Outpatient Psychiatric Treatment: The Duty to Prevent Patient Suicide

By Alex Stein

In Chirillo v. Granicz, — So.3d —- (Fla. 2016), 2016 WL 4493536, the Florida Supreme Court formulated an important rule for psychiatric malpractice cases. Back in 2001, the First District Court of Appeal decided that psychiatrists assume no liability for an outpatient’s suicide because it is generally unforeseeable. Tort liability, it held, can properly be imposed on a psychiatrist only for a custodial psychiatric malpractice. According to the First District, an inpatient’s suicide is foreseeable and psychiatrists can effectively prevent it by restraining the patient. Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001).

The Florida Supreme Court has now overruled Lawlor. Continue reading

Nevada’s $350,000 Cap on Noneconomic Damages Held Constitutional and Applicable Per Incident

By Alex Stein

Bad news for Nevada’s victims of medical malpractice. This state’s Supreme Court upheld the constitutionality of the $350,000 cap on noneconomic damages as limiting recovery for all kinds of victims and injuries. Tam v. Eighth Jud. Dist. Ct., — P.3d —- , 2015 WL 5771245 (Nev. 2015).  Moreover, the Court held that the cap applies per incident, which encompasses all mistakes that the doctor may have made in delivering a single treatment to a patient and all the victims of those mistakes (such as twins born with birth defects as a result of negligent prenatal care or delivery). For my discussion of the “per incident” and alternative approaches to caps, see here. Continue reading

“Medical Malpractice or Ordinary Negligence?” in the Context of Psychiatric Treatment

By Alex Stein

“Medical Malpractice or Ordinary Negligence?” is an issue that will stay on the courts’ agenda for long. See hereherehereherehere, here, and here.

As I explained in these posts and in a foundational article on medical malpractice, categorizing a plaintiff’s action as “medical malpractice” rather than “ordinary negligence” determines whether it must satisfy rigid limitations and repose provisions, comply with special and costly requirements with regard to expert testimony, face the difficult burden of proving the defendant’s deviation from the medical profession’s customary practices and protocols, and suffice itself with the compensation amounts allowed by the statutory caps on damages.

A recent Florida court decision, Shands Teaching Hosp. & Clinics v. Estate of Lawson, — So.3d —- 2015 WL 5057325 (Fla. 5th DCA 2015), illustrates the centrality of this issue for suits complaining about a psychiatric hospital’s neglect. Continue reading

Fraudulent Concealment and the Statute of Repose

By Alex Stein

Anyone interested in the tobacco litigation and/or medical malpractice must read Hess v. Philip Morris USA, Inc., — So.3d —- (Fla. 2015). Stemming from the Engle class action, this decision of the Florida Supreme Court advances the understanding of statutes of repose and how they apply, inter alia, in medical malpractice cases. Continue reading

The Scope of Virginia’s Birth–Related Neurological Injury Compensation Program

By Alex Stein

Virginia’s Birth–Related Neurological Injury Compensation Act of 1987 (BRNICA) affords aggrieved patients a no-fault compensation remedy for qualified injuries while giving potential tort defendants – doctors and hospitals who choose to participate in the Birth–Related Neurological Injury Compensation Fund – an absolute immunity from malpractice liability. Va. Code Ann. § 38.2-5002. For a parallel Florida statute, see Fla. Stat. § 766.302. Participation in this program is optional for both patients and care providers. The program compensates injured children for disability damages not covered by the government, health benefit plans, and private insurance. Pain, suffering, and other noneconomic damages are noncompensable (in Florida, they are capped at a low amount). By electing to receive treatment from a participating provider, the patient commits herself and her future child to pursue any compensation claim for birth-related neurological injury before a special administrative tribunal and automatically waives the right to bring a medical malpractice lawsuit against the participating physician or hospital. Wolfe v. Va. Birth–Related Neurological Injury Comp. Program, 580 S.E.2d 467, 476 (Va. 2003).

