal use led to the development of RLF, and cutting off oxygen to premature infants after 48 hours decreased the incidence of RLF without increasing the risk of either death or brain damage. The court allowed a jury instruction to the effect that adherence to acceptable practice is not a defense if the physician fails to use his best judgment. See also Toth v. Community Hospital at Glen Cove, 22 N.Y.2d 255, 292 N.Y.S.2d 440, 239 N.E.2d 368 (1968) .

5.Physicians who hold themselves out as having specialized knowledge will be held to the standard of specialists with those enhanced qualifications. See Zaverl v. Hanley, 64 P.3d 809 (Alaska 2003) (affirmative steps to present himself or herself to public as specialist is sufficient to elevate the standard).

6.Hall provides an excellent discussion of the locality rule. Most states have moved from the locality rule to a similar locality or a national standard, in part due to worries about a “conspiracy of silence” that unfairly limits the pool of available experts. Doctors do not like to testify against one another. As the court noted in Mulder v. Parke Davis & Co., 288 Minn. 332, 181 N.W.2d 882 (1970) , “All too frequently, and perhaps understandably, practicing physicians are reluctant to testify against one another. Unfortunately, the medical profession has been slow to fashion machinery for making impartial and objective assessments of the performance of their fellow practitioners.”

Legislatures enacting malpractice reform statutes on the other hand have often imposed modified locality rule tests in order to protect physicians from out-of-state witnesses testifying for plaintiffs. See e.g. Henry v. Southeastern Ob–Gyn Associates, 142 N.C.App. 561, 543 S.E.2d 911 (2001) (“similar locality” test of N.C.Gen.Stat. S. 90–21.12 was intended to avoid the adoption of a national standard for health care providers).

Many courts, like Hall, also allow evidence describing the practice limitations under which the defendant labors. Hall’s “resource component” allows the trier of fact to consider the facilities, staff, and other equipment available to the practitioner in the institution, following the general rule that courts should take into account the locality, proximity of specialists, and special facilities for diagnosis and treatment. See, e.g., Primus v. Galgano, 329 F.3d 236 (1st Cir. 2003) (“permissible to consider the medical resources available to the physician as one circumstance in determining the skill and care required”); Restatement (Second) of Torts, § 299A, Comment g. (“Allowance must be made also for the type of community in which the actor carries on his practice. A country doctor cannot be expected to have the equipment, facilities, experience, knowledge or opportunity to obtain it, afforded him by a large city.”)

Note: Expert Testimony in Professional Liability Cases

The standard of practice in the defendant doctor’s specialty or area of practice is normally established through the testimony of medical experts. Hall illustrates the burden that the plaintiff bears. In any jurisdiction, plaintiffs, to withstand a motion for a directed verdict, must 1) qualify their medical witnesses as experts; 2) satisfy the court that the expert’s testimony will assist the trier of fact; and 3) have the witnesses testify based upon facts that support their expert opinions. The requirement that the expert be of the same specialty as the defendant typically governs the qualifying of the expert for testifying at trial. The standard of care may be based upon the expert’s own practice and education. See Wallbank v. Rothenberg, M.D., 74 P.3d 413 (Colo.App. 2003) (personal practices of medical experts may be relevant to the standard of care).

The abolition of the locality rule has been one way to ease the plaintiff’s burden of proof, broadening the plaintiff’s choices of available experts. Many states still require that the expert at least be familiar with the standard of practice in a similar locality, and some testimony is required as to the similarities between the two localities. See, e.g., First Commercial Trust Company v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996) (family practitioner was sued for medical negligence and failure to report suspected child abuse; held that Florida emergency room physician should have been allowed to testify on the standard of care for diagnosing child abuse).

