Professional vs. Ordinary Negligence in the Health Care Setting

• A patient falls on a wet floor in a hospital emergency room.
• A patient is sexually assaulted by a hospital employee.
• An unattended diabetic patient falls off an examination table.
• An unattended paraplegic patient falls off an x-ray table.
• A stroke victim falls out of bed while being transported.

Do the above factual scenarios sound like professional negligence or simple garden-variety negligence? In many jurisdictions, the answer has not been entirely clear. This often leaves litigants and their attorneys to play a guessing game as to how the case will be categorized, with legal consequences for coming to the wrong conclusion.

Perhaps it's time for a change.

Professional Negligence, or No?

Generally speaking, the distinguishing characteristics of professional or, more specifically, medical, negligence are that it involves a departure from accepted standards of medical practice; that it raises questions of medical judgment beyond the realm of common knowledge and experience; and that expert testimony to establish the standard of care is therefore required in most cases. Where a negligence claim is premised on a patient-health care provider relationship, and implicates issues of professional medical judgment, the claim is one of professional, rather than ordinary, negligence.

Further, from a procedural standpoint, professional negligence cases in Pennsylvania, where I practice, require a certificate of merit ' certification by counsel for the plaintiff that a licensed professional in the applicable field has reviewed the matter and determined that there is a reasonable probability that negligence has occurred. Many other jurisdictions have similar requirements.

However, to this point, the precise line of where ordinary negligence ends and professional negligence begins has remained rather murky.

The factual scenarios mentioned previously are taken from actual Pennsylvania cases where there were disputes between the parties as to whether the facts, as alleged, amounted to professional or ordinary negligence. For example, the stroke victim who fell out of bed while being transported was the subject of a case recently considered by the Pennsylvania Supreme Court in Ditch v. Waynesboro Hospital, 2011 Pa. LEXIS 99 (Jan. 18, 2011). The Ditch majority affirmed the lower court's decision that the facts established a case of professional negligence. However, in a dissent authored by Justice Debra McCloskey Todd, it was suggested not only that the case, in reality, was one of ordinary rather than professional negligence, but that the court should have taken the opportunity to confront and resolve the question of how to define the distinction between ordinary negligence and professional negligence in the health care setting.

Professional vs. Ordinary Negligence

Consider the basic facts in Ditch: A stroke victim fell from her hospital bed while being transported. Was this a case of professional negligence, premised on matters that involve medical judgment beyond the realm of common knowledge and experience? Or, was this a case of common negligence, raising issues that do not necessarily involve specialized medical training? Intelligent minds could no doubt come out on either side of this issue.

Pennsylvania's trial and lower appellate courts have addressed the distinction between professional and ordinary negligence in the medical setting numerous times and have come to somewhat differing results. Of the factual scenarios listed at the beginning of this article, the first two were found to constitute ordinary negligence. The last three, including the Ditch case, were found to constitute professional negligence. More than one of these cases had dissenting opinions in which the dissenters argued that the court should have come to the opposite conclusion on the question of professional vs. ordinary negligence.

