If a patient is injured in a hospital, and a lawsuit emerges, it can fall under the category of “ordinary negligence” or “medical malpractice.” For cases that qualify as legal claims, the vast majority of such claims fall under the category “medical malpractice.”
Why does it even matter?
The two categories often have different statutes of limitations, damage caps, need for expert testimony, and so on. The cost to pursue the case and the amount of money which can be recovered may vary dramatically.
An example of “ordinary negligence” is a patient slipping on a puddle of water in a hospital corridor. That’s pretty straightforward. It’s just coincidental the “slipee” is a patient. A person who slipped may not even be a patient receiving care at the hospital. He could be a visitor or staff member. Regardless, the slip has nothing to do with medical care being delivered. It just happens to occur at a hospital. Here, the analysis is simple. Send the claim to your premises liability insurance carrier. It ain’t malpractice.
Some cases are more challenging.
In Pluard v. Patients Comp. Fund, 705 N.E.2d 1035, (Ind. Ct. App. 1999), a lawsuit was based on the allegation a surgical lamp became detached from the wall and fell on a newborn’s head. Although a nurse had positioned the light at the direction of a doctor, it was not the positioning of the light – but its detachment – that caused the injury. Again, ordinary negligence. Not medical malpractice.
A recent case detailed how to parse the even tougher ones. Anonymous Hospital, Inc. v. Doe, 996 N.E. 2d 329 (Ind. Ct. App. 2013)
The appropriate analysis involves first, the nature of the conduct alleged in the complaint – whether or not the alleged negligence involves provision of medical services – and, second, whether the rendering of medical services is to the plaintiff for the plaintiff’s benefit. Ultimately, if the alleged harm would have occurred independent of medical services provided to the plaintiff, it sounds in common law negligence.
Now to the details of Anonymous Hospital, Inc. v. Doe, where the hospital wanted the case treated as medical malpractice, and not ordinary negligence. Word for word from the appellate decision:
On December 31, 2007, Doe was en route to a gathering of friends when she heard voices and became convinced that a “rapture” of Christians was occurring. She then jumped from her boyfriend’s moving vehicle. Doe’s friends contacted her parents, who took her to their South Bend home. Doe jumped out a window and ran down the road in blizzard-like conditions, eventually seeking refuge in a stranger’s home. There, she falsely accused her father of being a child molester.
Doe’s parents took her to the psychiatric ward of Anonymous Hospital. She was evaluated by a staff psychiatrist, who diagnosed her as “psychotic not otherwise specified.” It was noted that Doe was suffering from delusions, suicidal ideation, religious delusions, and auditory hallucinations. She was admitted for in-patient psychiatric care.
At some point, Doe encountered Marcus, a middle-aged patient who had been admitted for alcohol detoxification. Marcus was wrapped in a bed sheet, and Doe formed the belief that he was Jesus Christ.( Doe also expressed beliefs at various times that one of her parents was Satan, one parent was divine, and her psychiatrist was God.) She expressed a desire to wash Marcus’s feet. Later, Doe threw ice on her psychiatrist because she believed that he was trying to harm Marcus. Doe was placed in five-point restraints and provided with one-on-one monitoring. She was also prescribed several medications.
On January 7, 2008, Doe was placed on less intensive monitoring. Staff members were to make a notation of her whereabouts each fifteen minutes. On the morning of January 9, 2008, Doe’s psychiatrist met with Doe’s parents in a conference room five doors down from Doe’s room. Doe walked down the hallway and into the conference room but was told to go back to her room.
On the way back to her room, Doe passed by Marcus. He motioned to Doe to come into his room; when she approached, he pulled her into the room and they began kissing. Marcus unbuttoned his pants, pulled out his penis, and pushed Doe’s head toward it. After they engaged in oral sex, Marcus told Doe to leave and come back later. Doe returned as requested. Marcus then took Doe into the bathroom and attempted anal sex but could not achieve penetration. He moved Doe to the bed, where they engaged in vaginal intercourse.
Following this incident, Doe’s parents ended the meeting and came to Doe’s room to visit with her. Doe was on her bed, curled into a ball and trembling. She recoiled from her mother’s kiss and told her parents this would be the last time they would see her. Later, she told fellow patients that she wanted to die. Doe found a hospital social worker in the hallway and reported that she had been “lured” into a patient’s room, “fooled around” with him, and “went all the way.”
Doe’s psychiatrist initially informed Doe’s parents of his belief that Doe had experienced another delusion. However, Doe underwent a physical examination and a vaginal swab tested positive for semen. As a result, Marcus was immediately discharged from Anonymous Hospital and Doe was discharged under the full-time supervision of a nurse.
