Daniels v. Gamma: a Basketful of Medical Malpractice Rulings

In Daniels, the Utah Supreme Court addressed a number of medical malpractice issues together with general trial issues.  Here is the gist:

1. The statute of limitations in a medical malpractice action does not begin to run until the patient discovers the legal cause of his/her injury.  “Legal cause” includes the fact that the patient has been injured, that the injury was caused by negligence, and the precise causal event leading to the injury.

2.  Evidence that two defendant doctors were insured by the same company is not relevant evidence and should be excluded at trial unless there exists a “substantial connection between the witness and the insurance company,” such as where the defendants have an employment or control relationship with the insurance provider.

3. A claim for punitive damages under a gross negligence cause of action may only succeed if the gross negligence is both “knowing” and “reckless.”  The latter element is part of the gross negligence cause of action while “knowing” is a separate element that must be plead and proven in addition to the recklessness.

4. Physicians owe their patients fiduciary duties, however, those duties may be abrogated or modified by statute.  In this case, the duties of disclosure are, in part, abrogated by Utah’s informed consent statute.  A noted exception is the “Nixdorf” disclosure requirement in which a physician has a duty “to disclose to his patient any material information concerning the patient’s physical condition.”

The Court’s clarification regarding breach of fiduciary duty is a potential landmine.  Breach of fiduciary duty often carries by implication the threat of punitive damages.  As noted, there must be proof of knowing and reckless disregard of the patient.  Such allegations, however, may be perceived as easier to make when fiduciary duties are applied instead of the usual professional malpractice or negligence claim.  I suspect that there is more fruit on this tree that this Court is willing to pick in the right case (i.e., the Court declined to rule on Daniels’ assertion of duties of good faith and loyalty because the claims were not adequately briefed).  Good luck.

Utah Legislature Modifies Medical Malpractice Claims Part 2

As reported here previously, the Utah Legislature was considering modifying medical malpractice claims in Utah in two ways: increasing the standard of proof required in medical malpractice cases against health care providers, i.e., doctors and hospitals, to a clear and convincing evidence standard for all care provided in the emergent situations and requiring medical experts submit to the jurisdiction of the Utah Physician’s Licensing Board.  The Legislature ultimately axed the second (and potentially problematic) part of the amendments concerning experts.  What the Utah Legislature passed is a heightened standard of care applicable to all health care providers in emergent situations.  The Legislature also included a limitation for physicians in which the heightened standard does not apply to a physician if the patient was already a patient of the physician before the emergency room encounter, the physician had treated the complained-of malady within the last three months, and the physician can consult the patient’s medical records while providing the emergency care.  This limitation is very limited and will unlikely apply in most or many circumstances.

As discussed previously, the change from a preponderance of the evidence standard as to fault to the clear and convincing evidence standard is a matter of degree that is imprecise.  Whether this new law has any affect on medical malpractice claims remains to be seen.

Utah Legislature May Materially Alter Medical Malpractice Claims

The Utah Legislature currently has a bill before it, SB 79, that would increase the standard of proof required in medical malpractice cases against health care providers, i.e., doctors and hospitals, to a clear and convincing evidence standard for all care provided in the emergency department.  The heightened standard would apply until the patient is stabilized and either admitted to another department or is discharged.  The heightened standard would also continue with the patient if transported to another facility.  If passed, emergency room physicians and hospitals would receive a broad protection from lawsuits since the prevailing “preponderance of the evidence” standard is the evidentiary equivalent of “more likely than not,” i.e., at least 51%.  See MUJI 2d CV117.  “For evidence to be clear and convincing, it must at least have reached the point where there remains no substantial doubt as to the truth or correctness of the conclusion” but proof beyond a reasonable doubt is not required.  MUJI 2d CV118.

Although the heightened standard above is the lightning rod issue part in the bill, the remaining changes could likewise be as monumental.  The bill also proposes changes to the status of medical experts by granting experts a temporary license to practice in Utah for the purpose of testifying “against a physician” (no mention of hospitals or other healthcare providers here) at the price of being subject to “the authority and disciplinary actions of the [Physicians Licensing Board].”  The bill could arguably be read to only apply to experts retained by plaintiffs but not to experts retained by physicians in their defense.  This is more likely a defect of the language and not the intent of the legislature, but it should be clarified to be sure.  The bill appears to respond to a recent case in which the Utah Supreme Court overturned a trial court in which the trial court had excluded a medical expert who was not licensed to practice in Utah (then again, maybe not).  In that case, an out of state expert was alleged to have provided medical care to asbestos plaintiffs in a hotel room and later expert opinion based on that encounter.  In any event it is the last part of the bill that makes a difference because the bill goes on to amend the physician’s “Unprofessional Conduct” section to include the following within the definition of unprofessional conduct:

(3) providing expert medical testimony:
(a) on a contingency fee basis in any action for injury or death arising out of the
provisions of or failure to provide health care services; or
(b) that is false or completely without medical foundation, including:
(i) without a thorough review of the medical records of the claimant;
(ii) without a physical examination of the claimant where appropriate or convenient;
(iii) without foundation in accepted science-based medical research; or
(iv) not based on current standards of care for Utah.

An out of state expert who is retained to provide expert testimony in a medical malpractice case against a physician in Utah will be subjecting him or herself to the jurisdiction of Physicians Licensing Board.  If an expert is found to be involved in “unprofessional conduct,” the expert may be charged with a third degree felony and/or fined up to $10,000.  The bill rightly aims to decrease the retention of experts who say whatever the attorney hiring them pays them to say.  Does it do more?  It could have a chilling effect on the ability of both doctors and patients to find out of state physicians willing to testify in a Utah case if there is a possibility of being dragged into Utah to answer an unprofessional conduct charge.  It is arguable that under the bill’s language an out of state expert’s opinion could be “completely without medical foundation” if it is “not based on current standards of care for Utah.”  What are the “current standards of care for Utah”?  Are the standards higher or lower than other states?  What about rural versus urban healthcare?  Does rural or urban Utah differ from rural or urban in some other state?  Do we want an expert whose medical opinion is not based on experience with “current standards of care in Utah” testifying about what the standards should be?  It seems both doctors and patients would lose a great source of expert testimony if experts had to either have experience with the “current standards of care for Utah” or educate themselves about Utah’s standards before testifying.  I like the idea behind the bill, but it needs some tweaking to get it right.