When COVID-19 came to New York, the Legislature moved fast to grant widespread immunity to hospitals and nursing homes for virtually any acts of negligence that occurred, including, obviously, medical malpractice.
The key element of what will entitle medical practitioners to immunity now is whether they were “impacted” by the pandemic. The relevant time period shift in the law is March 7 to August 3rd. And yes, “impacted” is vague.
When this paring back of immunity occurred, I wrote of what the future would bring for any nursing home or medical malpractice suit brought within the key time period:
Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.
But now Gov. Andrew Cuomo has monkey-wrenched the arguments of malpractice defense lawyers throughout the state.
How did he manage to do that? In an interview with CNN, he said that New York’s hospitals “were never overwhelmed” at the peak of the COVID-19 pandemic.
Yowza! So hospital lawyers, defending malpractice cases, will obviously all want to claim their hospital or doctor was “impacted.” But the Governor just said the the hospitals “were never overwhelmed.”
Now you can try to parse the differences between those two phrases, but the ultimate answer will no doubt result in intense factual disputes.
This may well mean that attempts for fast victories on motions to dismiss — asserting that based on the pleadings alone there is no cause of action — can be easily shot down.
But will they be dismissed based on lack of evidence, as happens with summary judgment motions? To grant summary judgment there must be an absence of a factual dispute. Because factual determinations are for juries, not judges.
Any thoughts that such dismissals will come easily should now be out aside. Plaintiff’s bringing actions that fall within the applicable time period will be wise to add claims that treatment was not impacted by the pandemic.
And defense lawyers would be wise not to think that some conclusory affidavit from a hospital administrator will easily win them the day. Because I don’t believe they will.
We will be going someplace in discovery that we don’t usually go: Lawyers will now be looking at who else is in the hospital, what kinds of patients they were, how many beds were filled, etc., all in order to prove that care was (not) “impacted” by the pandemic.
An easy example: Patient goes to a New York City hospital for COVID in late June. Patient needs medication for condition. Wrong dosage is given by young intern who just started out on July 1 — instead of 0.5 mg it is 10.0 mg. Was treatment “impacted” by the pandemic?
Hospital argues that patient was only in hospital due to COVID.
Patient’s counsel argues that hospital was not understaffed and rushing around like chickens without heads at the time. There were, in fact, empty beds and staff available as the pandemic in NYC was slowing down.
The Governor just handed a big fat factual dispute to litigants throughout the state who, perhaps, thought the matter would be easily resolved in favor of medical practitioners.
Discovery may well be going where discovery has not gone before.
Back in April, the New York legislature passed a budget that included widespread immunity for medical practitioners dealing with the COVID-19 pandemic. But in addition to granting some immunity for negligence for COVID patients, it also granted immunity as to other patients in the hospital or nursing home.
The original immunity, forged amid a frantic medical crises, assumed that the all-hands-on-deck position of many medical and nursing institutions would result in mistakes elsewhere. So if, for example, a patient non-COVID stroke patient inadvertently didn’t get her medication because the hospital were shorthanded due to overwhelming COVID cases, the Legislature decided to grant immunity.
The modifications are seen here with showing additions in caps and strikethroughs for the deletions. All of subsection c is now gone as part of the definition of health care services for the purpose of the immunity bill:
That immunity existed — as per the following section 2(1)(b) — if the healthcare practitioner was “impacted by the health care facility’s or health care professional’s decisions or activities in response to or as a result of the COVID-19 outbreak and in support of the state’s directives.”
(The potential immunity for COVID patients remains intact.)
Coming soon to lawsuits and motion practice: Arguments that any medical or nursing malpractice case for any reason that occurred between March 7, 2020 and August 3, 2020 should be immune, as defense lawyers scramble to argue a COVID “impacted” hook.
It’s worth noting, because this will also be litigated, that the original immunity did not extend to gross negligence and certainly not to an intentional tort. So when suits are started now that allege malpractice during the immunity period, you can rest assured that gross negligence will be argued, in addition to claims that the medical care was not impacted by the COVID outbreak.
The rule is as old as government itself: You can’t sue the King.
