Legal & Regulatory
Case Law Update E MO TI O N A L D I S TR E S S Hospital was not liable for failing to timely disclose assault to patient’s daughter FA C TS :
By John C. West, JD, MHA, DFASHRM, CPHRM
Santina Di Teresi was a patient at Stamford Hospital on March 23, 2004. She suffered from dementia, advanced Alzheimer’s disease, Parkinson’s disease, and other ailments. She was 92 years old and was considered a total care patient. She was under the care of Robert Mayes, CNA, as well as other employees of the hospital. At approximately 10:00 a.m. on the date in question, Latrina Futrell-Annosier, a nurse who was caring for Santina, walked into her room and discovered Mr. Mayes sexually assaulting her. She left the room and notified management of the situation. While she was doing this, Mr. Mayes allegedly changed Santina’s gown and bed linens, and generally cleaned up the room and Santina. The hospital began to investigate and escorted Mr. Mayes from the building at approximately 11:00 to 11:30 a.m. In the course of the investigation, the administration, risk management, human resources, and security met to discuss the best course of action. External counsel was contacted for advice. The hospital asked Mr. Mayes to return to the hospital, which he did at approximately 4:00 p.m. He denied that he assaulted Santina. The Stamford Police Department was contacted at 4:30 p.m. A rape examination was performed on Santina at 9:00 p.m. Santina’s daughter, Virginia Di Teresi, came to the hospital at approximately 2:00 or 2:30 p.m. on the day in question. Virginia visited Santina regularly and held her power of attorney. At 5:00 or 5:30 p.m., 3 hospital employees approached Virginia, took her to a private meeting room, and disclosed that her mother had been assaulted. No information on criminal charges was given. Suit was filed on March 22, 2006. The Complaint alleged 19 causes of action, 6 on behalf of Virginia and 13 on behalf of Santina. The claims brought by Virginia were for, among other things, negligent infliction of emotional distress, intentional infliction of emotional distress, recklessness, and breach of fiduciary duty as a result of the delay in informing her of the assault. The hospital moved for summary judgment on 12 of the counts, including the 6 brought on behalf of Virginia. The trial court granted the motion in its entirety. The appeal ensued, but only as to the counts brought on behalf of Virginia.
ISSUES: Did the hospital’s actions toward Virginia (failing to notify her of the assault in a timely manner) negligently cause her emotional distress? Did the hospital intentionally cause Virginia emotional distress? Did the © 2014 American Society for Healthcare Risk Management of the American Hospital Association Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/jhrm.21134 44
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hospital act recklessly? Did the hospital breach a fiduciary duty to Virginia?
ANA LYSIS: The court noted that, in Connecticut, there are 2 elements necessary to show that a defendant negligently inflicted emotional distress on another: (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result; and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. The court also noted that there are 3 general types of negligent infliction of emotional distress claims that are relevant here: the first involves the limited duty owed by healthcare providers to third parties; the second deals with negligent infliction of emotional distress claims arising from medical malpractice; and the third addresses the consequences of imposing liability for a failure to report or a delay in reporting. The court noted that, as a general rule, a healthcare provider does not owe a duty to anyone other than his/her patient [Maloney v Conroy, 208 Conn 392, 545 A2d 1059 (1988)]. Duty is normally a question of law for the court to decide and, in the case of medical malpractice, allowing a duty to a person other than the patient could open the floodgates of litigation by persons other than the party who was actually injured. The court noted that there were issues associated with imposing a duty to report an occurrence of this sort in a timely manner. Such a duty would potentially give a hospital inappropriate incentives. For example, the court noted that the hospital may decide not to disclose the event at all because it felt that too much time had elapsed since the event. Alternatively, the court noted that a hospital may rush to judgment in a given situation because it was fearful that too much time might elapse before the event was disclosed. Therefore, the court noted that there was a public policy that militated in favor of not imposing a duty to disclose such events to third parties within a specific period of time. Additionally, the court noted that allowing damages for negligent infliction of emotional distress in this type of claim raised practical issues. Virginia experienced 2 types of emotional distress: that associated with discovering that her aged and infirm mother had been sexually abused, and that associated with the delay in reporting the event to her. Since it is impossible to dissociate the 2 causes of distress, the court noted that allowing such a claim would be unnecessarily problematic. Accordingly, the court affirmed the grant of summary judgment on the negligent infliction of emotional distress claim. DOI: 10.1002/jhrm
The test for finding intentional infliction of emotional distress in Connecticut involves 4 elements: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff ’s distress; and (4) that the emotional distress sustained by the plaintiff was severe. The court noted that Virginia’s arguments in this count were very similar to her arguments for negligent infliction of emotional distress. It held that Virginia had not shown that the hospital had intended to inflict emotional distress on her, or that it should have known that, by delaying the disclosure, it would inflict emotional distress on her. The court also held that the hospital’s conduct was neither extreme nor outrageous. Accordingly, the court affirmed the grant of summary judgment on this claim. The court held that the tort of recklessness required a showing of intentional disregard for the safety of another in a situation involving danger to the other person. It is a form of aggravated negligence that goes far beyond simple negligence or inadvertence. The court held that there was no evidence of recklessness here and affirmed the grant of summary judgment on this claim. Finally, the court held that the hospital did not stand in a fiduciary relationship with Virginia; hence, there could be no breach of a fiduciary relationship. Accordingly, the court affirmed the grant of summary judgment on this claim. In conclusion, the court of appeals affirmed the grant of summary judgment for the defense on all of Virginia’s claims.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : This decision is very helpful to healthcare entities because it clarifies their potential liability in a situation in which there may otherwise be substantial liability. Courts are careful to draw lines around liability because it can spread outward in all directions from a single negligent act if left unchecked. There may still be liability to Santina—that was not at issue here. In addition, this is not to say that notification to families and/or patient representatives should not be made in a timely manner. It should be accomplished in due course after the investigation has yielded actionable information, in a manner consistent with appropriate transparency and disclosure practices. This case also reinforces the need to be both vigilant and diligent in hiring and supervising employees. Healthcare entities need to consider their employees’ backgrounds carefully for any sign of potentially deviant behavior. This includes checks for criminal background, licensure issues, and sex offender websites. There are too many times during a patient’s hospitalization—especially a frail, elderly,
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and vulnerable patient—when an employee may have inappropriate access to the patient. Hospitals need to ensure that there is a careful balance between assuring the patient’s privacy and protecting the patient from abuse. This kind of case often gives rise to simple respondeat superior liability: let the employer respond for the actions of the employee. It may be possible to defend against the imposition of respondeat superior liability by showing that the employee was acting outside the course and scope of his employment when the act in question was committed. Simply put, hospitals do not hire employees to sexually abuse their patients. This can also give rise to another kind of cause of action: one for either negligent hiring or negligent supervision. Either of these is preferable to respondeat superior liability, because this latter liability is automatic: if the employee was acting within his job responsibilities, the employer is responsible without having to prove fault on the part of the employer. With either negligent hiring or negligent supervision, the plaintiff has to prove that the hospital was negligent. The best defense to either of these claims is to show that the hospital was diligent in hiring and supervising the employee, and that any complaint of inappropriate behavior was investigated and corrected, as appropriate. Di Teresi v Stamford Health System, No. AC 33052 (Ct App Conn April 23, 2013)