Plaintiff’s experts normally must be in the same specialty as the defendant. Under some circumstances, however, courts have allowed physicians in other specialties to testify, so long as the alleged negligence involved matters within the knowledge of every physician. A general surgeon can testify as to the standard of care of a plastic surgeon performing elective surgery, as to general surgical issues as to whether nerves in the forehead should have been protected, Hauser v. Bhatnager, 537 A.2d 599 (Me.1988) ; a cardiologist can testify in a case involving a family practice physician, Fiedler v. Spoelhof, 483 N.W.2d 486 (Minn.App.1992) ; and a psychiatrist has been allowed to testify as to the standard of post-operative care for a breast implant procedure, Miller v. Silver, 181 Cal.App.3d 652, 226 Cal.Rptr. 479 (1986) .

An expert need not be board certified in the subject of the suit, so long as he has the appropriate education and experience. Hanson v. Baker, 534 A.2d 665 (Me.1987) . Some jurisdictions adopt a narrower view, requiring that the expert have practiced in the same area as the defendant. See Bell v. Hart, 516 So.2d 562 (Ala.1987) (pharmacist and toxicologist testimony disallowed).

Expert testimony is often based upon clinical literature, FDA statements, and other evidence of the standard of practice and of side-effects of treatments and drugs. Several sources of reliable and authoritative statements may be used by experts in professional liability cases, or relied upon by the trial judge as definitive.

a.Practice guidelines or parameters. Statements by medical societies as to good practice will provide a ready-made particularized standard that an expert can use as a benchmark against which to test a defendant’s conduct. See section B. infra.

b.Pharmaceutical package insert instructions and warnings. Package inserts may be used to establish the standard of care for use of the particular drug. In Thompson v. Carter, 518 So.2d 609 (Miss.1987) , the physician used Bactrim, a sulfonamide antibiotic, to treat the plaintiff’s kidney infection. She developed Stevens Johnson Syndrome, a severe allergic reaction associated with use of Bactrim. The court allowed the admission of the package insert, holding that the package insert was prima facie proof of the proper method of use of Bactrim, an “authoritative published compilation by a pharmaceutical manufacturer.”

c.Physicians Desk Reference (PDR). The PDR is allowed by most courts as some evidence of the standard of care, if an expert witness relies on it. See, e.g., Morlino v. Medical Center, 152 N.J. 563, 706 A.2d 721 (1998) . Other courts allow the PDR as prima facie evidence of the standard of the standard of care under some circumstances. See Garvey v. O’Donoghue, 530 A.2d 1141 (D.C. 1987) (holding that “ * * * in a medical malpractice case alleging improper administration, dosage, and monitoring of the drug, they are admissible as both prima facie evidence of the standard of care and physicians’ notice of their contents.”)

d.Judicial notice. When the defendant physician’s clinical decisions violate a clearly articulated practice within the specialty, courts are sometimes even willing in rare cases to make a finding of per se negligence. See Deutsch v. Shein, 597 S.W.2d 141 (Ky.1980) , where the defendant was negligent per se in ordering radiology and other tests on the pregnant plaintiff, injuring the fetus.

e.Substantive use of a learned treatise. At the common law, a treatise could be used only to impeach the opponent’s experts during cross-examination. It could only undercut the expert’s testimony, not build the plaintiff’s case. The concern was hearsay, because the author of the treatise was not available for cross-examination as to statements contained in the treatise. Federal Rule of Evidence (FRE) 803(18) creates an exception to the hearsay rule so that the learned treatise can be used for substantive purposes, so long as the treatise is accepted as reliable. Jacober v. St. Peter’s Med. Ctr., 128 N.J. 475, 608 A.2d 304 (1992) . An expert must be on the stand to explain and assist in the application of the treatise. Tart v. McGann, 697 F.2d 75 (2d Cir.1982) . The treatise must be declared reliable by the trial court after a motion by the moving lawyer to use the treatise substantively under FRE 803(18) or its state equivalent. Maggipinto v. Reichman, 481 F.Supp. 547 (E.D.Pa.1979) .

f.Expert reliance on research findings. Experts in malpractice cases base their testimony on their knowledge, education, and experience. They may also rely on outside studies in the research literature. On rare occasions, courts have allowed such research material into evidence in a malpractice suit. In Young v. Horton, 259 Mont. 34, 855 P.2d 502 (1993) , the court allowed into evidence four medical journal articles that had concluded that a majority of patients forget that they gave informed consent to their doctors prior to surgery. The medical expert then testified based both on his experience with informed consent and on the articles’ conclusions.

