Ordinary Negligence vs. Medical Negligence

We have seen how the characterization of a tort as either one of medical malpractice or ordinary negligence can have significant impacts on how a case progresses. Will a medical expert's opinion be needed before the case can proceed? How will the case be placed on the court's calendar? And will the professional medical insurance provider be required to defend and indemnify or should the premises liability insurer be tapped?

Time for Better Guidance

It seems unfair that there is not more consistency in the context of negligence catagorization, and that parties and their counsel are left wondering what scheme their cases fall under. Accordingly, it may be time for the establishment of a bright-line test.

The logical next question of course, is, “Where should the line be drawn?”

For some guidance, we might turn to one of the cases discussed in the first part of this article, Ditch v. Waynesboro Hospital, 2011 Pa. LEXIS 99 (Jan. 18, 2011). If states adopted Justice Debra McCloskey Todd's reasoning in her dissent in Ditch, cases that concern nonmedical, administrative, ministerial or routine services, and that do not implicate medical skills associated with specialized training, would be classified as ordinary, rather than professional, negligence.

But even this feels somewhat unsatisfying. Consider the typical hospital fall case. On its face, a patient fall might not seem to implicate medical skills and specialized training. However, in many, if not most, such cases, the fall is alleged to have been the result of a failure by the hospital to have proper orders/monitoring/safety devices in place, which were warranted due to the patient's specific medical condition. These are issues that, at least arguably, require medical assessment, medical decision-making and, in many instances, actual physician orders.

In the Ditch case, the patient had recently suffered a stroke. The plaintiff alleged that the patient's fall was caused, at least in part, by a failure to ensure that the patient was properly restrained in bed while being transported. There are at least two issues here that might implicate medical decision-making and, therefore, necessitate expert guidance, and they are related. The first: What about the patient's medical condition made some manner of restraint necessary? The second: Generally speaking, restraints require a physician order before they can be employed. If only a physician is deemed to have the training and knowledge necessary to determine when restraints are needed, then a claim of negligence in that context would seem inherently to raise questions of medical judgment beyond the realm of common knowledge and experience. The counter argument ' and the one made rather persuasively by Justice Todd in her dissent ' is essentially that, while certain allegations regarding lack of restraints may sound like professional negligence, it doesn't take a doctor to know that a patient weakened by a recent stroke should not be wheeled through the hospital without some manner of safety device or restraint in place to make sure he or she does not fall off the bed. Regardless, the hospital fall case perfectly exemplifies why the line between professional and ordinary negligence in the health care setting is so gray.

Specific Categories?

Perhaps the distinction needs to be much more fact-specific, outlining particular categories of cases that do or do not rise to the level of professional negligence. For example, cases that involve patients falling out of hospital beds (or off stretchers, or gurneys, or examination tables … ) would have a set classification ' they either are or are not professional negligence cases. Cases alleging assaults by hospital employees would have a set classification. Cases involving injuries occasioned by a condition unrelated to the patient's actual medical treatment or care ' such as a wet floor or broken table ' would have a set classification. Cases dealing with health care providers or staff performing nonmedical acts, such as bathing and feeding, would have a set classification.

Conclusion

Given time, these categories would probably develop on their own, through court precedent. But there would seem to be no reason to wait. Lawyers would no doubt have some fun trying to squeeze individual cases into one category or another. And, there is certainly no suggestion here that a more detailed classification system would alleviate the need for court guidance on the issue. But, at least there would be a more factually oriented test, as opposed to the more abstract framework that serves as the guide currently. That is just one suggestion. Maybe the solution need not be that complicated. The rule could be as simple as this: When the injury occurs in a health care setting, the case is categorized as professional negligence, regardless of the specific facts surrounding the injury. This would require a rule like that already in place in many jurisdictions, where an exception is made to the general rule that professional negligence cases require expert testimony if the negligence alleged falls within the realm of common knowledge and experience, notwithstanding the fact that it may be of a professional nature. Of course, that still leaves unaddressed the issue of when expert testimony is truly unnecessary, but one issue at a time ' The point is this: By creating a bright-line test for the distinction between ordinary and professional negligence, parties and their counsel will be better able to plan the path of a case at the beginning. And while it may be impossible to craft a definite line, at least clarifying the distinction should improve the ability of parties and counsel to predict at the outset whether a case will require expert testimony; what insurance coverage applies; whether a procedural hurdle, such as Pennsylvania's certificate of merit, is called for; and what the scheduling deadlines will be.

Ultimately, a clear set of rules might decrease the need for court involvement early on in litigation to resolve disputes as to how a case should be classified. It's time.