The concept of “sovereign immunity” protects governments from suit unless they specifically consent. In the U.S. we are permitted to do so by various statutes, and in the case of the federal government, under the Federal Tort Claims Act.
Well, sometimes, anyway. Because there’s a big, fat hairy exception to that rule, and that exception is for those on active duty in the military. You can’t bring suit for acts “arising out of combatant activities.” The problem here is that it’s been extended to plain old negligence away from the battlefield.
The Feres Doctrine prevents all suits, because the U.S. Supreme Court extended the prohibition on suits from “combatant activities” to all situations. It has long been an unfair abomination of the law.
But. And you knew there had to be a “but,” didn’t you? According to the Military Times, most claims are limited to $100,000. And the military doesn’t pay the legal fees. And it doesn’t happen under the Federal Tort Claims act, but under some kind of (not yet written) administrative procedure. You can find the text here.
If the claims are limited to $100,000 this medical malpractice exception is virtually useless. Because in order to prove the claim experts will be required. The military wouldn’t be responsible for the original illness, after all. Only for that which was caused by medical malpractice. And you need experts for that.
And experts cost money. As do depositions and medical records. And with military personnel involved, probably lots of travel too.
The military, of course has unlimited resources to defend and hire experts. And all medical malpractice cases are vigorously defended.
Even a simple medical malpractice case can cost a plaintiff $25,000 – $50,000 when you figure in experts for liability, causation and damages. And that doesn’t include a trial.
The soldier or sailor is unlikely to have that money. It will be lent by the attorneys. But which attorneys are going to pony up so much money with so much risk for so little fee? It’s a path to bankruptcy.
A $100,000 limit is a shonda. A shame. An embarrassment. It’s like putting a band aid on an amputated limb. Few people will ever find a lawyer to handle such a small case at such great risk and cost.
The text of the bill says that the Secretary of Defense can create regulations that allow them to pay more. Regulations that haven’t been written.
So what is the purpose of setting that $100,000 bar? Will future Secretaries of Defense be paying those damages out of their own budgets? Who shall they take the money from?
Why is Congress allowing the Secretary of Defense to set its own rules? Why isn’t this done under the existing rules of the Federal Tort Claims act? Why wouldn’t the Judiciary handle such a claim?
Congress should treat our soldiers and sailors better. If they are mistreated by the military doctors they are compelled to use they should have access to justice. Real justice. Not this pretend crap.
It’s often said that perfect is the enemy of the good, but I can’t see how this will end out as good if this bill is so watered down that the Secretary of Defense can so easily circumvent Congress.
Addendum: The following press release came from Rep. Jackie Speier, who spearheaded the campaign to fix the Feres Doctrine. She asserts that there will be congressional oversight of the rule making and that the potential recovery is “unlimited.” The devil, it is often said, is in the details:
December 10, 2019 Press Release
Washington, D.C.- Last night, the House and Senate Armed Services Committees released a conference report for the fiscal year 2020 National Defense Authorization Act (NDAA) that included an administrative claims process that will compensate servicemembers harmed by medical malpractice in military facilities. As Chair of the House Armed Services Military Personnel Subcommittee, Congresswoman Jackie Speier (D-CA) has led the campaign to achieve justice for victims of military medical malpractice over the last year.
“Today will be remembered as a landmark day in the fight for justice for servicemembers and their families,” Rep. Speier said. “After nearly 70 years of the FeresDoctrine, servicemembers and their families finally have a path forward in seeking compensation for medical malpractice committed by military health care providers, and the Defense Department will have to take their claims seriously. This victory belongs to the hundreds if not thousands of injured servicemembers and their loved ones who have spoken out about this injustice and forced Congress to listen. In particular, today belongs to Army Green Beret and SFC Richard Stayskal, who, after receiving a terminal cancer diagnosis that stemmed from military medical malpractice, forged a bipartisan coalition to achieve this legislative breakthrough through his countless visits to DC and heroic advocacy.”