I NFORMED C ON SEN T Informed consent required when using nonowned equipment in Utah FA CT S: Buu Nguyen’s son suffered severe injuries in a motor vehicle accident and was admitted to the pediatric intensive care unit (PICU) at Primary Children’s Medical Center. He was under the care of Dr. Madeline Witte. Dr. Witte determined that the patient needed an alteration in his treatment regimen, but before she could change his regimen, she needed to obtain a CT scan of his head. This entailed transporting the patient from the PICU to Radiology, which was on a different floor of the hospital. The only portable respirator available to meet the patient’s needs was a demonstrator ventilator that the hospital was evaluating to see if it was appropriate for use in transporting critically ill patients by air. The ventilator was approved by the Food and Drug Administration (FDA) for this use, but its uses and characteristics were not completely familiar to the staff of the hospital. The ventilator had been studied by a hospital committee for its suitability for use in transporting patients outside the hospital, and a protocol for its use had been developed. The protocol indicated that it was to be used 46
on medically stable patients. Dr. Witte sought the permission of the committee to use the ventilator on Mr. Nguyen’s son to transport him from PICU to Radiology, which was granted. The staff hooked the patient to the ventilator and allowed it to run for an hour before the transport to ensure that it would work properly. No problems were noted, so the patient was transported, without incident, to Radiology. However, on the return trip to the PICU the ventilator suddenly stopped working. Despite the efforts of available staff, the patient died shortly thereafter. In a subsequent evaluation of the ventilator, it was determined that the malfunction was caused by a screw that had come loose and caused the ventilator to short-circuit. This could not have been foreseen by the staff members using the equipment, and there was no evidence that the staff members did not use the equipment appropriately. Mr. Nguyen filed suit against, among others, the hospital for the death of his son. On a previous appeal to the Utah Court of Appeals, the case was reversed and remanded to the trial court with instructions that the defendants were under a duty to obtain Mr. Nguyen’s informed consent before using the ventilator on his son. On remand, the trial court held that the duty to obtain informed consent ran to the physicians, rather than the hospital, and dismissed this claim against the hospital. Mr. Nguyen appealed again on the grounds that it was improper to dismiss this claim against the hospital. This decision is the decision of the court of appeals on the second appeal.
ISSUE: Did the hospital have a duty to obtain Mr. Nguyen’s informed consent under these circumstances?
A N A LY S I S : The court of appeals noted that virtually all of the states that have addressed this issue have ruled that, under normal circumstances, the duty to obtain informed consent runs to the physician, not the hospital. The court held that “Therefore, consistent with the overwhelming weight of precedent from other states, we agree that, absent any special circumstances, a hospital does not generally owe an independent duty to obtain a patient’s informed consent to treatment.” [Emphasis added] The court went on to determine whether “special circumstances” applied in this case to bring it outside this general rule. One issue that the court addressed was the foreseeability of harm. It noted that the risk of harm was foreseeable, given that the hospital was using untested equipment with which its staff was unfamiliar. The court also cited cases from other jurisdictions in which special circumstances were found to impose liability on a hospital for failing to obtain informed consent. See, eg, Lenahan
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v University of Chicago, 808 NE2d 1078, 1084 (Ill Ct App 2004) (holding that “under ‘these particular facts,’ a hospital as well as a physician may be held liable for claims arising from the lack of informed consent” when the hospital “undertook the responsibility to inform the plaintiff of the experimental nature of his surgery”); Kus v Sherman Hospital, 644 NE2d 1214, 1220 (Ill Ct App 1995) (“[A] hospital, as well as a physician, may be held liable for a patient’s defective consent in a case involving experimental intraocular lenses[.]”); Friter v Iolab Corp., 607 A2d 1111, 1113 (Pa Super Ct 1992) (“In this instance, the hospital, as a participant in a clinical investigation for the FDA, specifically assumed a duty to ensure that an informed consent was obtained [from] any patient participating in the study.”). The parentheticals in the foregoing citations are taken from this court’s opinion. The court held that special circumstances were present in this case.
answer these questions, and it is unclear what those answers might be.
The court also addressed the issue of whether the hospital had the capacity to avoid the loss. This requires an analysis of the defendant’s ability to take reasonable steps to avoid injury. The court held that it was reasonable to require a hospital to obtain the patient’s informed consent when authorizing the use of unfamiliar equipment in circumstances such as those present in this case. It noted that this obligation can be met by the physician’s acting on the hospital’s behalf in addition to her own behalf.
Whether a piece of equipment has been approved by the FDA is an easy determination to make, unlike the issues noted above that underlie the application of this decision going forward. If a piece of equipment has not been approved by the FDA, any use of the equipment, including the patient’s informed consent for the use of the equipment, must be approved by the hospital’s IRB. The committee that approved the use of the ventilator in this case was not an IRB, and the equipment had been approved by the FDA. This was not a case involving the use of a piece of equipment in a clinical trial. Its use was neither experimental nor investigational. This takes it outside the line of precedent cited by the court in this case.
Accordingly, the court held that the hospital did have a duty to obtain Mr. Nguyen’s informed consent before using the ventilator on his son. The court remanded the case for further consideration consistent with this opinion.
RI SK MAN AG EMEN T C ON SIDER ATI O N S : While no one would dispute that this is a terrible case, as are all cases that involve the death of a child, the question to be answered by the court is the allocation of fault by a fair and reasonable mechanism. This decision is problematic for hospitals on a number of levels. It sets standards that are not measurable or quantifiable. This is a troubling case for hospitals because it is difficult to understand and define the parameters within which the decision operates. Does the court mean to imply that a hospital needs to obtain the patient’s informed consent whenever a new piece of equipment is used in the hospital? For how long is a piece of equipment “new”? Or does the court feel that this is necessary only when the equipment is critical to sustaining life, as in the case of a ventilator? Does it only apply to nonowned equipment that is in the hospital on a trial basis? Additionally, for how long does this obligation extend? Does it run for as long as the staff is unfamiliar with the piece of equipment? How is one to measure when staff members become comfortable with a piece of equipment? Unfortunately, the court did not
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In each case cited by the court, one will note that the equipment in question was “investigational” or “experimental.” These are terms of art applied to equipment that has not been approved by the FDA and that are being used in clinical trials. See Kus v Sherman Hospital, 268 Ill App 3d 771 (1995). In such cases, hospitals have been held responsible for obtaining the patient’s informed consent, and the consent must strictly comply with the consent form approved by the hospital’s institutional review board (IRB). See 21 C.F.R. §56.109; Department of Health and Human Services, Office for Human Research Protection, available at http://hhs.gov/ohrp/; Lenahan v University of Chicago, 808 NE2d 1078, 1084 (Ill Ct App 2004); Kus v Sherman Hospital, 644 NE2d 1214, 1220 (Ill Ct App 1995); Friter v Iolab Corporation, 607 A2d 1111, 1113 (Pa Super Ct 1992).