Because injury claims adjudicated by the tribunal do not depend upon medical malpractice, the tribunal’s decisions need not be reported to the National Practitioner Data Bank pursuant to the Health Care Quality Improvement Act of 1986. This Act, 42 U.S.C. § 11131, only requires reporting of payments “under a policy of insurance, self-insurance, or otherwise in settlement (or partial settlement) of, or in satisfaction of a judgment in, a medical malpractice action or claim.”

The scope of BRNICA’s coverage is consequently of paramount importance for patients, doctors, and hospitals. Virginia’s appellate court’s decision in Women’s Healthcare Associates, Inc. v. Mucci clarifies this scope. Continue reading

Evidential Damage: Liability for Uncertainty in Medical Malpractice Suits

By Alex Stein

As I wrote in my book with Ariel Porat, Tort Liability Under Uncertainty, our torts system must develop systematic remedy for wrongful inflictions of evidentiary harm.

The Florida Supreme Court’s recent decision, Saunders v. Dickens, — So.3d —- (Fla. 2014), is a case in point. Continue reading

Medical Malpractice Decision of the Year: Florida Supreme Court voids the $1M cap on noneconomic damages for a patient’s wrongful death

By Alex Stein

We are just in mid-March, but yesterday’s decision of the Florida Supreme Court, McCall v. United States, — So.3d —-, 2014 WL 959180 (Fla. 2014), is – and will likely remain – the most important medical malpractice decision of 2014.

The case at bar presented a particularly egregious example of medical malpractice: a young woman died after delivering a healthy baby as a result of preventable loss of blood. This tragic event took place at an air-force base hospital. The victim’s survivors therefore filed their medical malpractice suit with a federal court pursuant to the Federal Tort Claims Act (FTCA). Under FTCA, the suit was governed by Florida law. Following bench trial, the United States District Court found the United States liable, but applied Florida’s $1,000,000 cap on wrongful-death noneconomic damages recoverable for medical malpractice. On appeal, the victim’s survivors challenged the cap’s constitutionality. The Eleventh Circuit affirmed the District Court’s decision, but certified questions of Florida constitutional law with regard to the cap.

The Florida Supreme Court rephrased the certified questions as follows:
Does the statutory cap on wrongful death noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?

Continue reading

The Battle of Privileges

By Alex Stein

When a patient files a malpractice suit against a doctor, she waives the evidentiary privilege that protects the information pertaining to her treatment by the doctor. This information extends to all communications between the patient and the doctor, the patient’s medical history, diagnosis, treatment, and medical records. The patient’s waiver of the privilege is not absolute. Rather, it relates only to information and documents needed for the doctor’s defense. The same principle applies to the patient’s treating physician whom she did not sue. The defendant is entitled to subpoena this nonparty physician and obtain from her information and documents relevant to his defense.

To realize this entitlement, the defendant’s attorney needs to interview the nonparty physician before trial. The patient’s attorney demands to be present at that interview to protect her client’s privilege by appropriately limiting the physician’s questioning by the defendant’s attorney. The defendant’s attorney counters this demand by invoking the attorney-client privilege and its “work product” extension.

This battle of privileges has no easy solution. Continue reading


Uncertain Future for the Same-Specialty Law in Florida

By Alex Stein

Florida statute, § 766.102(12) (2012), lays down a strict same-specialty requirement for expert witnesses supporting medical malpractice allegations. Specifically, it provides that “If a physician licensed under chapter 458 or chapter 459 or a dentist licensed under chapter 466 is the party against whom, or on whose behalf, expert testimony about the prevailing professional standard of care is offered, the expert witness must be licensed under chapter 458, chapter 459, or chapter 466 or possess a valid expert witness certificate issued under s. 458.3175, s. 459.0066, or s. 466.005.”

The Florida Bar Code and Rules of Evidence Committee recommended the Florida Supreme Court to adopt this statutory provision “as a rule of procedure to the extent that it is procedural.”

The Board of Governors recommended the Court to reject the Committee’s proposal “on the grounds that the provision is unconstitutional, will have a chilling effect on the ability to obtain expert witnesses, and is prejudicial to the administration of justice.”

The Court declined to follow the Committee’s recommendation due to the concerns raised. See here. The Court had another good reason for declining to adopt this recommendation: the provision in question is substantive rather than procedural. See here.