Tort Reform

Dr. West admitted Johannesen to Salem Hospital on Nov. 8, 1999. Although there was evidence that Johannesen was suffering from severe pregnancy-induced hypertension, West transferred her from the labor-and-delivery unit to the postpartum unit, where patients are not monitored as vigilantly. Johannesen's condition worsened and her high blood pressure began to be accompanied by headaches, visual disturbances, and epigastric pain, all symptoms that can indicate organ injury. Despite these warning signs, West prescribed only painkillers and antacids, and did nothing to decrease Johannesen's blood pressure.

On Nov. 10, West induced labor and attempted to assist Johannesen in a vaginal delivery. He did not tell her that she was at risk for a fatal brain hemorrhage during the 6 to 8 hours that he planned to allow for labor. When Johannesen was transferred back to the labor-and-delivery unit at 5:35 a.m., she had an intense headache, epigastric pain and such severe visual disturbances that she was unable to see. Johannesen was in labor all morning under the care of West and an anesthesiologist. The attempted vaginal delivery was unsuccessful and, at 12:50 p.m., Johannesen was transferred to the operating room for a caesarean section. Before the operation began, Johannesen displayed the definitional criteria for a coma. Despite this, Dr. West never sought or obtained a neurological consultation on the case. When Johannesen's husband asked why she was sleeping, West told him that she was tired. Johannesen never regained consciousness and, on Nov. 17, 1999, died from the effects of a brain hemorrhage.

Johannesen's husband brought suit on behalf of her estate. West and the anesthesiology group settled out of court, leaving the hospital as the only defendant.

Plaintiff moved to add a claim for punitive damages against the hospital. The basis for the punitive damages claim was that the hospital nursing staff had failed to object to the doctor's orders, failed to request blood pressure or anti-seizure medication, and failed to insist on a prompt delivery. In effect, plaintiff argued that the nurses did not properly use the chain of command to question the doctor's treatment decisions and were deficient in not advocating for the patient's safety. The trial court denied the plaintiff's motion to add a claim for punitive damages. Plaintiff then applied for a writ of mandamus, which the Oregon Supreme Court issued in this case.

The Law in Oregon

Under Oregon law, punitive damages may not be pleaded without leave of the court. Oregon Revised Statute 31.725 (formerly O.R.S. 18.535). Additionally, Oregon Revised Statute 31.740 (formerly O.R.S. 18.550), which was amended in an effort at tort reform, provides in part that punitive damages shall not be awarded against a health practitioner if the health practitioner is licensed, registered or certified as a nurse and was “engaged in conduct regulated by the license, registration or certificate issued by the appropriate governing body and was acting within the scope of practice for which the license, registration or certificate was issued and without malice.” In Oregon, “malice” is not a defined term within the punitive damages statutes, but the Oregon Supreme Court has concluded that malice means conduct “committed with a bad motive or so recklessly as to be in disregard of social obligations, or an act wantonly, maliciously or wickedly done.” Johannesen, 82 P.3d at 141-142, quoting Linkhart v. Savely, 190 Or. 484, 505-06, 227 P.2d. 187, 197 (1951).

In support of his motion to add a claim for punitive damages, the plaintiff in Johannesen relied on the affidavit of his expert, Dr. Mahlmeister, R.N., PhD. Mahlmeister maintained that the Salem Hospital nurses “acted with aggravated disregard for their professional duties” by “failing to object to West's orders, failing to request blood pressure or anti-seizure medications, and failing to insist on a prompt delivery.” Johannesen, 82 P.3d at 142. According to Mahlmeister, the nurses “showed outrageous indifference” to their patient's health and safety.