The admissibility of “novel” scientific evidence is often a thorny issue in environmental and toxic tort cases, although rarely in malpractice cases. The standard for evaluating such evidence was established by the Court in Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923) , a case in which Supreme Court considered the polygraph test and its limitations. The Court held that expert opinion based on a scientific technique is inadmissible unless the technique is “generally accepted” as reliable in the relevant scientific community.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993) , the Court again considered the admissibility of scientific evidence, in this case epidemiological and other evidence of birth defects caused by mothers’ ingestion of Bendectin. The Court rejected the Frye test of “general acceptability” as a threshold test of admissibility of novel scientific evidence, holding that the Federal Rules of Evidence, particularly Rule 702, make the trial judge the gatekeeper of such evidence, with the responsibility to assess the reliability of an expert’s testimony, its relevance, and the underlying reasoning or methodology. Expert testimony must have a valid scientific connection to the issues in the case, and be based on “scientifically valid principles”. The scientific evidence must pertain to scientific knowledge defined as falsifiable scientific theories capable of empirical testing.

The Supreme Court has extended the Daubert factors to all expert testimony, not just scientific testimony. In Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999) , the Court held that Daubert’s gatekeeping role for federal courts, requiring an inquiry into both relevance and reliability, applies not only to scientific testimony but to all expert testimony. The Court noted that this was a flexible test, not a checklist, and it is tied to the particular facts of the case. But “some of these factors may be helpful in evaluating the reliability even of experience-based expert testimony . . . ” Id. At 1176. The use of the Daubert test is to “make certain that an expert, whether basing testimony upon professional studies or personal experience, employs in the courtroom the same level of intellectual rigor that characterizes the practice of an expert in the relevant field.” Id. This would seem to impose a higher level of scrutiny on the typical malpractice expert, particularly in cases involving institutional liability, where the expert may testify about a system design in a hospital or a salary incentive system in a managed care system.

Courts have usually found that a qualified expert is reliable without going into the underlying scientific qualities of the opinion. See, e.g. Potter ex rel. Potter v. Bowman, 2006 WL 3760267 (D.Colo.2006) (“the touchstone of reliability is ‘whether the reasoning or methodology underlying the testimony is scientifically valid’”. * * *; [t]he party proffering the expert opinion must demonstrate both that the expert has employed a method that is scientifically sound and that the opinion is “based on facts which enable [the expert] to express a reasonably accurate conclusion as opposed to conjecture or speculation.” The court allowed all three of plaintiff’s witnesses to testify). But see Carlen v. Minnesota Comprehensive Epilepsy Program, 2001 WL 1078633 (D. Minn. 2001) (rejecting expert testimony for failing to satisfy Daubert factors.). The court concluded that the expert’s opinion on causation was not based on a proper differential diagnosis; while he reviewed several studies, there was no evidence as to the known or potential rate of error for his methodology of evaluating causation, or whether it was generally accepted within the medical community.

Questions

1. After examining Hall v. Hibun, define the local standards rule and the national standards rule and explain why (via Justice Robertson's reasoning) the courts have begun to adopt the national standards rule over the local rule when determining the appropriate level of care imposed upon the medical provider.

2) Explain the legal doctrine "Benefits Balancing" as it pertains to applying the reasonable standard of care doctrine in the medical fields. Does the defense that a majority of physicians normally do not give a particular diagnostic test in the normal course of events necessarily shield the doctors from liability?

3. May a treating physician be found liable for having negligently caused mental distress and damages in those instances in which no physical injury was suffered? What is the standard of care that a physician must demonstrate in order to be shielded from liability from a claim of negligent infliction of emotional distress?

4) What duties, if any, fall to a treating physician when a third-party payor (whether an insurance company or not) fails to advocate on behalf of the patient to gain approval of the prescribed treatment or services the physician in good faith believes is reasonably medically necessary for the patient's care?