As Justice Todd set forth in her dissenting opinion in Ditch, an examination of other jurisdictions demonstrates similar differences of opinion. By way of example: In New York, a case involving a patient falling off an examination table while giving a blood sample was found to be ordinary negligence. Rogers v. Schuyler, 158 A.D.2d 318 (N.Y. App. Div. 1990. Conversely, a case involving a patient falling out of bed (Santana v. St. Vincent Catholic Med. Ctr. of New York, 65 A.D.3d 1119 (N.Y. App. Div. 2009)), and another case involving a patient who sustained an ankle fracture while getting off an examination table (Stanley v. Lebetkin, 123 A.D.2d 854 (N.Y. App. Div. 1986)), were both found to constitute professional negligence. In Florida, a case where a nurse spilled hot tea on a patient was found to be ordinary negligence (Quintanilla v. Coral Gables Hosp., 941 So.2d 468 (Fla. Dist. Ct. App. 2006)), but another involving a patient falling off a stretcher was deemed a claim involving professional negligence (Indian River Mem. Hosp., Inc. v. Browne, 44 So.3d 237 (Fla. Dist. Ct. App. 2010)). In Georgia, a suit concerning a patient injured on a lamp from which a heat shield had been removed was found to be ordinary negligence (Jones v. Bates, 403 S.E.2d 804 (Ga. 1991)), while a complaint involving a patient who fell out of bed because a side rail was down was treated as a professional negligence claim (Robinson v. Med. Ctr. of Cen. Georgia, 456 S.E.2d 254 (Ga. Ct. App. 1995)). And, in California, a case involving failure to restrain a patient on a gurney was found to be ordinary negligence (Gopaul v. Herrick Mem. Hosp., 38 Cal App.3d 1002 (Cal Ct. App. 1974)), but one that dealt with failure to raise bed rails was found to involve professional negligence (Murillo v. Good Samaritan Hosp., 99 Cal.App.3d 50 (Cal. Ct. App. 1979)).

Important Consequences

This dissension concerning the categorization of negligence in the health care setting is not insignificant. In addition to implicating the certificate of merit requirement in Pennsylvania, and similar procedural hurdles in other jurisdictions ' the lack of which can result in a case's dismissal ' professional liability actions generally require expert testimony to prove the standard of care and deviation therefrom. Arranging and paying for expert testimony when it is not required is a time-consuming and expensive waste.

The determination of whether a case is classified as ordinary or professional negligence can impact what insurance coverage applies. In Pennsylvania, the Medical Care Availability and Reduction of Error Act includes a state fund that provides excess insurance coverage in medical professional liability actions for participating health care providers.

Further, in some venues, whether the case is professional or ordinary negligence determines or influences scheduling deadlines and which procedural rules apply.

Next month we will discuss ideas for changes that could help litigants and their counsel determine if theirs is an ordinary or professional negligence case.

Michael C. Ksiazek is an attorney at Philadelphia's Goldfein & Joseph, P.C.

• A patient falls on a wet floor in a hospital emergency room.
• A patient is sexually assaulted by a hospital employee.
• An unattended diabetic patient falls off an examination table.
• An unattended paraplegic patient falls off an x-ray table.
• A stroke victim falls out of bed while being transported.

Do the above factual scenarios sound like professional negligence or simple garden-variety negligence? In many jurisdictions, the answer has not been entirely clear. This often leaves litigants and their attorneys to play a guessing game as to how the case will be categorized, with legal consequences for coming to the wrong conclusion.

Perhaps it's time for a change.

Professional Negligence, or No?

Generally speaking, the distinguishing characteristics of professional or, more specifically, medical, negligence are that it involves a departure from accepted standards of medical practice; that it raises questions of medical judgment beyond the realm of common knowledge and experience; and that expert testimony to establish the standard of care is therefore required in most cases. Where a negligence claim is premised on a patient-health care provider relationship, and implicates issues of professional medical judgment, the claim is one of professional, rather than ordinary, negligence.

Further, from a procedural standpoint, professional negligence cases in Pennsylvania, where I practice, require a certificate of merit ' certification by counsel for the plaintiff that a licensed professional in the applicable field has reviewed the matter and determined that there is a reasonable probability that negligence has occurred. Many other jurisdictions have similar requirements.

However, to this point, the precise line of where ordinary negligence ends and professional negligence begins has remained rather murky.

The factual scenarios mentioned previously are taken from actual Pennsylvania cases where there were disputes between the parties as to whether the facts, as alleged, amounted to professional or ordinary negligence. For example, the stroke victim who fell out of bed while being transported was the subject of a case recently considered by the Pennsylvania Supreme Court in Ditch v. Waynesboro Hospital, 2011 Pa. LEXIS 99 (Jan. 18, 2011). The Ditch majority affirmed the lower court's decision that the facts established a case of professional negligence. However, in a dissent authored by Justice Debra McCloskey Todd, it was suggested not only that the case, in reality, was one of ordinary rather than professional negligence, but that the court should have taken the opportunity to confront and resolve the question of how to define the distinction between ordinary negligence and professional negligence in the health care setting.

