The Doctor’s Advocate | Second Quarter 2018
Government Relations Report

Judicial Review of Medical Liability Legislation

Dennis W. Chiu, JD, Government Relations Specialist, Government Relations

Appellate court decisions affect medical liability as much as or more than laws enacted by legislative bodies, since courts are the ultimate arbiters of whether such legislation is constitutional. The Doctors Company actively works with industry partners to defend our members and medical liability reforms in the courts. We are actively involved in challenging rulings by providing data, arguments, and funding for amicus briefs to help courts understand the potential impacts of the decisions before them. Here are brief summaries of select cases of particular interest or concern.


The U.S. Court of Appeals for the Eighth Circuit in Schmidt v. Ramsey (2017) affirmed the federal constitutionality of Nebraska’s Hospital Medical Liability Act (HMLA). The court held that the cap on damages in the HMLA did not violate the U.S. Constitution’s Seventh Amendment’s right to a jury trial, the Fifth Amendment’s takings clause (which states that “private property [shall not] be taken for public use, without just compensation”), or the Fourteenth Amendment’s equal protection and substantive due process rights. It further held that the right to access the courts was not violated.

This decision by the U.S. Eighth Circuit Court of Appeals is controlling for federal challenges to state liability caps in Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota. While attacks on damage caps may still be made on state constitutional grounds, this is a significant victory at the federal level. Additionally, since many state constitutions mirror the U.S. Constitution, the Schmidt court’s reasoning can be used as a persuasive argument against state constitutional challenges to damage caps.


In Lewis v. Superior Court (2017), the California Supreme Court held that the state medical board investigator did not violate patient privacy when reviewing a physician’s entire prescription history in the Controlled Substance Utilization Review and Evaluation System (CURES) database while investigating a patient complaint against the same physician on a different matter.

The state high court ratified the medical board disciplinary actions on the initial patient complaint and five additional complaints that were generated following review of the physician’s prescription history. The high court noted that this decision does not mean that the board may access the CURES database for any reason. To access the system, the board must be exercising its responsibility to aid in the enforcement of controlled substance abuse or to protect the public from incompetent, impaired, or negligent physicians. This case increases the potential that one patient’s complaint to the state medical board will open that physician to additional disciplinary actions.


In Coulon v. Endurance Risk Partners (2017), the Louisiana Supreme Court lowered the bar for plaintiffs when filing a request for Medical Review Panel (MRP) under the Louisiana Medical Malpractice Act. The state high court held that the plaintiff’s brief descriptions of malpractice in the MRP complaint, while broad, were nonetheless sufficient, and the MRP should not have dismissed the complaint. The plaintiff’s broad allegations were that the surgery center failed to prevent the patient’s surgical infection due to a failure to train and supervise its nurses and to enforce proper policies and procedures to prevent surgical infections. This decision increases the likelihood that plaintiffs will successfully file MRP complaints.


In John v. Saint Francis Hospital, Inc. (2017), the Oklahoma Supreme Court declared the affidavit of merit requirement for medical malpractice plaintiffs unconstitutional. The affidavit of merit required plaintiffs to obtain a qualified expert to opine that the defendant healthcare provider might have committed malpractice under the facts. The state high court held that the state constitution’s fundamental right to access the courts makes the affidavit of merit unconstitutional. This decision increases the likelihood that meritless medical malpractice cases against healthcare professionals may be filed.


In Smith v. Providence (2017), the Oregon Supreme Court held that medical malpractice plaintiffs may file a medical negligence claim that includes damages for the loss of the chance of a better health outcome. For example, if a plaintiff would have had a 35 percent chance of full use of an injured limb prior to medical malpractice compared to a 10 percent chance after the alleged malpractice, the plaintiff can sue for the differential. This decision opens the door for medical provider defendants to be sued for these types of speculative loss of chance damages, and it increases the cost of defense since experts on outcome statistics must be hired.


In Volk v. DeMeerleer (2016), the Washington Supreme Court broadened the duty of mental health providers to warn and protect potential victims of violence by patients under their care, even when there is no specific or imminent threat. To justify this violation of the doctor-patient privilege, the state high court wrote that “given society’s strong interest in preventing violent attacks by mentally ill patients, as well as the recognition that the mental health profession has long accepted a duty of disclosure when a potential victim’s safety is in jeopardy, this factor weighs in favor of imposing a duty.”

The decision was not unanimous. The dissenting judge argued that “alerting the [law enforcement] authorities, in the absence of a clear target or imminent threat by the patient, hardly assists in the prevention of harm (while breaching patient confidentiality).” We vigorously opposed this decision by working with coalition partners to introduce legislation that would have reinstated the former requirement that there be a specific and imminent threat prior to triggering the duty to warn and protect third parties. However, the bill did not gain traction in the legislature. Mental health providers in Washington State now have a significantly increased threat of liability.

The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.

The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.

Second Quarter 2018

Director's Forum
Physician Burnout: Defining the Problems, Revealing the Solutions

An Ounce of Prevention
Team Synergy: A Critical Core Competency for Safe Care

Government Relations Report
Judicial Review of Medical Liability Legislation

New CME/CE Courses Added Every Month

Innovations in Patient Safety
Improving Documentation of Patient Communication

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