This is not to say that good channels of communication with the patient and the family are not crucial in situations like this. The patient and the family need to be fully informed of the risks of any change in treatment regimen or any procedure that carries a material risk of harm. This is a lower standard than requiring the informed consent of the patient or family. This case also highlights other risk management issues. While some of these issues were not at issue in this decision, hospitals need to be prepared for events of this nature. There is always the possibility that a ventilator will malfunction, particularly in transport, and emergency supplies should be readily available, both during transport and in the remote location. Transport personnel need to be able to call a code from any point in the hospital. Additionally, hospitals must always be certain that they are equipped to address the needs of high-acuity patients, and transfer those whom they cannot accommodate. The failure to plan for management of deterioration in the patient’s condition may result in serious injury to the patient as well as resultant litigation and liability.
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Nguyen v IHC Medical Services, Case No. 20110152-CA (October 25, 2012)
SE X UAL ASSAULT Hospital may be liable for failing to follow chaperone policy FA CT S: The plaintiff, identified only as Jane Doe, had an appointment for a physical examination with Dr. Richard Saulle, an employee of Montefiore Medical Center (MMC). When she appeared for the appointment, Dr. Saulle informed her that he would have to perform a pelvic examination, although Ms. Doe objected and indicated that she had had a pelvic examination 2 weeks before. Dr. Saulle insisted and Ms. Doe complied. Dr. Saulle did not arrange to have a chaperone present during the examination, despite MMC’s unwritten (but “spoken”) policy that a chaperone should be present. Dr. Saulle allegedly instructed Ms. Doe to get on her hands and knees on the examination table, and then he allegedly touched her inappropriately. Ms. Doe alleges that this was done for Dr. Saulle’s sexual gratification. When Ms. Doe reported the incident, MMC removed Dr. Saulle from duty. His employment was later terminated. Ms. Doe filed suit for negligence and breach of fiduciary duty against MMC, as well as other parties. She also filed a complaint with the New York State Department of Health, State Board of Professional Affairs, which was resolved by consent decree. The defendants filed a motion for summary judgment, which is the subject of this decision.
I SSUE S: Did MMC negligently supervise Dr. Saulle? Was it negligent for MMC to employ Dr. Saulle and place him in a position where he could assault patients because the hospital did not enforce its chaperone policy? Was the assault foreseeable? Did MMC breach its fiduciary duty to Ms. Doe by allowing Dr. Saulle to examine her?
ANA LYSIS: The court reviewed the evidence of record, which consisted of a number of e-mails and other materials, and determined that MMC was not on notice that Dr. Saulle would have a propensity to assault female patients. The court held that Dr. Saulle may have, on occasion, exhibited bizarre and erratic behavior, some of it directed to female coworkers, but none of it indicated that his behavior was sexual in nature. Accordingly, the court held that Dr. Saulle’s conduct in assaulting Ms. Doe was not foreseeable by MMC based on his prior behavior. The court
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granted the motion for summary judgment with respect to the plaintiff ’s claims of negligent supervision. The court also reviewed the unwritten policy that required a chaperone when a male physician was performing an intimate examination of a female patient. Plaintiff argued that MMC was negligent because Dr. Saulle violated the chaperone policy and that MMC was negligent for failing to have a mechanism for enforcing the policy. The court held that, by having a policy requiring chaperones, MMC was on notice of the need for chaperones; hence, the assault could be foreseeable on this basis. The court reserved judgment for trial on the issue of whether the chaperone policy was deficient because it did not have a mechanism for enforcement. The court denied the motion for summary judgment on this issue. The court noted that the claim for breach of fiduciary duty was redundant of the claim for negligent supervision. The court held that this claim failed for the same reasons that the claim for negligent supervision failed, and granted the motion for summary judgment on this issue. Accordingly, the court granted the motion for summary judgment in part and denied it in part.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : This is an odd case because a literal reading of the case would indicate that healthcare entities may be better off without a chaperone policy. Such is not the case. The American Medical Association expressly advises physicians and healthcare entities to have a chaperone in place when performing intimate examinations on female patients (American Medical Association, “Opinion 8.21 - Use of Chaperones During Physical Exams,” available at http:// www.ama-assn.org/). That sets the standard of care for physicians and, therefore, it is likely that a healthcare entity would be found negligent for not having such a policy. However, like all policies, a chaperone policy will be used against the physician or the entity if the policy is not followed. A facility’s policy constitutes an admission regarding the way in which intimate examinations should be performed. The best practice is to always have a chaperone present during intimate examinations. While it does not appear that it would have helped in this case, this situation also demonstrates the need to perform diligent background checks on all healthcare practitioners, including physicians. The U.S. Department of Justice operates the National Sex Offender Public Website, available at http://www.nsopw.gov/, which is available for searching without charge. Many states perform criminal background checks as part of the licensing process, but healthcare entities are well advised to do their own criminal background checks. These should be national background checks.
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Additionally, there should be a zero tolerance policy for disruptive behavior, particularly where the behavior is sexual in nature. A chain-of-command policy must be in place, and all employees should feel empowered by administration to use it. Any aberrant behavior, especially if it is sexual in nature, must be dealt with immediately. In short, in order to defend against a claim of this sort, an entity will have to show that it exercised proper due diligence. The entity must show that it was diligent in screening applicants, that it monitored the performance of employees and medical staff members, that it had (and enforced) a chaperone policy, and that it took action when necessary. To do less is to invite court litigation. Doe v Montefiore Medical Center, No. 12 Civ 686 (CM) (SDNY February 19, 2013)
D I SCL O SU RE Ohio’s apology statute applicable to actions filed after enactment FA CT S: Jeanette Johnson underwent a cholecystectomy on April 24, 2001. The surgery was performed by Dr. Randall Smith. The surgery was initially performed laparoscopically but had to be converted to an open procedure when Dr. Smith realized that he had injured the common bile duct. He repaired the injury and completed the operation. He later explained what had happened to Ms. Johnson. Ms. Johnson developed complications related to the surgery 1 month later. She returned to the hospital where the surgery was performed, but the hospital was not equipped to manage her care. The hospital arranged for transportation to another hospital for further care. Prior to the transfer, Ms. Johnson was agitated and upset. Dr. Smith comforted her and told her, “I take full responsibility for this. Everything will be okay.” The ultimate outcome of the additional care was not disclosed in this decision. In 2004, the Ohio legislature passed the “apology statute,” which makes inadmissible “any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a healthcare provider” to a patient [Ohio Rev. Code §2317.43(A)]. Ms. Johnson filed suit for negligence on August 19, 2002. However, she voluntarily dismissed this action in 2006 and refiled it on July 26, 2007. Dr. Smith made a motion in limine before trial to suppress the statement that he had made to Ms. Johnson prior to her transfer to the second hospital. The trial court granted the motion. The case went to trial and resulted in a defense verdict. The case was appealed on the issue of the admissibility of the
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statements, and the court of appeals reversed, holding that the statements should have been admitted at trial. This appeal to the Supreme Court of Ohio was taken.
ISSUE: Although the statement was made before the apology statute was enacted, should the statement have been excluded because the action was filed after the statute was enacted?
