Verdicts

With EMTALA Not Implicated, No Basis for Federal Jurisdiction

The U.S. District Court for the Western District of Washington dismissed a medical malpractice suit for lack of subject matter jurisdiction because, inter alia, the case was based on state-law tort claims, not on the federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. ' 1395dd. Jason v. Group Health Cooperative, 2012 U.S. Dist. Lexis 4454 (W.D.Wash. 1/13/12).

The plaintiff sought emergency treatment for what he thought was a heart attack from the defendant hospital on two occasions. He alleged that one physician and his homecare nurse requested that he be administered a Computed Tomography (CT) scan, but that two emergency physicians at the defendant hospital refused to order it. This action, plaintiff said, constituted violation of EMTALA, as it was a refusal by the defendant hospital to render emergency care to him.

The court noted that EMTALA requires only that a hospital screen incoming patients for emergent medical conditions and, if such a condition is found, that it stabilize the patient prior to transferring or discharging him. However, EMTALA does not create a national standard of care entitling the patient to particular methods of diagnosis or treatment. Here, said the court, the plaintiff “alleged the defendants refused to administer a CT scan while he was hospitalized, not that the emergency room failed to screen for emergency medical conditions. Pl.'s Compl. 3-4 [Dkt. #1]. Thus, [plaintiff's] claims that the emergency room physicians misdiagnosed his condition or disregarded their duty of care do not implicate EMTALA.” Therefore, federal question jurisdiction based on EMTALA was not present. For this and other reasons, the case was dismissed for lack of subject matter jurisdiction.

TN Statute of Repose Brings Harsh Result for Vet

U.S. Magistrate Judge Juliet Griffin has recommended that a case against the United States for rendering substandard medical care be dismissed, as the substantive law of the state in which the action accrued 'Tennessee ' must be applied, and Tennessee's statute of repose prohibits the filing of a medical malpractice action more than three years after the injury occurred, no matter when the injury was discovered. Hightower v. U.S., 2011 U.S. Dist. LEXIS 151723 (M.D. Tenn. 1/18/12).

The plaintiff received treatment for a number of reasons over an extended period at a Veteran's Hospital in Nashville, TN. He underwent abdominal surgery there in 1992 to repair a perforated hernia. Years later, he continued to suffer abdominal pain due to a hernia. In late 2008 he met with a VA patient advocate who gave him a form he could use to make a claim against the United States. This he did in 2009, claiming that his 1992 hernia was caused by the VA's improper prescription of excessive amounts of ibuprofen, and that his continuing hernia issues were the consequence of his 1992 surgery. The United States moved to dismiss, saying the plaintiff's claim was barred by Tennessee's three-year statute of repose for medical malpractice actions, as set forth in Tenn. Code Ann. ' 29-26-116. Section 29-26-116 states that, unless the plaintiff can show fraudulent concealment by the defendant, a medical malpractice action may not be brought more than three years after the date on which the negligent act or omission occurred.

Judge Griffin noted that, as the court held in Smith v. United States, 430 Fed. Appx. 246 (2001), “a statute of repose, unlike a statute of limitations, creates a substantive right to be free of liability after the specified time” and the “statute of repose is not subject to tolling and provides the applicable substantive law in the case.” Thus, as the injury occurred in 1992, the action was not filed until 2009, and the plaintiff could not establish an adequate basis for a charge of fraudulent concealment of his injuries or their cause by the defendant, his suit was barred by Tennessee's statute of repose. In recommending dismissal of the suit, Judge Griffin stated: “Although the Court sympathizes with the plaintiff and understands why he would be frustrated with his current medical situation, the Court nonetheless finds merit to the United States' argument that the statute of repose requires dismissal of the plaintiff's lawsuit. The rule applies despite the harsh consequences that result to the plaintiff.”

Regulation's Violation Might Have Been Relevant to Jury's Decision

The Appeals Court of Massachusetts has reversed a jury's defense verdict because evidence indicated the defendants may have violated a state medical-protocol regulation, and the trial judge erroneously declined to instruct the jury as to the regulation's significance to the case. Campbell v. Cape & Islands Healthcare Services Inc., 2012 Mass. App. LEXIS 83 (2/7/12).