Professional vs. Ordinary Negligence

Consider the basic facts in Ditch: A stroke victim fell from her hospital bed while being transported. Was this a case of professional negligence, premised on matters that involve medical judgment beyond the realm of common knowledge and experience? Or, was this a case of common negligence, raising issues that do not necessarily involve specialized medical training? Intelligent minds could no doubt come out on either side of this issue.

Pennsylvania's trial and lower appellate courts have addressed the distinction between professional and ordinary negligence in the medical setting numerous times and have come to somewhat differing results. Of the factual scenarios listed at the beginning of this article, the first two were found to constitute ordinary negligence. The last three, including the Ditch case, were found to constitute professional negligence. More than one of these cases had dissenting opinions in which the dissenters argued that the court should have come to the opposite conclusion on the question of professional vs. ordinary negligence.

As Justice Todd set forth in her dissenting opinion in Ditch, an examination of other jurisdictions demonstrates similar differences of opinion. By way of example: In New York, a case involving a patient falling off an examination table while giving a blood sample was found to be ordinary negligence. Rogers v. Schuyler , 158 A.D.2d 318 (N.Y. App. Div. 1990. Conversely, a case involving a patient falling out of bed ( Santana v. St. Vincent Catholic Med. Ctr. of New York , 65 A.D.3d 1119 (N.Y. App. Div. 2009)), and another case involving a patient who sustained an ankle fracture while getting off an examination table ( Stanley v. Lebetkin , 123 A.D.2d 854 (N.Y. App. Div. 1986)), were both found to constitute professional negligence. In Florida, a case where a nurse spilled hot tea on a patient was found to be ordinary negligence ( Quintanilla v. Coral Gables Hosp. , 941 So.2d 468 (Fla. Dist. Ct. App. 2006)), but another involving a patient falling off a stretcher was deemed a claim involving professional negligence ( Indian River Mem. Hosp., Inc. v. Browne , 44 So.3d 237 (Fla. Dist. Ct. App. 2010)). In Georgia, a suit concerning a patient injured on a lamp from which a heat shield had been removed was found to be ordinary negligence ( Jones v. Bates , 403 S.E.2d 804 (Ga. 1991)), while a complaint involving a patient who fell out of bed because a side rail was down was treated as a professional negligence claim ( Robinson v. Med. Ctr. of Cen. Georgia , 456 S.E.2d 254 (Ga. Ct. App. 1995)). And, in California, a case involving failure to restrain a patient on a gurney was found to be ordinary negligence ( Gopaul v. Herrick Mem. Hosp. , 38 Cal App.3d 1002 (Cal Ct. App. 1974)), but one that dealt with failure to raise bed rails was found to involve professional negligence ( Murillo v. Good Samaritan Hosp. , 99 Cal.App.3d 50 (Cal. Ct. App. 1979)).

Important Consequences

This dissension concerning the categorization of negligence in the health care setting is not insignificant. In addition to implicating the certificate of merit requirement in Pennsylvania, and similar procedural hurdles in other jurisdictions ' the lack of which can result in a case's dismissal ' professional liability actions generally require expert testimony to prove the standard of care and deviation therefrom. Arranging and paying for expert testimony when it is not required is a time-consuming and expensive waste.

The determination of whether a case is classified as ordinary or professional negligence can impact what insurance coverage applies. In Pennsylvania, the Medical Care Availability and Reduction of Error Act includes a state fund that provides excess insurance coverage in medical professional liability actions for participating health care providers.

Further, in some venues, whether the case is professional or ordinary negligence determines or influences scheduling deadlines and which procedural rules apply.

Next month we will discuss ideas for changes that could help litigants and their counsel determine if theirs is an ordinary or professional negligence case.

Michael C. Ksiazek is an attorney at Philadelphia's Goldfein & Joseph, P.C.