A N A LY S I S : The court noted that the original suit, filed in 2001, was a legal nullity because it had been voluntarily dismissed. Thus, even though the original suit was filed before the apology statute was enacted, it had no effect on the admissibility of Dr. Smith’s remark prior to Ms. Johnson’s transfer. The suit that was effective in deciding this issue was the present one, which was filed in 2007, after the enactment of the apology statute. The court also observed that the relevant portion of the apology statute begins with the phrase: “In any civil action brought by an alleged victim…” [Ohio Rev. Code §2317.43(A)]. The court filled in a missing portion of the statute by holding that this statute covered any civil action brought after the effective date (2004) of the statute. Accordingly, the apology statute was determinative of the issue of admissibility of the statements. The court also held that the statements were meant to comfort and console; hence, they fell within those statements meant to be excluded by the statute. Consequently, the Supreme Court reversed the judgment of the court of appeals and reinstated the judgment of the trial court. The court held that the statements were properly excluded from evidence.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : While this case applies only to litigation in Ohio, it is a favorable case for healthcare providers. The case could certainly have gone the other way and allowed the statements into evidence, as the court of appeals held. This case highlights that disclosure statements can be problematic if not managed appropriately. Words are powerful and are often determinative of the outcome of a legal case. If disclosure is made, it should be limited to the facts of the occurrence. From an ethical perspective, the patient and family are undeniably entitled to know what happened. Adverse outcomes can still happen in the absence of negligence. Providers should not be quick to admit fault in the heat of the moment. This case also highlights the ambiguity of language. The statement is simple: “I take full responsibility.” But its meaning is far from clear. Did Dr. Smith mean that he
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took full responsibility because the event happened while he was operating? Did he mean that he would be legally responsible for Ms. Johnson’s medical expenses? Did he mean that he would be legally responsible for all of Ms. Johnson’s damages? Did he mean that the occurrence was his responsibility and that Ms. Johnson was not at fault for what happened in any way? The danger is that when statements like this are entered into evidence, the jury is free to construe the statements in any way they see fit. They could construe them as consoling or comforting, or as a concession of liability. Healthcare providers need to be aware that their words, in the aftermath of a serious adverse event, are powerful and they must choose them wisely. They need to be carefully trained in this process so that appropriate disclosure is made, or as an alternative, have access to resources and staff who can mentor them through the disclosure process. And they need to be aware that patients will remember the conversation. Estate of Johnson v Smith, No. 2013-Ohio-1507 (Ohio April 23, 2013)
ME D I CAL MALPRAC TIC E/DELAY I N T RE A T MEN T Providers may be liable for delay in treating cancerous lesion FA CT S: Marie Huddleston underwent a computed tomography (CT) scan at St. Joseph Mercy Hospital–Ann Arbor (Hospital) in 2003 that revealed a lesion on her left kidney that measured 2.7 × 2.5 cm. The existence of the lesion was not disclosed to Ms. Huddleston, and no further treatment for it was performed. The report from the CT scan was supposed to be delivered by the hospital to Dr. Joyce Leon. Whether it was so transmitted was not disclosed in this decision. Ms. Huddleston underwent another CT scan in 2008, at which time the lesion was again observed. The lesion measured 5.2 × 4.4 cm in 2008. Ms. Huddleston underwent a total nephrectomy of her left kidney in 2008. Ms. Huddleston filed suit for medical malpractice for the delay in addressing the lesion. She alleged that had the lesion been resected in 2003, she could have had a partial nephrectomy, rather than a total nephrectomy. The trial court granted a motion for summary judgment filed by the defense and dismissed Ms. Huddleston’s claims. This appeal to the Court of Appeals of Michigan ensued.
I SSUE : Can Ms. Huddleston state a cause of action as a result of undergoing a total nephrectomy as opposed to a partial nephrectomy? 50
A N A LY S I S : The court of appeals held that Ms. Huddleston had claimed an injury that could give rise to a valid cause of action. The court cited the case of Sutter v Biggs, 377 Mich 80, 139 NW2d 684 (Mich 1966), in which a cause of action was found for the wrongful removal of a healthy fallopian tube and ovary. The court in that case found that the plaintiff had stated a cause of action even though her reproductive ability was not diminished due to the presence of redundant systems. Liability could be imposed for the loss of the “reserve” organ. The court in the present case held that Ms. Huddleston could be entitled to damages for the total loss of her kidney. The granting of the motion for summary judgment as to Dr. Leon was reversed, and the matter was remanded to the trial court. However, the court also reviewed the expert testimony in the case and held that Ms. Huddleston had not shown what the hospital’s duty of care was in this case. There was testimony regarding the manner by which reports were transmitted to the ordering physician’s office, but this did not establish that the hospital had a duty to fax the report or to confirm receipt, as she had alleged in her Complaint. Consequently, the granting of the motion for summary judgment as to the hospital was affirmed.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : This case underscores the need for failsafe mechanisms in delivering reports on tests, especially critical tests, to the ordering physician in a timely manner. Each healthcare entity that performs laboratory tests or imaging studies should have a policy on critical values. The policy should define critical values with some specificity and should prescribe a mechanism for transmitting the result to the ordering physician. As this case illustrates, healthcare facilities would be well advised to consider the appearance of any mass on an imaging study to be a critical value. If a critical value is obtained, the policy should specify the mechanism by which the value is transmitted. For hospitalized patients, the lab or x-ray department normally calls the floor or unit to convey the results. The testing department normally calls the physician’s office or mails the results for tests on outpatients. It is a basic tenet of patient safety that highly complicated systems are more likely to fail than simple systems. The more steps in a process, the more likely it is that a step will be missed or that a step will fail. Accordingly, a strong argument can be made for a system in which the testing department calls the ordering physician directly to convey the results. The problem with conveying the result to an intermediary (eg, floor/unit/office nurse or a receptionist) is obvious. The intermediary may or may not appreciate the gravity of the finding. If the intermediary does not appreciate the gravity of the situation, s/he may not be so diligent
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in contacting the ordering physician as the circumstances would warrant. This can lead to unnecessary delay. There is also potential for problems with transmitting the result only by ordinary written or electronic report, without a telephone call. It is entirely possible that the report can be inadvertently filed in the patient’s chart without the physician’s review or that the report can be lost or misplaced. If this happens, it is entirely possible, as happened in this case, that the condition may not be discovered until additional testing is performed. It may be fortunate in this case that the outcome was not worse. This is not to say that physicians should not be responsible for ensuring that they receive the results of any test they order. Providers should have a log or tickler system that will alert them, or their office staff, when the results of an ordered test have not been received when expected. And when results are received, the system must ensure that the results are not filed away without provider review.
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Any unnecessary delay in addressing a critical value should not be tolerated, but blaming people for the problem may not be helpful. There are system issues at work in this situation. The systems need to be designed carefully so that unnecessary delay is engineered out of the system. If the systems issues have been corrected but employees still fail to deliver important information in a timely manner, then corrective action, including discipline, needs to be taken. Otherwise, there will continue to be cases like this one. Huddleston v Trinity Health Michigan, No. 303401 (Ct App Mich September 11, 2012)
A BO U T TH E A U TH O R John C. West, JD, MHA, DFASHRM, CPHRM, is the Principal of West Consulting Services, an independent risk management and patient safety consulting firm. This column does not provide legal advice. Readers should consult with counsel for specific legal concerns. For questions or comments, contact the author at [email protected].