Though this provision will not create an exemption to the Feres doctrine nor will it allow servicemembers to sue the Department of Defense (DOD) for medical malpractice in federal court, it will allow servicemembers to receive uncapped monetary compensation under the Military Claims Act for malpractice. It also forces the DOD to document and respond to these cases. The legislation also contains provisions to enable congressional oversight of DOD’s rulemaking and administration of the claims process so that it can be improved in future years.
“Though today’s conference report was an accomplishment in many respects, this fix is far from perfect,” Rep. Speier added. “Servicemembers – like their families, federal civilian employees, and even prisoners – who suffer from malpractice deserve their day in federal court. And I have serious concerns about allowing the DOD to run the entire claims process as they will write the rules, investigate malpractice incidents, and adjudicate claims. But it was important that we seize this unique political moment, created by the hard work of Richard Stayskal and other victims and their loves ones, as well as the availability of funds to pay for claims under Congressional budget rules. Rest assured that I will closely oversee the implementation of these changes and continue to work to address the myriad injustices that remain due to the Feres doctrine.”
Rep. Speier chaired a Military Personnel Subcommittee hearing on the impact of the Feres doctrine and prospects for reform after meeting with SFC Stayskal in late 2018. Subsequently, she introduced H.R. 2422, the SFC Richard Stayskal Military Medical Accountability Act of 2019, which passed as part of the House’s NDAA bill.
Over the weekend, I guest-blogged at Kevin, M.D. It is republished here for wider distribution:
Last week I was struck by a post by Dr. Saurabh Jha at Kevin, M.D., about his views of the jury system — as some of his comments mirrored things I’ve said to juries in the past.
Some things he got right, which go to the core our civil justice system. Some things, however, not so much.
His perspective comes from growing up in India, which doesn’t exactly have the most efficient of justice systems. And because of a lack of confidence in that system, folks sometimes take matters into their own hands. Like burning people alive:
One of my most harrowing memories in India as a child was when I saw a mob pour kerosene on a bus. My grandfather pulled me away before the bus was set alight, but I knew what was happening. The mob had tied the driver and conductor to the steering wheel. The mob was angry because the bus had crashed into a pedestrian fatally injuring her. The mob formed spontaneously and dispersed spontaneously. Mobs are as capricious as India’s legal system.
Dr. Jha writes because this concern over vigilante justice isn’t limited to crimes and motor vehicle fatalities, but to something that I’ve never heard of in the United States — retribution against doctors for bad results:
…doctors face a new tide – mob attacks for undesirable patient outcomes. The strike by doctors in Calcutta in protest of a junior doctor seriously injured by an angry family of a seventy-five-year-old patient who passed away, is just the tip of the iceberg. There’s more trouble brewing.
While we see vigilantism from time to time here when crimes are committed — think relatives seeking revenge on a rapist or killer — rarely do we see if for matters generally handled in the civil system such as bus collisions. And certainly not for medical malpractice, which is the heart and soul of his concerns as he discusses a family member’s decision on whether to go into medicine.
So Dr. Jha brings a different perspective. And the first part of that perspective is that there’s a price to be paid for a justice system that works to sift through and clarify the facts behind an incident in a manner that doesn’t involve guns, knives, fists or kerosene:
It was only years later that I understood the price of stopping mobs. When I arrived in Philadelphia for my medical training, I couldn’t afford a car because I couldn’t afford auto insurance, which was unaffordable because the costs of litigating auto-accidents were so high, which were high because of the generous compensation for a range of injuries including the nebulous “whiplash.”
Leaving aside his assumption that costs were high because compensation was “generous” for “nebulous” soft tissue injuries, was this increased cost worth it? Dr. Jha is clear in his opinion that, because mobs are more likely to exist when the justice system isn’t trustworthy, it is definitely worth it. And society becomes safer as a result:
Mobs attempt to correct for failures of institutions to make systems safer. Though mob violence is a blunt tool, unhelpful at making systems safer, their expression signals a void – the paucity of confidence in civil courts. If patients’ families had confidence in the legal system and were sufficiently compensated, over time they’d be less likely to be violent against doctors when they perceived real or imaginary medical negligence. Compensation doesn’t bring back the deceased, but it’s an apology of sorts. Though dreadfully cynical to say – money is balm to the grieving soul. In its absence, retribution rears its ugly head. Mobs exact retribution in lieu of compensation.