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

We have seen how the characterization of a tort as either one of medical malpractice or ordinary negligence can have significant impacts on how a case progresses. Will a medical expert's opinion be needed before the case can proceed? How will the case be placed on the court's calendar? And will the professional medical insurance provider be required to defend and indemnify or should the premises liability insurer be tapped?

Time for Better Guidance

It seems unfair that there is not more consistency in the context of negligence catagorization, and that parties and their counsel are left wondering what scheme their cases fall under. Accordingly, it may be time for the establishment of a bright-line test.

The logical next question of course, is, “Where should the line be drawn?”

For some guidance, we might turn to one of the cases discussed in the first part of this article, Ditch v. Waynesboro Hospital, 2011 Pa. LEXIS 99 (Jan. 18, 2011). If states adopted Justice Debra McCloskey Todd's reasoning in her dissent in Ditch, cases that concern nonmedical, administrative, ministerial or routine services, and that do not implicate medical skills associated with specialized training, would be classified as ordinary, rather than professional, negligence.

But even this feels somewhat unsatisfying. Consider the typical hospital fall case. On its face, a patient fall might not seem to implicate medical skills and specialized training. However, in many, if not most, such cases, the fall is alleged to have been the result of a failure by the hospital to have proper orders/monitoring/safety devices in place, which were warranted due to the patient's specific medical condition. These are issues that, at least arguably, require medical assessment, medical decision-making and, in many instances, actual physician orders.

In the Ditch case, the patient had recently suffered a stroke. The plaintiff alleged that the patient's fall was caused, at least in part, by a failure to ensure that the patient was properly restrained in bed while being transported. There are at least two issues here that might implicate medical decision-making and, therefore, necessitate expert guidance, and they are related. The first: What about the patient's medical condition made some manner of restraint necessary? The second: Generally speaking, restraints require a physician order before they can be employed. If only a physician is deemed to have the training and knowledge necessary to determine when restraints are needed, then a claim of negligence in that context would seem inherently to raise questions of medical judgment beyond the realm of common knowledge and experience. The counter argument ' and the one made rather persuasively by Justice Todd in her dissent ' is essentially that, while certain allegations regarding lack of restraints may sound like professional negligence, it doesn't take a doctor to know that a patient weakened by a recent stroke should not be wheeled through the hospital without some manner of safety device or restraint in place to make sure he or she does not fall off the bed. Regardless, the hospital fall case perfectly exemplifies why the line between professional and ordinary negligence in the health care setting is so gray.

Specific Categories?

Perhaps the distinction needs to be much more fact-specific, outlining particular categories of cases that do or do not rise to the level of professional negligence. For example, cases that involve patients falling out of hospital beds (or off stretchers, or gurneys, or examination tables … ) would have a set classification ' they either are or are not professional negligence cases. Cases alleging assaults by hospital employees would have a set classification. Cases involving injuries occasioned by a condition unrelated to the patient's actual medical treatment or care ' such as a wet floor or broken table ' would have a set classification. Cases dealing with health care providers or staff performing nonmedical acts, such as bathing and feeding, would have a set classification.

Conclusion

Given time, these categories would probably develop on their own, through court precedent. But there would seem to be no reason to wait. Lawyers would no doubt have some fun trying to squeeze individual cases into one category or another. And, there is certainly no suggestion here that a more detailed classification system would alleviate the need for court guidance on the issue. But, at least there would be a more factually oriented test, as opposed to the more abstract framework that serves as the guide currently. That is just one suggestion. Maybe the solution need not be that complicated. The rule could be as simple as this: When the injury occurs in a health care setting, the case is categorized as professional negligence, regardless of the specific facts surrounding the injury. This would require a rule like that already in place in many jurisdictions, where an exception is made to the general rule that professional negligence cases require expert testimony if the negligence alleged falls within the realm of common knowledge and experience, notwithstanding the fact that it may be of a professional nature. Of course, that still leaves unaddressed the issue of when expert testimony is truly unnecessary, but one issue at a time ' The point is this: By creating a bright-line test for the distinction between ordinary and professional negligence, parties and their counsel will be better able to plan the path of a case at the beginning. And while it may be impossible to craft a definite line, at least clarifying the distinction should improve the ability of parties and counsel to predict at the outset whether a case will require expert testimony; what insurance coverage applies; whether a procedural hurdle, such as Pennsylvania's certificate of merit, is called for; and what the scheduling deadlines will be.

Ultimately, a clear set of rules might decrease the need for court involvement early on in litigation to resolve disputes as to how a case should be classified. It's time.

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