The plaintiff patient underwent a three-hour glucose tolerance test at the defendant clinic. This involved five blood draws over a three-hour period, the first on an empty stomach and the others at intervals following ingestion of a glucose drink. When he entered the clinic to take the test he was walking unsteadily, was pale and said that he was tired. His condition worsened as he was taking the test: His coordination suffered, he was sweating and he became weak enough that the staff moved him to a recliner and brought water to him. When the patient left the clinic he got into a one-car accident in which he was injured. He and his wife sued, among others, the clinic and the doctor in charge.

Plaintiffs presented evidence that the defendants had not taken the steps necessary to identify and deal with the patient's alleged hypoglycemia. Several witnesses testified that the clinic did not have in place protocols that would have alerted them to the problems the patient was experiencing and that would have helped them deal with those problems. If true, this failure may have represented a violation of 105 Code Mass. Regs. ' 180.042 (1994). The judge admitted this regulation into evidence but refused to instruct the jury concerning the defendants' compliance with it and whether it could serve as evidence of negligence. The jury found for the defendants.

On appeal, plaintiffs contended the judge should have instructed the jury on the defendants' failure to comply with ' 180.042. Defendants countered that, as a condition for such an instruction, a witness would have had to testify specifically that the Code of Massachusetts Regulations was violated. The appeals court disagreed, finding no such requirement in the statutory or case law. It also noted that Follansbee v. Ohse, 293 Mass. 48 (1935) had established that although a violation of regulation is not conclusive on the question of negligence, it is evidence of negligence as to the consequences that the regulation was intended to prevent. As such, the fact of the regulation and its possible violation by the defendants was relevant to the jury's inquiry, and the judge should have given the instruction requested by the plaintiff. This error was not harmless, stated the appeals court, because “the jury specifically found, by special verdict, that there was no negligence. Given the weight that a jury may attach to a finding, if any, that a safety regulation was violated, we are unable to say with substantial confidence that an instruction from the judge on the relevance of such a violation would not have made a material difference to its determination of negligence; the substantial rights of the plaintiff were prejudiced.” Therefore, the appellate court reversed.

With EMTALA Not Implicated, No Basis for Federal Jurisdiction

The U.S. District Court for the Western District of Washington dismissed a medical malpractice suit for lack of subject matter jurisdiction because, inter alia, the case was based on state-law tort claims, not on the federal Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. ' 1395dd. Jason v. Group Health Cooperative, 2012 U.S. Dist. Lexis 4454 (W.D.Wash. 1/13/12).

The plaintiff sought emergency treatment for what he thought was a heart attack from the defendant hospital on two occasions. He alleged that one physician and his homecare nurse requested that he be administered a Computed Tomography (CT) scan, but that two emergency physicians at the defendant hospital refused to order it. This action, plaintiff said, constituted violation of EMTALA, as it was a refusal by the defendant hospital to render emergency care to him.

The court noted that EMTALA requires only that a hospital screen incoming patients for emergent medical conditions and, if such a condition is found, that it stabilize the patient prior to transferring or discharging him. However, EMTALA does not create a national standard of care entitling the patient to particular methods of diagnosis or treatment. Here, said the court, the plaintiff “alleged the defendants refused to administer a CT scan while he was hospitalized, not that the emergency room failed to screen for emergency medical conditions. Pl.'s Compl. 3-4 [Dkt. #1]. Thus, [plaintiff's] claims that the emergency room physicians misdiagnosed his condition or disregarded their duty of care do not implicate EMTALA.” Therefore, federal question jurisdiction based on EMTALA was not present. For this and other reasons, the case was dismissed for lack of subject matter jurisdiction.

TN Statute of Repose Brings Harsh Result for Vet

U.S. Magistrate Judge Juliet Griffin has recommended that a case against the United States for rendering substandard medical care be dismissed, as the substantive law of the state in which the action accrued 'Tennessee ' must be applied, and Tennessee's statute of repose prohibits the filing of a medical malpractice action more than three years after the injury occurred, no matter when the injury was discovered. Hightower v. U.S., 2011 U.S. Dist. LEXIS 151723 (M.D. Tenn. 1/18/12).