This mirrors, in part, some of my standard spiel in voir dire — particularly when I see a run on the room with all kinds of BS excuses to get out of jury service. Our system of justice, while imperfect in that money can compensate for, but not heal, an injury, stands as a substitute for the alternative of vigilantes.
Dr. Jha is likewise clear in his opinion that justice isn’t cheap, because safety costs money:
The mob problem faced by doctors in India won’t be cheap to solve. The government must invest a fair amount in courts, medical malpractice insurance, and hospital infrastructure. Due process is expensive. Safety costs.
But there’s a second part of his posting that also caught my eye, and that was the assumptions that he used about costs, particularly with respect to medical malpractice. He used at least three well-worn tropes, just assuming them to be true:
The United States is famously litigious, particularly in medical malpractice, where millions are awarded for bad patient outcomes which may or may not be caused by negligence.
This one statement isn’t accurate on multiple levels. First, one really can’t bring small medical malpractice cases because cases are expensive to bring. By definition complex cases must be larger than simpler matters. Who’s going to risk $50,000 in expenses and a couple hundred hours of time on a case with a $100,000 value? For smaller matters, the medical community enjoys de facto immunity.
Second, money doesn’t get awarded for cases not caused by negligence. While a jury may, from time to time award damages on insufficient proof (and, conversely, sometimes tosses out a case despite overwhelming proof) a judge can toss that verdict if the facts aren’t there to support it. And after that, there’s an appellate court to do the same. There are, therefore, two additional layers of protection against what Dr. Jha merely assumes to be true.
Next up is the trope about “defensive medicine” driving up costs due to the fear of litigation:
The net effect of litigation is defensive medicine where doctors over-order tests to avoid lawsuits. Defensive medicine has made healthcare costlier.
This was demonstrated in an empirical study to be false. In 2003 Texas passed a law that capped malpractice payments at a paltry $250,000, with the predicable result that fewer cases were brought and that doctors would feel “safer.”
America, unlike every other westernized country, doesn’t have universal medicine. It is fee for service. There is a financial incentive to order more tests. Whether that is a driver of our escalating health care costs I don’t know, but it certainly isn’t a fear of malpractice suits, which are just 2.4% of our overall healthcare costs.
So, in response to Dr. Jha, you got it partly right, in that a functioning and trustworthy justice system beats the hell out of vigilante justice (which has its own costs). And it makes society safer. But you missed the mark on some of your underlying assumptions about our justice system. Those well-worn tropes that you (and many others) use is something to rethink.
Six-year-old Claudialee Gomez Nicanor died. And when her family’s lawyer asked the child’s doctor for her medical records, she destroyed the originals. That’s a problem.
Last week in a case of first impression in New York, our Appellate Division (Second Department) upheld an award of punitive damages in a medical malpractice case — not for the conduct that led to the death, but rather, for the effort to evade liability.
Little Chaudialee had Type 1 Diabetes and died from diabetic ketoacidosis, which results when the body can’t produce enough insulin. (It is Type 2 diabetes that’s often related to excess weight.)
The underlying medical malpractice case dealt with Dr. Arlene B. Mercado‘s failure to diagnose and treat the diabetes. The doctor is a pediatric endocrinologist and the child had arrived in her office via her pediatrician.
Mercado saw Claudialee three times, October 31, 2009, November 14, 2009, and December 12, 2009. Meanwhile, the pediatrician saw Claudialee in late November 2009, and on January 9, 2010. But:
“On January 21, 2010, Claudialee returned home from school complaining that she was tired and did not feel well, and brought with her a note from the school nurse describing her symptoms. The child vomited that evening and said that she had a stomach ache. The next day, after having tried, unsuccessfully, to have Claudialee seen by Cabatic, the child’s mother took Claudialee to a hospital. Claudialee remained hospitalized until her death on January 24, 2010.”
After the child died, and after the lawyers asked for the records, the good doctor thought it would be a great idea to type up the scribbled notes she originally made and destroy the originals for the November and December visits.