The hospital argued that expert opinion was needed to address the issues surrounding what should be deemed a “medical malpractice” case. The plaintiff argued she was assaulted in the hospital and the hospital had a duty to keep her (and anyone else on its premises) safe in what should be deemed an “ordinary negligence” case.
Drum roll….
Hospital won at the appellate level. The case will be treated as “medical malpractice” and not as “ordinary negligence.”
Here’s the reasoning; again word for word from the ruling.
Doe returned to Marcus’s room of her own volition, in the physical sense. Her participation in sexual acts with Marcus was not accomplished by force or threat of force, and he was not charged with criminal conduct. Rather, the gravamen of Doe’s complaint is that she was rendered incompetent to make an informed decision regarding sexual conduct because of psychotropic drugs prescribed for her by the employee of Anonymous Hospital. In other words, she was allegedly placed in a position of undue vulnerability because of decisions made by her treating physician, that is, which medications and what dosage were appropriate for her care while she was confined in close proximity to other patients….
Ultimately, however, a jury cannot decide whether Doe was indeed “attacked” absent a determination that she was or was not able to give consent given her pharmacological regimen. Her expert witness opined that she was unable to give consent while her treating psychiatrist opined that she was able to do so.
As Doe observes, the question of sufficient mental capacity to consent to sexual activity is a question of fact to be decided by the fact-finder. Hall v. State, 504 N.E.2d 298, 300 (Ind. Ct. App. 1987). However, in the face of an allegation that a mental deficiency was pharmacologically induced, the trier of fact would need expert assistance in reaching its determination. Doe appeared to her parents to be significantly under the influence of drugs but was aware of her surroundings and able to convey her wishes, such as asking to go home. A layman’s typical life experience cannot be expected to provide a basis for assessment of the propriety of a particular pharmacological regimen. In these circumstances, the fact-finder cannot be expected to determine whether there has been a breach of a particular standard of care absent expert medical testimony.
In short, the court concluded that an inpatient had sex in the hospital. Whether or not the patient was attacked (and the hospital is liable) will depend upon whether she consented to have sex. Whether she gave adequate consent or not will depend upon whether the pharmacologic cocktail prescribed by her doctor affected her capacity to give consent.
I’m skeptical the hospital will prevail long-term and expect that a check will be written. I wonder if this case would have been better addressed by mediation / early settlement. The date of the event triggering the suit was 2008. It’s now 2014. This case has lingered for a while. What is no less surprising is the fact the hospital has been able able to maintain anonymity throughout the legal process. A morning headline “Psychiatric Patient Raped in [Fill in the Blank of Your Hospital]” is not the start of a good day.
In Arizona, one of the most dramatic differences between ordinary negligence and medical malpractice is the burden of proof required of the plaintiff. In ordinary negligence, the plaintiff must show by a preponderance of the evidence that his/her claim has merit. Preponderance is defined as “more likely than not,” or for you mathematical types, 50+ percent.
In medical malpractice, the burden of proof is clear and convincing evidence. This is a considerably higher barrier to success for the plaintiff. In other words, a defendant is much better off if the plaintiff is required to meet the burden of clear and convincing evidence and not preponderance of evidence.
Dr. Perlmutter:
I had read that in Arizona, the standard for prosecuting an emergency case (ER docs and specialists providing emergency care) was clear and convincing evidence. But, that all other cases were still based on the preponderance of the evidence (51%) standard.
Are ALL medical malpractice cases in Arizona prosecuted at the tougher clear and convincing threshold.
Thanks.
Thanks for one of the most “entertaining” cases I have read in a long time. I have another to add to this: In our active-living retirement community (very active, I should say), two women had an altercation over a man. At a party, one women saw another woman kiss her boyfriend. Yes, I assume alcohol was involved. They got into a physical fight. (Please tell me what man is worth a physical fight over).
Eventually, the directors of our community denied them both certain privileges of using our various venues and accoutrements, as punishment.
A couple of years later, they found themselves together at another party and got into yet another very physical fight. Now, they are BOTH suing our community because our public safety people didn’t come “fast enough” to stop them. I believe they both are claiming physical injury as a result of the altercation.
I told you we live in an exciting place. We now have to pay our attorneys to deal with this lawsuit. We might very well lose it.
Back to the case at hand: This psychotic patient was not under-age. I think that some case law should look at the fact that she is NOT under the age of consent, and use that as a partial example on how to deal with this. Even though psychotic, I think we have to assume that she bears some “contributory negligence” for her own actions. (I know that this designation is no longer used by the courts).
At some point, people have to be responsible for their own actions. As a society, we are turning everyone into an opportunity to blame someone else.