The plaintiff received treatment for a number of reasons over an extended period at a Veteran's Hospital in Nashville, TN. He underwent abdominal surgery there in 1992 to repair a perforated hernia. Years later, he continued to suffer abdominal pain due to a hernia. In late 2008 he met with a VA patient advocate who gave him a form he could use to make a claim against the United States. This he did in 2009, claiming that his 1992 hernia was caused by the VA's improper prescription of excessive amounts of ibuprofen, and that his continuing hernia issues were the consequence of his 1992 surgery. The United States moved to dismiss, saying the plaintiff's claim was barred by Tennessee's three-year statute of repose for medical malpractice actions, as set forth in Tenn. Code Ann. ' 29-26-116. Section 29-26-116 states that, unless the plaintiff can show fraudulent concealment by the defendant, a medical malpractice action may not be brought more than three years after the date on which the negligent act or omission occurred.

Judge Griffin noted that, as the court held in Smith v. United States , 430 Fed. Appx. 246 (2001), “a statute of repose, unlike a statute of limitations, creates a substantive right to be free of liability after the specified time” and the “statute of repose is not subject to tolling and provides the applicable substantive law in the case.” Thus, as the injury occurred in 1992, the action was not filed until 2009, and the plaintiff could not establish an adequate basis for a charge of fraudulent concealment of his injuries or their cause by the defendant, his suit was barred by Tennessee's statute of repose. In recommending dismissal of the suit, Judge Griffin stated: “Although the Court sympathizes with the plaintiff and understands why he would be frustrated with his current medical situation, the Court nonetheless finds merit to the United States' argument that the statute of repose requires dismissal of the plaintiff's lawsuit. The rule applies despite the harsh consequences that result to the plaintiff.”

Regulation's Violation Might Have Been Relevant to Jury's Decision

The Appeals Court of Massachusetts has reversed a jury's defense verdict because evidence indicated the defendants may have violated a state medical-protocol regulation, and the trial judge erroneously declined to instruct the jury as to the regulation's significance to the case. Campbell v. Cape & Islands Healthcare Services Inc., 2012 Mass. App. LEXIS 83 (2/7/12).

The plaintiff patient underwent a three-hour glucose tolerance test at the defendant clinic. This involved five blood draws over a three-hour period, the first on an empty stomach and the others at intervals following ingestion of a glucose drink. When he entered the clinic to take the test he was walking unsteadily, was pale and said that he was tired. His condition worsened as he was taking the test: His coordination suffered, he was sweating and he became weak enough that the staff moved him to a recliner and brought water to him. When the patient left the clinic he got into a one-car accident in which he was injured. He and his wife sued, among others, the clinic and the doctor in charge.

Plaintiffs presented evidence that the defendants had not taken the steps necessary to identify and deal with the patient's alleged hypoglycemia. Several witnesses testified that the clinic did not have in place protocols that would have alerted them to the problems the patient was experiencing and that would have helped them deal with those problems. If true, this failure may have represented a violation of 105 Code Mass. Regs. ' 180.042 (1994). The judge admitted this regulation into evidence but refused to instruct the jury concerning the defendants' compliance with it and whether it could serve as evidence of negligence. The jury found for the defendants.

On appeal, plaintiffs contended the judge should have instructed the jury on the defendants' failure to comply with ' 180.042. Defendants countered that, as a condition for such an instruction, a witness would have had to testify specifically that the Code of Massachusetts Regulations was violated. The appeals court disagreed, finding no such requirement in the statutory or case law. It also noted that Follansbee v. Ohse , 293 Mass. 48 (1935) had established that although a violation of regulation is not conclusive on the question of negligence, it is evidence of negligence as to the consequences that the regulation was intended to prevent. As such, the fact of the regulation and its possible violation by the defendants was relevant to the jury's inquiry, and the judge should have given the instruction requested by the plaintiff. This error was not harmless, stated the appeals court, because “the jury specifically found, by special verdict, that there was no negligence. Given the weight that a jury may attach to a finding, if any, that a safety regulation was violated, we are unable to say with substantial confidence that an instruction from the judge on the relevance of such a violation would not have made a material difference to its determination of negligence; the substantial rights of the plaintiff were prejudiced.” Therefore, the appellate court reversed.