The problem is that on the last visit to Mercado on December 12th, the family was told to bring her back on February 13th. And they had the appointment card showing it.
The typed notes, however, claimed something else: That the child was to come back in just four weeks (before the child was ultimately hospitalized). Those are the same notes that were typed up after the child had died and after the lawyers asked for the records:
“Q. Now, you told us that you created the typed written part for the Halloween, the 10/31 visit after you got the letter from my office, did you do all three of them at the same time?
“Q. So this one was done without the help of any squiggly notes; is that right?
“THE COURT: You had notes?
“THE WITNESS: I have like piece of paper, but after typing—
“THE COURT: Where is it[?]
“THE WITNESS:—I throw them out. After typing I will throw them out.
“THE COURT: Four months later you throw them out?
“THE WITNESS: Yes.”
The doctor also gave conflicting claims as to when she typed up the first set of notes, which was important because the typed version included information not reflected in the handwritten record of that visit.
The underlying malpractice claim was that the doctor committed malpractice by “not teaching the child’s family about symptoms of diabetes—such as weight loss, tiredness, lightheadedness, excessive thirst, and excessive urination—and by not recommending that Claudialee’s family perform home testing to measure the child’s blood sugar and ketones.”
The doctor was also faulted for assuming that the child was developing type 2 diabetes and not even considering that the child was developing type 1 diabetes.
But this was the kicker: $7.5M in punitive damages. While that award was reduced by the trial court to $1.2M, and further reduced by the Appellate Division to $500K, it was the very issue of punitive damages for the destruction of evidence in order to evade liability that lit up the decision.
The court was firm (and unanimous) in stating — and this is the entire point of this post — that punitive damages serve to deter the wrongful conduct of destroying records to evade liability.
[W]e now hold that where, as here, a plaintiff recovers compensatory damages for a medical professional’s malpractice, a plaintiff may also recover punitive damages for that medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability. Allowing an award of punitive damages for a medical professional’s act of altering or destroying medical records in an effort to evade potential medical malpractice liability will serve to deter medical professionals from engaging in such wrongful conduct, punish medical professionals who engage in such conduct, and express public condemnation of such conduct.
And the fact that there might be also be disciplinary action should not deter a court from submitting this to the jury. As the court noted:
However, the possibility of other consequences, such as professional disciplinary action or spoliation sanctions, should not preclude medical professionals from being subject to punitive damages for altering or destroying medical records in an effort to evade potential medical malpractice liability. … the present case illustrates that the availability of disciplinary proceedings is not sufficient to protect plaintiffs from such conduct, since Mercado was clearly not deterred by the possibility of such disciplinary action.
Finally, the court rejected the argument that there was no damage from the destruction of the records, since the plaintiff was able to prevail despite it. In other words, the defendant argued that there should be no penalty for her action. The court was not amused at this request for immunity from wrongful conduct:
We also reject Mercado’s contention that punitive damages cannot be recovered because her destruction of original records did not prevent the plaintiff from successfully prosecuting this action. The fact that the plaintiff was able to prove the medical malpractice cause of action against Mercado, despite Mercado’s destruction of original records, should not insulate Mercado from liability for punitive damages. Undesirable results likely would flow from a conclusion that punitive damages cannot be awarded for the destruction of medical records in an effort to evade liability where a plaintiff is able to establish liability nonetheless; specifically, medical professionals fearing malpractice liability might feel emboldened to alter or destroy medical records, knowing that they will face no added liability in tort. Indeed, it has been observed that “[i]f the act of altering and destroying records to avoid liability is to be tolerated in our society, we can think of no better way to encourage it than to hold that punitive damages are not available” in such circumstances.”
Going forward, this case won’t be limited to medical malpractice cases. I foresee this case being used and cited in any kind of case dealing with spoliation of evidence. For such cases all deal with the same concept of punishing a party for trying to evade liability by destroying evidence.
While one tool in the judge’s toolbox is simply to strike the answer of a defendant for having engaged in such practices, that merely puts plaintiffs where they otherwise would have been anyway had the malfeasance not taken place. There was no downside. Now there is.