Michael M. Rosenblatt, DPM
There was neither ordinary negligence nor medical malpractice.
Some patients admitted following an acute MI will die in the hospital. Some psychotic patients admitted in an acute delusional state will suffer from a variety of complications equally associated with psychosis such as self-injury and even suicide; alcoholics may smuggle in a drink and an anorexic may sneak in something to eat. None is medical malpractice nor ordinary negligence.
A patient who thinks a co-patient is Jesus could find a way to have sex with him unless they were locked away from each other. (But it would have been medical malpractice if the psychiatrist had sex with her because she thought he were God!)
And if she already had religious delusions when she was admitted, why would having intercourse with Jesus be blamed on her medications and not on her pre-existing condition?
Does that mean that there is no responsible party? “Jesus” was only an alcoholic drying out, presumably not under the influence. If a sober man has sex with a delusional woman on psychiatric medication – even if she consents – then he is guilty of rape the same as a man who passes out after drinking too much.
And for gosh sakes, she only had sex, consensual or not. If she had contracted AIDS maybe there would have been something to be concerned about, but really??? Most of us have had sex which we regretted but we all get over it. The depths a plaintiff attorney can sink never cease to amaze me.
Actually this case demonstrates that hospital administrators will sink lower. Instead of taking it on the chin like a man and finding a lawyer clever enough to win, they dumped it on a staff physician whom they know did not fall below the standard of care.
Shame. And if the judge ruled it ordinary negligence, no doubt they would make every argument I made above to defend themselves. To transfer a frivolous from oneself onto another innocent is the height of immorality.
And they are a deeper pocket than the individual doctor. Their claim isn’t reported on a national database. Rising premiums for an individual doctor are difficult for him or her. The lesson is that all practicing physicians must expect that the hospital isn’t our friend.
What else could the hospital or the psychiatrist have done? She was supposed to have been checked on every fifteen minutes, and the oral sex occurred immediately after leaving the psychiatrist’s office. Medicating such patients is normal. Would anyone argue that all medicated psych patients must be locked away in solitary confinement?
This just sounds to me like a case of bad lawyers, an incompetent judge, and an evil hospital.
Steven Teitelbaum MD
Dr. Teitelbaum is correct. A key to understanding what he means is recognizing the “contractual issue of attorney representation.” This contract starts when a client pays (or agrees to directly pay) an attorney to represent them. So to understand if you are being represented or not, you need to also understand who is directly paying the attorney.
Thus, even though you work for the hospital, since you are not paying the attorney directly, the attorney is not contractually obligated to represent ONLY you. The same is true when you pay a professional liability insurance company. The company is paying the attorney directly. You are not.
Professional liability companies want you to believe they represent you. This is not correct. Unless you pay an attorney directly yourself, you are not being represented. This is a conflict of interest that the legal profession, liability carriers, hospitals and various institutions would prefer that you “push” to the background. The actual contract of representation is the one you get from the liability carrier, not their attorneys.
You do have an option. You can hire and directly pay your own attorney and then you will be represented. A key to this representation is to always make sure that you actually pay your attorney after you hire him/her. Financial transaction is a part of this contractual agreement. The actual amount of money you pay is not material to this contract. The fact that you paid it is. If it were me, I’d write a check to my own attorney the very first time I talked to them and make sure he/she sees it, by handing it directly to the attorney.
I assume that the doctors who worked for the hospital (in the above case) had conferences with hospital attorneys. The doctors were under the obviously mistaken impression that they were being represented. Ultimately, according to my understanding, the entire case was dumped into their laps, or an attempt is being made to do this.
No surprise. As the hospital employee or user of the hospital facilities, you are not being represented by their attorneys. You did not pay them directly.
Dr. Teitelbaum reminds us that you need to look after yourself. There is never an advance guarantee of an outcome of any case. But if you had your attorney present at the conferences you had with hospital attorneys, your own attorney would put the hospital on notice that you are represented. It’s a huge difference. Hospital attorneys will not be happy you have counsel. It will color the entire tenure of their relationship with you, and that’s a good thing.
A very difficult part of this equation is that when you disclose confidential information to an attorney who does not represent you, you may not be covered under state bar attorney/client privilege. Your own attorney will advise you on exactly what you should disclose to hospital counsel. That’s what you are paying for. Before you take off all of your clothes and walk naked through a well-lit passageway, you need to know who is looking at you.
You also need to be prepared to look for another job. Probably you should start looking the day of your first meeting with hospital counsel on your case. You can and should expect the hospital to throw you under the bus, if necessary. Their attorneys may pat you on the shoulder and give you emotional sustenance. It counts for nothing.
Michael M. Rosenblatt, DPM