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Case Law Update E MO TI O N A L D I S TR E S S Hospital was not liable for failing to timely disclose assault to patient’s daughter FA C TS :
By John C. West, JD, MHA, DFASHRM, CPHRM
Santina Di Teresi was a patient at Stamford Hospital on March 23, 2004. She suffered from dementia, advanced Alzheimer’s disease, Parkinson’s disease, and other ailments. She was 92 years old and was considered a total care patient. She was under the care of Robert Mayes, CNA, as well as other employees of the hospital. At approximately 10:00 a.m. on the date in question, Latrina Futrell-Annosier, a nurse who was caring for Santina, walked into her room and discovered Mr. Mayes sexually assaulting her. She left the room and notified management of the situation. While she was doing this, Mr. Mayes allegedly changed Santina’s gown and bed linens, and generally cleaned up the room and Santina. The hospital began to investigate and escorted Mr. Mayes from the building at approximately 11:00 to 11:30 a.m. In the course of the investigation, the administration, risk management, human resources, and security met to discuss the best course of action. External counsel was contacted for advice. The hospital asked Mr. Mayes to return to the hospital, which he did at approximately 4:00 p.m. He denied that he assaulted Santina. The Stamford Police Department was contacted at 4:30 p.m. A rape examination was performed on Santina at 9:00 p.m. Santina’s daughter, Virginia Di Teresi, came to the hospital at approximately 2:00 or 2:30 p.m. on the day in question. Virginia visited Santina regularly and held her power of attorney. At 5:00 or 5:30 p.m., 3 hospital employees approached Virginia, took her to a private meeting room, and disclosed that her mother had been assaulted. No information on criminal charges was given. Suit was filed on March 22, 2006. The Complaint alleged 19 causes of action, 6 on behalf of Virginia and 13 on behalf of Santina. The claims brought by Virginia were for, among other things, negligent infliction of emotional distress, intentional infliction of emotional distress, recklessness, and breach of fiduciary duty as a result of the delay in informing her of the assault. The hospital moved for summary judgment on 12 of the counts, including the 6 brought on behalf of Virginia. The trial court granted the motion in its entirety. The appeal ensued, but only as to the counts brought on behalf of Virginia.
ISSUES: Did the hospital’s actions toward Virginia (failing to notify her of the assault in a timely manner) negligently cause her emotional distress? Did the hospital intentionally cause Virginia emotional distress? Did the © 2014 American Society for Healthcare Risk Management of the American Hospital Association Published online in Wiley Online Library (wileyonlinelibrary.com) • DOI: 10.1002/jhrm.21134 44
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hospital act recklessly? Did the hospital breach a fiduciary duty to Virginia?
ANA LYSIS: The court noted that, in Connecticut, there are 2 elements necessary to show that a defendant negligently inflicted emotional distress on another: (1) a determination of whether an ordinary person in the defendant’s position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result; and (2) a determination, on the basis of a public policy analysis, of whether the defendant’s responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case. The court also noted that there are 3 general types of negligent infliction of emotional distress claims that are relevant here: the first involves the limited duty owed by healthcare providers to third parties; the second deals with negligent infliction of emotional distress claims arising from medical malpractice; and the third addresses the consequences of imposing liability for a failure to report or a delay in reporting. The court noted that, as a general rule, a healthcare provider does not owe a duty to anyone other than his/her patient [Maloney v Conroy, 208 Conn 392, 545 A2d 1059 (1988)]. Duty is normally a question of law for the court to decide and, in the case of medical malpractice, allowing a duty to a person other than the patient could open the floodgates of litigation by persons other than the party who was actually injured. The court noted that there were issues associated with imposing a duty to report an occurrence of this sort in a timely manner. Such a duty would potentially give a hospital inappropriate incentives. For example, the court noted that the hospital may decide not to disclose the event at all because it felt that too much time had elapsed since the event. Alternatively, the court noted that a hospital may rush to judgment in a given situation because it was fearful that too much time might elapse before the event was disclosed. Therefore, the court noted that there was a public policy that militated in favor of not imposing a duty to disclose such events to third parties within a specific period of time. Additionally, the court noted that allowing damages for negligent infliction of emotional distress in this type of claim raised practical issues. Virginia experienced 2 types of emotional distress: that associated with discovering that her aged and infirm mother had been sexually abused, and that associated with the delay in reporting the event to her. Since it is impossible to dissociate the 2 causes of distress, the court noted that allowing such a claim would be unnecessarily problematic. Accordingly, the court affirmed the grant of summary judgment on the negligent infliction of emotional distress claim. DOI: 10.1002/jhrm
The test for finding intentional infliction of emotional distress in Connecticut involves 4 elements: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant’s conduct was the cause of the plaintiff ’s distress; and (4) that the emotional distress sustained by the plaintiff was severe. The court noted that Virginia’s arguments in this count were very similar to her arguments for negligent infliction of emotional distress. It held that Virginia had not shown that the hospital had intended to inflict emotional distress on her, or that it should have known that, by delaying the disclosure, it would inflict emotional distress on her. The court also held that the hospital’s conduct was neither extreme nor outrageous. Accordingly, the court affirmed the grant of summary judgment on this claim. The court held that the tort of recklessness required a showing of intentional disregard for the safety of another in a situation involving danger to the other person. It is a form of aggravated negligence that goes far beyond simple negligence or inadvertence. The court held that there was no evidence of recklessness here and affirmed the grant of summary judgment on this claim. Finally, the court held that the hospital did not stand in a fiduciary relationship with Virginia; hence, there could be no breach of a fiduciary relationship. Accordingly, the court affirmed the grant of summary judgment on this claim. In conclusion, the court of appeals affirmed the grant of summary judgment for the defense on all of Virginia’s claims.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : This decision is very helpful to healthcare entities because it clarifies their potential liability in a situation in which there may otherwise be substantial liability. Courts are careful to draw lines around liability because it can spread outward in all directions from a single negligent act if left unchecked. There may still be liability to Santina—that was not at issue here. In addition, this is not to say that notification to families and/or patient representatives should not be made in a timely manner. It should be accomplished in due course after the investigation has yielded actionable information, in a manner consistent with appropriate transparency and disclosure practices. This case also reinforces the need to be both vigilant and diligent in hiring and supervising employees. Healthcare entities need to consider their employees’ backgrounds carefully for any sign of potentially deviant behavior. This includes checks for criminal background, licensure issues, and sex offender websites. There are too many times during a patient’s hospitalization—especially a frail, elderly,
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and vulnerable patient—when an employee may have inappropriate access to the patient. Hospitals need to ensure that there is a careful balance between assuring the patient’s privacy and protecting the patient from abuse. This kind of case often gives rise to simple respondeat superior liability: let the employer respond for the actions of the employee. It may be possible to defend against the imposition of respondeat superior liability by showing that the employee was acting outside the course and scope of his employment when the act in question was committed. Simply put, hospitals do not hire employees to sexually abuse their patients. This can also give rise to another kind of cause of action: one for either negligent hiring or negligent supervision. Either of these is preferable to respondeat superior liability, because this latter liability is automatic: if the employee was acting within his job responsibilities, the employer is responsible without having to prove fault on the part of the employer. With either negligent hiring or negligent supervision, the plaintiff has to prove that the hospital was negligent. The best defense to either of these claims is to show that the hospital was diligent in hiring and supervising the employee, and that any complaint of inappropriate behavior was investigated and corrected, as appropriate. Di Teresi v Stamford Health System, No. AC 33052 (Ct App Conn April 23, 2013)