The trial court had faulted the affidavit, stating that Mahlmeister was not qualified to offer an opinion about the nurses' state of mind. The Supreme Court of Oregon found this to be an incorrect characterization of the affidavit: The affidavit contained explanations of the care that Johannesen allegedly should have received and an expert assessment of the care that she did receive. The Supreme Court of Oregon determined that Mahlmeister's affidavit was sufficient to enable a jury to “infer a reckless indifference to Johannesen's health,” and “permit a finding of malice.” Accordingly, the court issued a writ of mandamus and directed the trial court to enter an order allowing plaintiff to amend his complaint to add a claim for punitive damages.

What It Means

The ramifications of the Johannesen decision are that plaintiffs may have potential punitive damage claims in Oregon every time they can locate an expert who will testify by way of an affidavit that they believe the conduct by the hospital staff was “recklessly indifferent” to the health consequences to the patient. Clearly, the Johannesen decision greatly weakens, if not destroys, the protection against punitive damage claims that ORS 31.740 originally was thought to provide. And while the decision applied to a hospital as principle to its tortfeaser employees, the decision also appears to open the door to punitive damage claims against other health care providers, not just hospitals.

As a result of punitive damage claims being added, there will be a broader range of evidence that is discoverable and admissible at trial, more prejudicial arguments that can be made to juries, and a potential for much greater damage exposure for both caregivers and their insurers. In the world of rising health care and professional liability insurance costs, the Johannesen decision is problematic.

There are lessons to be learned here for health care practitioners in the State of Oregon, and possibly the rest of the nation. When advising Oregon health care provider clients post-Johannesen, it is critical to discuss the kind of conduct that may lead to punitive damage claims. Specifically, nurses and other hospital health care providers should be advised to go up the chain of command if they notice a patient receiving questionable medical treatment. Arguably, such action could ultimately create tension between physicians and nurses, because nurses suddenly are placed in the position of second-guessing decisions made by physicians. However, as Johannesen indicates, complacency on the part of the nursing staff could result in punitive damage exposure, both for themselves and for the hospitals that employ them.

Documenting concerns regarding patient care is another thorny issue raised by Johannesen. Although health care providers are trained to document everything they do, it may not be the best practice to document, in the patient record, some steps taken to avoid liability under Johannesen. In certain circumstances, it may be necessary to involve risk management and/or the legal department immediately. After all, how will it look to patients and their attorneys reading through patient records when they see that various members of the attending staff thought a different course of treatment should have been followed rather than the one that was ultimately chosen? The fact that reasonable minds can differ could become problematic when a written record is kept of all disputes.

On a broader scale, as the consenting opinion in Johannesen points out, the legislative intent in enacting tort-reform measure 31.740 was completely thwarted by the inclusion of the “malice” language. The term “malice,” as defined by the Johannesen decision, encompasses the different kinds of wrongful conduct that traditionally have justified a jury awarding punitive damages, whether that conduct was intentionally wrongful, wicked, wanton, or recklessly in disregard of social obligations. “By using the word “malice,” then,” wrote consenting Justice Balmer, “the legislature essentially stated a tautology: No punitive damages could be recovered unless punitive damages could be recovered.”

Conclusion

In summary, Johannesen v. Salem Hospital raises a number of issues that could affect the daily practice of nurses and other health care providers in Oregon, but could serve as a lesson for practitioners, attorneys and legislators in other states. Avoiding exposure to punitive damage awards was not a concern of risk managers and health care lawyers pre-Johannesen, because of the protection afforded by Oregon Revised Statute 31.740. Now, however, the protection has eroded and the door is open for punitive damages in almost every medical malpractice suit. Those working for imposition of tort-reform measures in other jurisdictions should keep in mind the hole exposed in Oregon's law by Johannesen, and proceed accordingly.

In recent years, many states have enacted punitive damage limitations on medical malpractice actions to help doctors, nurses and other health care workers stay in business and to stem the tide of medical insurer defections from high-risk states to states offering lower exposure to loss. However, depending on the way the punitive damage cap provisions are written, states may or may not be affording health care workers and insurers the protections they intended to give. Case in point: Johannesen v. Salem Hospital, 336 Or. 211, 82 P.3d 139 (2003). In this case, the Oregon Supreme Court issued a decision that broadens the scope of punitive damages claims against health care providers in Oregon beyond those that the legislature presumably intended.

