A patient who goes to the emergency room, if conscious, is mostly concerned with getting care, not with untangling the contractual relationship between the hospital and the doctors who work there. And yet the characterization of the hospital-doctor relationship has profound implications for a patient’s ability to recover against the hospital for negligent treatment. This case asks us to decide when a hospital may be liable for the negligence of a doctor working in, but not as an employee of, a hospital in its emergency room.
In a recent post, https://www.videntpartners.com/blog/2023/medical-institutional-standard-care-and-liability-breach-independent-respondeat-superior, I discussed a case involving the death of a prisoner for lack of timely emergency treatment. Windhurst v.
This case is interesting for three reasons: The plaintiff engaged the wrong kind of expert; despite that fact, the jury returned a plaintiff’s verdict, which was reversed on appeal; and the opinion provides a useful explanation, which I have not seen before, of what makes an expert’s opinion “speculative, conclusory, and without a proper evidentiary foundation.”
Frankel v. Deane (Md. 8/25/2022), https://www.mdcourts.gov/data/opinions/coa/2022/43a21.pdf, illustrates the legal issue that is the title of this post. It also illustrates what is technically a legal issue (a trial court’s abuse of discretion in excluding expert medical testimony), but is actually a practical issue that every trial lawyer has to deal with sooner or later, even multiple times in the course of a long career: the nightmare trial judge. I will discuss the legal issue first.
In Ruan v. United States (No. 24-1410, 6/27/22), https://www.supremecourt.gov/opinions/21pdf/20-1410_1an2.pdf, the Court addressed the mens rea requirement of the Controlled Substances Act as applied to physicians. From the syllabus:
This is an obstetrical malpractice case. A caesarean section was delayed for several hours due to the negligence of both the treating physicians and the nurses, as result of which the baby sustained significant hypoxic brain damage during labor and was born with cerebral palsy. The plaintiff mother, suing on behalf of her child, settled with the physicians and proceeded to trial against the hospital that employed the nurses. Rodriguez-Valentin v. Doctors’ Center Hospital, No. 20-2093 (1st Cir.
The case is Clanton v. United States of America (No. 20-2059, 7th Cir., 12/17/2021) and once again, the opinion’s opening paragraph summarizes it better than any of my several attempts:
That’s an unkind title, I know. But really, when the plaintiff’s attorney submitted a pharmacist’s affidavit in opposition to a physician’s motion for summary judgment (which was supported by a physician’s affidavit), what did he think was going to happen?
When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc.