I NFORMED C ON SEN T Informed consent required when using nonowned equipment in Utah FA CT S: Buu Nguyen’s son suffered severe injuries in a motor vehicle accident and was admitted to the pediatric intensive care unit (PICU) at Primary Children’s Medical Center. He was under the care of Dr. Madeline Witte. Dr. Witte determined that the patient needed an alteration in his treatment regimen, but before she could change his regimen, she needed to obtain a CT scan of his head. This entailed transporting the patient from the PICU to Radiology, which was on a different floor of the hospital. The only portable respirator available to meet the patient’s needs was a demonstrator ventilator that the hospital was evaluating to see if it was appropriate for use in transporting critically ill patients by air. The ventilator was approved by the Food and Drug Administration (FDA) for this use, but its uses and characteristics were not completely familiar to the staff of the hospital. The ventilator had been studied by a hospital committee for its suitability for use in transporting patients outside the hospital, and a protocol for its use had been developed. The protocol indicated that it was to be used 46
on medically stable patients. Dr. Witte sought the permission of the committee to use the ventilator on Mr. Nguyen’s son to transport him from PICU to Radiology, which was granted. The staff hooked the patient to the ventilator and allowed it to run for an hour before the transport to ensure that it would work properly. No problems were noted, so the patient was transported, without incident, to Radiology. However, on the return trip to the PICU the ventilator suddenly stopped working. Despite the efforts of available staff, the patient died shortly thereafter. In a subsequent evaluation of the ventilator, it was determined that the malfunction was caused by a screw that had come loose and caused the ventilator to short-circuit. This could not have been foreseen by the staff members using the equipment, and there was no evidence that the staff members did not use the equipment appropriately. Mr. Nguyen filed suit against, among others, the hospital for the death of his son. On a previous appeal to the Utah Court of Appeals, the case was reversed and remanded to the trial court with instructions that the defendants were under a duty to obtain Mr. Nguyen’s informed consent before using the ventilator on his son. On remand, the trial court held that the duty to obtain informed consent ran to the physicians, rather than the hospital, and dismissed this claim against the hospital. Mr. Nguyen appealed again on the grounds that it was improper to dismiss this claim against the hospital. This decision is the decision of the court of appeals on the second appeal.
ISSUE: Did the hospital have a duty to obtain Mr. Nguyen’s informed consent under these circumstances?
A N A LY S I S : The court of appeals noted that virtually all of the states that have addressed this issue have ruled that, under normal circumstances, the duty to obtain informed consent runs to the physician, not the hospital. The court held that “Therefore, consistent with the overwhelming weight of precedent from other states, we agree that, absent any special circumstances, a hospital does not generally owe an independent duty to obtain a patient’s informed consent to treatment.” [Emphasis added] The court went on to determine whether “special circumstances” applied in this case to bring it outside this general rule. One issue that the court addressed was the foreseeability of harm. It noted that the risk of harm was foreseeable, given that the hospital was using untested equipment with which its staff was unfamiliar. The court also cited cases from other jurisdictions in which special circumstances were found to impose liability on a hospital for failing to obtain informed consent. See, eg, Lenahan
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v University of Chicago, 808 NE2d 1078, 1084 (Ill Ct App 2004) (holding that “under ‘these particular facts,’ a hospital as well as a physician may be held liable for claims arising from the lack of informed consent” when the hospital “undertook the responsibility to inform the plaintiff of the experimental nature of his surgery”); Kus v Sherman Hospital, 644 NE2d 1214, 1220 (Ill Ct App 1995) (“[A] hospital, as well as a physician, may be held liable for a patient’s defective consent in a case involving experimental intraocular lenses[.]”); Friter v Iolab Corp., 607 A2d 1111, 1113 (Pa Super Ct 1992) (“In this instance, the hospital, as a participant in a clinical investigation for the FDA, specifically assumed a duty to ensure that an informed consent was obtained [from] any patient participating in the study.”). The parentheticals in the foregoing citations are taken from this court’s opinion. The court held that special circumstances were present in this case.
answer these questions, and it is unclear what those answers might be.
The court also addressed the issue of whether the hospital had the capacity to avoid the loss. This requires an analysis of the defendant’s ability to take reasonable steps to avoid injury. The court held that it was reasonable to require a hospital to obtain the patient’s informed consent when authorizing the use of unfamiliar equipment in circumstances such as those present in this case. It noted that this obligation can be met by the physician’s acting on the hospital’s behalf in addition to her own behalf.
Whether a piece of equipment has been approved by the FDA is an easy determination to make, unlike the issues noted above that underlie the application of this decision going forward. If a piece of equipment has not been approved by the FDA, any use of the equipment, including the patient’s informed consent for the use of the equipment, must be approved by the hospital’s IRB. The committee that approved the use of the ventilator in this case was not an IRB, and the equipment had been approved by the FDA. This was not a case involving the use of a piece of equipment in a clinical trial. Its use was neither experimental nor investigational. This takes it outside the line of precedent cited by the court in this case.
Accordingly, the court held that the hospital did have a duty to obtain Mr. Nguyen’s informed consent before using the ventilator on his son. The court remanded the case for further consideration consistent with this opinion.
RI SK MAN AG EMEN T C ON SIDER ATI O N S : While no one would dispute that this is a terrible case, as are all cases that involve the death of a child, the question to be answered by the court is the allocation of fault by a fair and reasonable mechanism. This decision is problematic for hospitals on a number of levels. It sets standards that are not measurable or quantifiable. This is a troubling case for hospitals because it is difficult to understand and define the parameters within which the decision operates. Does the court mean to imply that a hospital needs to obtain the patient’s informed consent whenever a new piece of equipment is used in the hospital? For how long is a piece of equipment “new”? Or does the court feel that this is necessary only when the equipment is critical to sustaining life, as in the case of a ventilator? Does it only apply to nonowned equipment that is in the hospital on a trial basis? Additionally, for how long does this obligation extend? Does it run for as long as the staff is unfamiliar with the piece of equipment? How is one to measure when staff members become comfortable with a piece of equipment? Unfortunately, the court did not
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In each case cited by the court, one will note that the equipment in question was “investigational” or “experimental.” These are terms of art applied to equipment that has not been approved by the FDA and that are being used in clinical trials. See Kus v Sherman Hospital, 268 Ill App 3d 771 (1995). In such cases, hospitals have been held responsible for obtaining the patient’s informed consent, and the consent must strictly comply with the consent form approved by the hospital’s institutional review board (IRB). See 21 C.F.R. §56.109; Department of Health and Human Services, Office for Human Research Protection, available at http://hhs.gov/ohrp/; Lenahan v University of Chicago, 808 NE2d 1078, 1084 (Ill Ct App 2004); Kus v Sherman Hospital, 644 NE2d 1214, 1220 (Ill Ct App 1995); Friter v Iolab Corporation, 607 A2d 1111, 1113 (Pa Super Ct 1992).