Johannesen v. Salem Hospital

Plaintiff'S decedent Salina Johannesen received prenatal care from Dr. David West. During her pregnancy, Johannesen developed pre-eclampsia/pregnancy-induced hypertension. The only treatment for severe pre-eclampsia is delivery of the baby.

Dr. West admitted Johannesen to Salem Hospital on Nov. 8, 1999. Although there was evidence that Johannesen was suffering from severe pregnancy-induced hypertension, West transferred her from the labor-and-delivery unit to the postpartum unit, where patients are not monitored as vigilantly. Johannesen's condition worsened and her high blood pressure began to be accompanied by headaches, visual disturbances, and epigastric pain, all symptoms that can indicate organ injury. Despite these warning signs, West prescribed only painkillers and antacids, and did nothing to decrease Johannesen's blood pressure.

On Nov. 10, West induced labor and attempted to assist Johannesen in a vaginal delivery. He did not tell her that she was at risk for a fatal brain hemorrhage during the 6 to 8 hours that he planned to allow for labor. When Johannesen was transferred back to the labor-and-delivery unit at 5:35 a.m., she had an intense headache, epigastric pain and such severe visual disturbances that she was unable to see. Johannesen was in labor all morning under the care of West and an anesthesiologist. The attempted vaginal delivery was unsuccessful and, at 12:50 p.m., Johannesen was transferred to the operating room for a caesarean section. Before the operation began, Johannesen displayed the definitional criteria for a coma. Despite this, Dr. West never sought or obtained a neurological consultation on the case. When Johannesen's husband asked why she was sleeping, West told him that she was tired. Johannesen never regained consciousness and, on Nov. 17, 1999, died from the effects of a brain hemorrhage.

Johannesen's husband brought suit on behalf of her estate. West and the anesthesiology group settled out of court, leaving the hospital as the only defendant.

Plaintiff moved to add a claim for punitive damages against the hospital. The basis for the punitive damages claim was that the hospital nursing staff had failed to object to the doctor's orders, failed to request blood pressure or anti-seizure medication, and failed to insist on a prompt delivery. In effect, plaintiff argued that the nurses did not properly use the chain of command to question the doctor's treatment decisions and were deficient in not advocating for the patient's safety. The trial court denied the plaintiff's motion to add a claim for punitive damages. Plaintiff then applied for a writ of mandamus, which the Oregon Supreme Court issued in this case.

The Law in Oregon

Under Oregon law, punitive damages may not be pleaded without leave of the court. Oregon Revised Statute 31.725 (formerly O.R.S. 18.535). Additionally, Oregon Revised Statute 31.740 (formerly O.R.S. 18.550), which was amended in an effort at tort reform, provides in part that punitive damages shall not be awarded against a health practitioner if the health practitioner is licensed, registered or certified as a nurse and was “engaged in conduct regulated by the license, registration or certificate issued by the appropriate governing body and was acting within the scope of practice for which the license, registration or certificate was issued and without malice.” In Oregon, “malice” is not a defined term within the punitive damages statutes, but the Oregon Supreme Court has concluded that malice means conduct “committed with a bad motive or so recklessly as to be in disregard of social obligations, or an act wantonly, maliciously or wickedly done.” Johannesen, 82 P.3d at 141-142, quoting Linkhart v. Savely, 190 Or. 484, 505-06, 227 P.2d. 187, 197 (1951).

In support of his motion to add a claim for punitive damages, the plaintiff in Johannesen relied on the affidavit of his expert, Dr. Mahlmeister, R.N., PhD. Mahlmeister maintained that the Salem Hospital nurses “acted with aggravated disregard for their professional duties” by “failing to object to West's orders, failing to request blood pressure or anti-seizure medications, and failing to insist on a prompt delivery.” Johannesen, 82 P.3d at 142. According to Mahlmeister, the nurses “showed outrageous indifference” to their patient's health and safety.

