The Doctor’s Advocate | Fourth Quarter 2022
Government Relations Report

2022 Judicial Review: Significant Court Decisions on Medical Liability Issues

Dennis Chiu, JD, Senior Government Relations Specialist, The Doctors Company

In the past year, we have seen a number of significant court decisions on medical liability issues—including several recent state supreme court cases that sanctioned malpractice plaintiffs’ legal strategies to undermine medical liability tort reform laws while other decisions denied plaintiffs’ attempts.

Three decisions took different positions on plaintiffs’ tactics to avoid affidavit or certificate of merit requirements. An affidavit or certificate of merit requires plaintiffs in malpractice litigation to file a statement at an early stage stating that a plaintiff’s claim of medical negligence is supported by another appropriately licensed professional. The courts handed down the following decisions:

• The New Jersey Supreme Court approved a plaintiff’s strategy to avoid the state’s affidavit of merit requirement. In Haviland v. Lourdes Medical Center of Burlington County, Inc., the court held that the affidavit was not required when suing a healthcare facility for the alleged malpractice of an employed radiological technician. The affidavit law expressly covered licensed entities and individuals. Even though the healthcare facility was licensed, the court held that the relevant license was the employee’s. Since radiological technicians have no license requirement, the court held that the affidavit requirement did not apply.

• In Iowa, the supreme court denied a plaintiff’s attempts to avoid the certificate of merit requirement. The court held in Struck v. Mercy Health Services that the state’s certificate of merit statute required dismissal of the plaintiff’s claims of nonmeritorious negligent hiring and supervision because the underlying facts fell within the scope of medical malpractice.

• The West Virginia Supreme Court refused plaintiffs’ attempt to avoid the certificate of merit requirement. In State ex rel. West Virginia University Hospital v. Scott, the court held that corporate negligence claims arising out of medical malpractice must follow the requirements of the state’s Medical Professional Liability Act, which requires pre-suit notice and a certificate of merit.

In the Midwest in 2022, we saw two significant state supreme court decisions on breach of the standard of care in medical malpractice cases:

• The Illinois Supreme Court eased a medical malpractice plaintiff’s burden to prove breach of the standard of care by multiple healthcare defendants during a surgery. In Johnson v. Armstrong, the court approved the plaintiff’s use of the ancient legal doctrine res ipsa loquitur (“the thing speaks for itself”). To establish breach under this theory for multiple healthcare defendants, the plaintiff must prove only that the instrument causing the injury was in the exclusive control of the defendants and have an expert expound that the injury would not normally have occurred in the absence of negligence. Prior to the application of this doctrine, a plaintiff was required to prove that each medical defendant had breached the duty of care.

• In Michigan, the state high court held that the failure to follow a standing order does not alone constitute breach of the standard of care. In Meyers v. Rieck, a case involving a nursing home with a standing order for patients with nausea, the court decided that the alleged failure of healthcare professionals to follow the standing order did not by itself prove that the conduct fell below the standard of care.

Two state supreme courts on different coasts handed down significant decisions on medical liability for advanced practice clinicians:

• In North Carolina, a three-justice majority approved plaintiffs’ request to present evidence of a certified registered nurse anesthetist’s (CRNA’s) alleged malpractice, separate from the supervising physician. This overturned a 90-year-old precedent providing liability protection to nurses working under the supervision of a physician. In Connette v. Charlotte-Mecklenburg Hospital Authority, the three justices held that nurses had evolved professionally and were no longer subservient to physicians. The case arose from complications following the administration of anesthesia by a CRNA working under the in-person, direct supervision of an anesthesiologist. Since the court comprises seven justices and two did not participate, it is not clear whether the three justices voting in the majority reflect an actual four-justice majority of the court.

• In California, the high court in Lopez v. Ledesma denied the plaintiff’s request to place physician assistants (PAs) outside the protection of the noneconomic damages cap established by the state’s Medical Injury Compensation Reform Act. The case involved a misdiagnosed malignant melanoma. The plaintiff argued that the PAs practiced medicine beyond their permitted scope when not properly supervised by a dermatologist and a plastic surgeon. The plaintiff argued that the cap covered only healthcare providers working within their scope of practice. The court unanimously rejected this argument, holding that the state’s cap and the law’s goals would be circumvented by a subjective case-by-case determination of whether PAs practiced outside of their scope due to inadequate supervision.

The most troubling plaintiffs’ tactic approved by a state supreme court recently occurred in New Mexico.

In Leger v. Leger, a deeply divided New Mexico Supreme Court approved the malpractice plaintiffs’ tactic to avoid the state’s damage caps by confidentially settling with a hospital in a wrongful death case, then obtaining the hospital’s indemnity right to sue the individual healthcare providers involved in the alleged malpractice. In this case, the plaintiffs sued a hospital for the wrongful death of a patient but did not sue the medical professionals. The individual providers did not know until years later that they would be sued. The state’s Medical Malpractice Act (MMA) bars assignment of claims. Based on this law, the healthcare professionals asked the court to stop the assignment. A narrow majority of the state’s high court held that the assignment prohibition applied only to natural persons, not to hospital entities, and permitted the hospital to assign the claim and the plaintiffs to pursue the providers.

The dissent strongly disagreed, pointing out that, since the settlement with the hospital was confidential, when plaintiffs sued the providers, they could be awarded damages beyond the total compensation limits of the MMA. The dissent wrote, “With such a simple (and now judicially approved) method for malpractice claimants to thwart the procedural safeguards and recovery limits of the MMA, one has to wonder whether health care providers will be willing to undertake the burdens of becoming qualified [that is, licensed to practice medicine] in the future.”

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