This is not to say that good channels of communication with the patient and the family are not crucial in situations like this. The patient and the family need to be fully informed of the risks of any change in treatment regimen or any procedure that carries a material risk of harm. This is a lower standard than requiring the informed consent of the patient or family. This case also highlights other risk management issues. While some of these issues were not at issue in this decision, hospitals need to be prepared for events of this nature. There is always the possibility that a ventilator will malfunction, particularly in transport, and emergency supplies should be readily available, both during transport and in the remote location. Transport personnel need to be able to call a code from any point in the hospital. Additionally, hospitals must always be certain that they are equipped to address the needs of high-acuity patients, and transfer those whom they cannot accommodate. The failure to plan for management of deterioration in the patient’s condition may result in serious injury to the patient as well as resultant litigation and liability.
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Nguyen v IHC Medical Services, Case No. 20110152-CA (October 25, 2012)
SE X UAL ASSAULT Hospital may be liable for failing to follow chaperone policy FA CT S: The plaintiff, identified only as Jane Doe, had an appointment for a physical examination with Dr. Richard Saulle, an employee of Montefiore Medical Center (MMC). When she appeared for the appointment, Dr. Saulle informed her that he would have to perform a pelvic examination, although Ms. Doe objected and indicated that she had had a pelvic examination 2 weeks before. Dr. Saulle insisted and Ms. Doe complied. Dr. Saulle did not arrange to have a chaperone present during the examination, despite MMC’s unwritten (but “spoken”) policy that a chaperone should be present. Dr. Saulle allegedly instructed Ms. Doe to get on her hands and knees on the examination table, and then he allegedly touched her inappropriately. Ms. Doe alleges that this was done for Dr. Saulle’s sexual gratification. When Ms. Doe reported the incident, MMC removed Dr. Saulle from duty. His employment was later terminated. Ms. Doe filed suit for negligence and breach of fiduciary duty against MMC, as well as other parties. She also filed a complaint with the New York State Department of Health, State Board of Professional Affairs, which was resolved by consent decree. The defendants filed a motion for summary judgment, which is the subject of this decision.
I SSUE S: Did MMC negligently supervise Dr. Saulle? Was it negligent for MMC to employ Dr. Saulle and place him in a position where he could assault patients because the hospital did not enforce its chaperone policy? Was the assault foreseeable? Did MMC breach its fiduciary duty to Ms. Doe by allowing Dr. Saulle to examine her?
ANA LYSIS: The court reviewed the evidence of record, which consisted of a number of e-mails and other materials, and determined that MMC was not on notice that Dr. Saulle would have a propensity to assault female patients. The court held that Dr. Saulle may have, on occasion, exhibited bizarre and erratic behavior, some of it directed to female coworkers, but none of it indicated that his behavior was sexual in nature. Accordingly, the court held that Dr. Saulle’s conduct in assaulting Ms. Doe was not foreseeable by MMC based on his prior behavior. The court
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granted the motion for summary judgment with respect to the plaintiff ’s claims of negligent supervision. The court also reviewed the unwritten policy that required a chaperone when a male physician was performing an intimate examination of a female patient. Plaintiff argued that MMC was negligent because Dr. Saulle violated the chaperone policy and that MMC was negligent for failing to have a mechanism for enforcing the policy. The court held that, by having a policy requiring chaperones, MMC was on notice of the need for chaperones; hence, the assault could be foreseeable on this basis. The court reserved judgment for trial on the issue of whether the chaperone policy was deficient because it did not have a mechanism for enforcement. The court denied the motion for summary judgment on this issue. The court noted that the claim for breach of fiduciary duty was redundant of the claim for negligent supervision. The court held that this claim failed for the same reasons that the claim for negligent supervision failed, and granted the motion for summary judgment on this issue. Accordingly, the court granted the motion for summary judgment in part and denied it in part.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : This is an odd case because a literal reading of the case would indicate that healthcare entities may be better off without a chaperone policy. Such is not the case. The American Medical Association expressly advises physicians and healthcare entities to have a chaperone in place when performing intimate examinations on female patients (American Medical Association, “Opinion 8.21 - Use of Chaperones During Physical Exams,” available at http:// www.ama-assn.org/). That sets the standard of care for physicians and, therefore, it is likely that a healthcare entity would be found negligent for not having such a policy. However, like all policies, a chaperone policy will be used against the physician or the entity if the policy is not followed. A facility’s policy constitutes an admission regarding the way in which intimate examinations should be performed. The best practice is to always have a chaperone present during intimate examinations. While it does not appear that it would have helped in this case, this situation also demonstrates the need to perform diligent background checks on all healthcare practitioners, including physicians. The U.S. Department of Justice operates the National Sex Offender Public Website, available at http://www.nsopw.gov/, which is available for searching without charge. Many states perform criminal background checks as part of the licensing process, but healthcare entities are well advised to do their own criminal background checks. These should be national background checks.
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Additionally, there should be a zero tolerance policy for disruptive behavior, particularly where the behavior is sexual in nature. A chain-of-command policy must be in place, and all employees should feel empowered by administration to use it. Any aberrant behavior, especially if it is sexual in nature, must be dealt with immediately. In short, in order to defend against a claim of this sort, an entity will have to show that it exercised proper due diligence. The entity must show that it was diligent in screening applicants, that it monitored the performance of employees and medical staff members, that it had (and enforced) a chaperone policy, and that it took action when necessary. To do less is to invite court litigation. Doe v Montefiore Medical Center, No. 12 Civ 686 (CM) (SDNY February 19, 2013)
D I SCL O SU RE Ohio’s apology statute applicable to actions filed after enactment FA CT S: Jeanette Johnson underwent a cholecystectomy on April 24, 2001. The surgery was performed by Dr. Randall Smith. The surgery was initially performed laparoscopically but had to be converted to an open procedure when Dr. Smith realized that he had injured the common bile duct. He repaired the injury and completed the operation. He later explained what had happened to Ms. Johnson. Ms. Johnson developed complications related to the surgery 1 month later. She returned to the hospital where the surgery was performed, but the hospital was not equipped to manage her care. The hospital arranged for transportation to another hospital for further care. Prior to the transfer, Ms. Johnson was agitated and upset. Dr. Smith comforted her and told her, “I take full responsibility for this. Everything will be okay.” The ultimate outcome of the additional care was not disclosed in this decision. In 2004, the Ohio legislature passed the “apology statute,” which makes inadmissible “any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence that are made by a healthcare provider” to a patient [Ohio Rev. Code §2317.43(A)]. Ms. Johnson filed suit for negligence on August 19, 2002. However, she voluntarily dismissed this action in 2006 and refiled it on July 26, 2007. Dr. Smith made a motion in limine before trial to suppress the statement that he had made to Ms. Johnson prior to her transfer to the second hospital. The trial court granted the motion. The case went to trial and resulted in a defense verdict. The case was appealed on the issue of the admissibility of the
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statements, and the court of appeals reversed, holding that the statements should have been admitted at trial. This appeal to the Supreme Court of Ohio was taken.
ISSUE: Although the statement was made before the apology statute was enacted, should the statement have been excluded because the action was filed after the statute was enacted?