The trial court had faulted the affidavit, stating that Mahlmeister was not qualified to offer an opinion about the nurses' state of mind. The Supreme Court of Oregon found this to be an incorrect characterization of the affidavit: The affidavit contained explanations of the care that Johannesen allegedly should have received and an expert assessment of the care that she did receive. The Supreme Court of Oregon determined that Mahlmeister's affidavit was sufficient to enable a jury to “infer a reckless indifference to Johannesen's health,” and “permit a finding of malice.” Accordingly, the court issued a writ of mandamus and directed the trial court to enter an order allowing plaintiff to amend his complaint to add a claim for punitive damages.

What It Means

The ramifications of the Johannesen decision are that plaintiffs may have potential punitive damage claims in Oregon every time they can locate an expert who will testify by way of an affidavit that they believe the conduct by the hospital staff was “recklessly indifferent” to the health consequences to the patient. Clearly, the Johannesen decision greatly weakens, if not destroys, the protection against punitive damage claims that ORS 31.740 originally was thought to provide. And while the decision applied to a hospital as principle to its tortfeaser employees, the decision also appears to open the door to punitive damage claims against other health care providers, not just hospitals.

As a result of punitive damage claims being added, there will be a broader range of evidence that is discoverable and admissible at trial, more prejudicial arguments that can be made to juries, and a potential for much greater damage exposure for both caregivers and their insurers. In the world of rising health care and professional liability insurance costs, the Johannesen decision is problematic.

There are lessons to be learned here for health care practitioners in the State of Oregon, and possibly the rest of the nation. When advising Oregon health care provider clients post-Johannesen, it is critical to discuss the kind of conduct that may lead to punitive damage claims. Specifically, nurses and other hospital health care providers should be advised to go up the chain of command if they notice a patient receiving questionable medical treatment. Arguably, such action could ultimately create tension between physicians and nurses, because nurses suddenly are placed in the position of second-guessing decisions made by physicians. However, as Johannesen indicates, complacency on the part of the nursing staff could result in punitive damage exposure, both for themselves and for the hospitals that employ them.

Documenting concerns regarding patient care is another thorny issue raised by Johannesen. Although health care providers are trained to document everything they do, it may not be the best practice to document, in the patient record, some steps taken to avoid liability under Johannesen. In certain circumstances, it may be necessary to involve risk management and/or the legal department immediately. After all, how will it look to patients and their attorneys reading through patient records when they see that various members of the attending staff thought a different course of treatment should have been followed rather than the one that was ultimately chosen? The fact that reasonable minds can differ could become problematic when a written record is kept of all disputes.

On a broader scale, as the consenting opinion in Johannesen points out, the legislative intent in enacting tort-reform measure 31.740 was completely thwarted by the inclusion of the “malice” language. The term “malice,” as defined by the Johannesen decision, encompasses the different kinds of wrongful conduct that traditionally have justified a jury awarding punitive damages, whether that conduct was intentionally wrongful, wicked, wanton, or recklessly in disregard of social obligations. “By using the word “malice,” then,” wrote consenting Justice Balmer, “the legislature essentially stated a tautology: No punitive damages could be recovered unless punitive damages could be recovered.”

Conclusion

In summary, Johannesen v. Salem Hospital raises a number of issues that could affect the daily practice of nurses and other health care providers in Oregon, but could serve as a lesson for practitioners, attorneys and legislators in other states. Avoiding exposure to punitive damage awards was not a concern of risk managers and health care lawyers pre-Johannesen, because of the protection afforded by Oregon Revised Statute 31.740. Now, however, the protection has eroded and the door is open for punitive damages in almost every medical malpractice suit. Those working for imposition of tort-reform measures in other jurisdictions should keep in mind the hole exposed in Oregon's law by Johannesen, and proceed accordingly.