A N A LY S I S : The court noted that the original suit, filed in 2001, was a legal nullity because it had been voluntarily dismissed. Thus, even though the original suit was filed before the apology statute was enacted, it had no effect on the admissibility of Dr. Smith’s remark prior to Ms. Johnson’s transfer. The suit that was effective in deciding this issue was the present one, which was filed in 2007, after the enactment of the apology statute. The court also observed that the relevant portion of the apology statute begins with the phrase: “In any civil action brought by an alleged victim…” [Ohio Rev. Code §2317.43(A)]. The court filled in a missing portion of the statute by holding that this statute covered any civil action brought after the effective date (2004) of the statute. Accordingly, the apology statute was determinative of the issue of admissibility of the statements. The court also held that the statements were meant to comfort and console; hence, they fell within those statements meant to be excluded by the statute. Consequently, the Supreme Court reversed the judgment of the court of appeals and reinstated the judgment of the trial court. The court held that the statements were properly excluded from evidence.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : While this case applies only to litigation in Ohio, it is a favorable case for healthcare providers. The case could certainly have gone the other way and allowed the statements into evidence, as the court of appeals held. This case highlights that disclosure statements can be problematic if not managed appropriately. Words are powerful and are often determinative of the outcome of a legal case. If disclosure is made, it should be limited to the facts of the occurrence. From an ethical perspective, the patient and family are undeniably entitled to know what happened. Adverse outcomes can still happen in the absence of negligence. Providers should not be quick to admit fault in the heat of the moment. This case also highlights the ambiguity of language. The statement is simple: “I take full responsibility.” But its meaning is far from clear. Did Dr. Smith mean that he
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took full responsibility because the event happened while he was operating? Did he mean that he would be legally responsible for Ms. Johnson’s medical expenses? Did he mean that he would be legally responsible for all of Ms. Johnson’s damages? Did he mean that the occurrence was his responsibility and that Ms. Johnson was not at fault for what happened in any way? The danger is that when statements like this are entered into evidence, the jury is free to construe the statements in any way they see fit. They could construe them as consoling or comforting, or as a concession of liability. Healthcare providers need to be aware that their words, in the aftermath of a serious adverse event, are powerful and they must choose them wisely. They need to be carefully trained in this process so that appropriate disclosure is made, or as an alternative, have access to resources and staff who can mentor them through the disclosure process. And they need to be aware that patients will remember the conversation. Estate of Johnson v Smith, No. 2013-Ohio-1507 (Ohio April 23, 2013)
ME D I CAL MALPRAC TIC E/DELAY I N T RE A T MEN T Providers may be liable for delay in treating cancerous lesion FA CT S: Marie Huddleston underwent a computed tomography (CT) scan at St. Joseph Mercy Hospital–Ann Arbor (Hospital) in 2003 that revealed a lesion on her left kidney that measured 2.7 × 2.5 cm. The existence of the lesion was not disclosed to Ms. Huddleston, and no further treatment for it was performed. The report from the CT scan was supposed to be delivered by the hospital to Dr. Joyce Leon. Whether it was so transmitted was not disclosed in this decision. Ms. Huddleston underwent another CT scan in 2008, at which time the lesion was again observed. The lesion measured 5.2 × 4.4 cm in 2008. Ms. Huddleston underwent a total nephrectomy of her left kidney in 2008. Ms. Huddleston filed suit for medical malpractice for the delay in addressing the lesion. She alleged that had the lesion been resected in 2003, she could have had a partial nephrectomy, rather than a total nephrectomy. The trial court granted a motion for summary judgment filed by the defense and dismissed Ms. Huddleston’s claims. This appeal to the Court of Appeals of Michigan ensued.
I SSUE : Can Ms. Huddleston state a cause of action as a result of undergoing a total nephrectomy as opposed to a partial nephrectomy? 50
A N A LY S I S : The court of appeals held that Ms. Huddleston had claimed an injury that could give rise to a valid cause of action. The court cited the case of Sutter v Biggs, 377 Mich 80, 139 NW2d 684 (Mich 1966), in which a cause of action was found for the wrongful removal of a healthy fallopian tube and ovary. The court in that case found that the plaintiff had stated a cause of action even though her reproductive ability was not diminished due to the presence of redundant systems. Liability could be imposed for the loss of the “reserve” organ. The court in the present case held that Ms. Huddleston could be entitled to damages for the total loss of her kidney. The granting of the motion for summary judgment as to Dr. Leon was reversed, and the matter was remanded to the trial court. However, the court also reviewed the expert testimony in the case and held that Ms. Huddleston had not shown what the hospital’s duty of care was in this case. There was testimony regarding the manner by which reports were transmitted to the ordering physician’s office, but this did not establish that the hospital had a duty to fax the report or to confirm receipt, as she had alleged in her Complaint. Consequently, the granting of the motion for summary judgment as to the hospital was affirmed.
R I S K MA N A GE ME N T C O N S ID ER AT I O NS : This case underscores the need for failsafe mechanisms in delivering reports on tests, especially critical tests, to the ordering physician in a timely manner. Each healthcare entity that performs laboratory tests or imaging studies should have a policy on critical values. The policy should define critical values with some specificity and should prescribe a mechanism for transmitting the result to the ordering physician. As this case illustrates, healthcare facilities would be well advised to consider the appearance of any mass on an imaging study to be a critical value. If a critical value is obtained, the policy should specify the mechanism by which the value is transmitted. For hospitalized patients, the lab or x-ray department normally calls the floor or unit to convey the results. The testing department normally calls the physician’s office or mails the results for tests on outpatients. It is a basic tenet of patient safety that highly complicated systems are more likely to fail than simple systems. The more steps in a process, the more likely it is that a step will be missed or that a step will fail. Accordingly, a strong argument can be made for a system in which the testing department calls the ordering physician directly to convey the results. The problem with conveying the result to an intermediary (eg, floor/unit/office nurse or a receptionist) is obvious. The intermediary may or may not appreciate the gravity of the finding. If the intermediary does not appreciate the gravity of the situation, s/he may not be so diligent
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in contacting the ordering physician as the circumstances would warrant. This can lead to unnecessary delay. There is also potential for problems with transmitting the result only by ordinary written or electronic report, without a telephone call. It is entirely possible that the report can be inadvertently filed in the patient’s chart without the physician’s review or that the report can be lost or misplaced. If this happens, it is entirely possible, as happened in this case, that the condition may not be discovered until additional testing is performed. It may be fortunate in this case that the outcome was not worse. This is not to say that physicians should not be responsible for ensuring that they receive the results of any test they order. Providers should have a log or tickler system that will alert them, or their office staff, when the results of an ordered test have not been received when expected. And when results are received, the system must ensure that the results are not filed away without provider review.
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Any unnecessary delay in addressing a critical value should not be tolerated, but blaming people for the problem may not be helpful. There are system issues at work in this situation. The systems need to be designed carefully so that unnecessary delay is engineered out of the system. If the systems issues have been corrected but employees still fail to deliver important information in a timely manner, then corrective action, including discipline, needs to be taken. Otherwise, there will continue to be cases like this one. Huddleston v Trinity Health Michigan, No. 303401 (Ct App Mich September 11, 2012)
A BO U T TH E A U TH O R John C. West, JD, MHA, DFASHRM, CPHRM, is the Principal of West Consulting Services, an independent risk management and patient safety consulting firm. This column does not provide legal advice. Readers should consult with counsel for specific legal concerns. For questions or comments, contact the author at [email protected].
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