Health Care Policies and Procedures As a Basis for Liability

The Majority Trend: Violations Can Bolster Expert Testimony But Do Not Establish the Standard of Care

The majority of states require expert testimony to establish a violation of the standard of care and causation in a medical malpractice lawsuit, but still allow violations of policies and procedures to be considered by the jury as evidence of negligence.

Illinois

Heastie v. Roberts, 877 N.E.2d 1064, 1088 (Ill. 2007): The plaintiff caught fire while restrained, and the hospital was found liable at trial for the injuries on the grounds that its employees violated an internal policy by failing to perform a contraband check. On appeal, the court considered whether expert testimony was necessary to establish the standard of care, or if the violation of an internal policy was sufficient. The court reaffirmed the Illinois rule that hospital customs or polices are not determinative of the standard of care, but may be considered by the jury along with information such as expert testimony, accreditation standards and community practice. Customs and policies alone, however, may be determinative of a breach of duty to the patient only with respect to administrative and managerial duties. Id. (The court ultimately upheld the trial court decision on the grounds that the policy was administrative in nature (a concept addressed in further detail below).)

Kansas

Treatser v. HealthSouth Corp., 442 F. Supp. 2d 1171, 1188-89 (D. Kan. 2006): The plaintiff, who had impaired judgment and confusion from a head trauma, fell out of his bed and brought a vicarious liability action against the hospital because he was not restrained properly. The court held that expert testimony was required because the nature and degree of restraints that would be appropriate for a brain trauma patient are not within the realm of common knowledge, and hospital policies and procedures alone did not establish the standard of care.

Kentucky

Blankenship v. Collier, 302 S.W.3d 665 (Ky. 2010): The court held that summary judgment was proper where the plaintiff failed to provide expert testimony and relied solely on a violation of the training manual to establish negligence. In referencing an earlier decision, the court reasoned, by way of example, that a phlebotomist's failure to follow his employer's training manual on taking blood could be evidence of negligence, but a medical expert was needed to substantiate the training manual.

Missouri

Luscombe v. Mo. State Bd. of Nursing, No. WD 75049, 2013 WL 68899 at *8 (Mo. Ct. App. Jan. 8, 2013): In a case brought by a nurse against the state board that revoked her license based on hospital directives and protocols she failed to follow, the court held that “the standard of care applicable to professional conduct cannot be established by a hospital's rules and regulations, and even if it could, mere violation of a hospital rule or regulation does not establish a violation of the standard of care without expert testimony regarding whether the factual explanation for the violation is outside the standard of care.”

The Liberal Minority Trend: Violations of Policies Alone May Establish Breach of Standard of Care

Few states allow policies and procedures alone to establish the standard of care or a breach thereof, under any circumstances. However, in Louisiana, the law has long been that violation of a policy alone can be evidence of a standard-of-care breach, and recent decisions indicate that the rule continues to be upheld. In Connecticut, courts adhere to the majority rule, but recent decisions indicate a willingness to adopt a more liberal construction of the rule, based on the facts of the particular case.

Louisiana

McCorkle v. Gravois, 152 So.3d 944 (La. Ct. App. 2014): The Louisiana Court of Appeals recently reaffirmed that expert medical testimony is not required to establish a breach of the standard of care where “the alleged negligence consists of violating a statute and/or the hospital's bylaws.” The Court of Appeals, in applying this rule, decided that the medical doctor's failure to instruct a patient on the use of the drug Lunesta in accordance with the manufacturer's inserts was not alone a breach of the standard of care. In so ruling, however, the court made clear that it was adhering to the long-held rule that violations of hospital bylaws were indeed sufficient to establish a violation of the standard of care.

Connecticut

DiLieto v. Cty. Obstetrics and Gynecology Grp., 998 A.2d 730 (Conn. 2010): Connecticut has long held the majority view that rules, regulations and policies do not themselves establish the standard of care. See, e.g., Doe v. Saint Francis Med. Ctr., 72 A.3d 929, 964 (Conn. 2014) (quoting Petriello v. Kalman, 576 A.2d 474 (Conn. 1990). However, the recent DiLieto decision suggests that expert testimony, under certain circumstances, may not be required to establish a standard-of-care violation.

In DiLieto, the issue before the court was whether a first-year gynecological fellow should have been permitted to perform surgery without supervision. At trial, the evidence was that the relevant procedures required the first-year fellow to be supervised during the surgery. In addition, a supervising oncologist confirmed that the first-year oncologist was not permitted to perform unsupervised surgery except in rare emergency situations. The court held that the policy and procedure, in combination with the supervising oncologists' testimony about how the policy worked, was sufficient evidence for the jury to infer a standard-of-care violation. The court was careful not to overrule the longstanding general rule, but rather, distinguished the case from Petriello.

It remains rare that violations of policies and procedures alone can establish negligence of a health-care practitioner or facility. However, it is possible that courts could begin leaning in this direction. The DiLieto decision has arguably opened the door in Connecticut for argument that, under certain circumstances, expert testimony is not required to establish a standard of care violation. This trend could continue in other states currently adhering to the majority rule. Practitioners should be aware that even if their state has long sustained the “majority rule,” certain facts and circumstances may incline the appellate court to rule that violations policies and procedures alone can establish negligence.

The Conservative Minority: Violations of Policies Are Not Relevant to Standard of Care

Even rarer than jurisdictions that hold that violations of policies or procedures are adequate evidence that the standard of care has been violated are states that hold that such violations have no relevance to liability or standard of care issues whatsoever. In fact, Michigan appears to be the only state where violations of policies and procedures are not at all admissible as evidence of a standard of care breach.

Michigan

Melick v. William Beaumont Hosp., No. 319495, 2015 WL 1739980 (Mich. Ct. App. Apr. 16, 2015): The Michigan Court of Appeals recently held that hospital policies and procedures were not even discoverable where only vicarious liability is alleged. The plaintiff alleged that a hospital was vicariously liable for the nurses it employed, and sought to compel the production of the hospital's policies and procedures. The Court of Appeals overturned the trial court's order directing production of the internal policies and procedures, and reasoned that relevant policy “does not establish the standard of care, it does not show whether the nurses' conduct in question was a breach of that standard of care, it does not demonstrate that [Plaintiff] suffered injury, or whether the nurses' breach of the standard of care was the proximate cause of that injury.”

Michigan seems to be the lone state to continue with this approach. The Melick opinion even suggests that, under certain circumstances ' such as where direct liability of a hospital is alleged ' it could be persuaded that policies and procedures are discoverable and admissible. However, for the time being, Michigan is holding to its traditional rule that internal policies and procedures cannot be admitted to show standard of care. Gallagher v. Detroit-Macomb Hosp. Assoc., 431 N.W.2d 90 (Mich. Ct. App. 1988).

In next month's issue, we will discuss other ways in which violations of policies and procedures can affect actions against medical care providers in ways beyond the establishment of the standard of care.

Neil Edwards is an attorney practicing in the Atlanta office of Carlock, Copeland & Stair, LLP. He defends physicians, nurses, medical practices and long-term care facilities in medical malpractice and other litigation. Meg Twomey is a summer associate at the firm.

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Well-crafted policies and procedures are an essential part of the operation of modern health-care facilities. They promote practice consistency and are believed to improve clinical outcomes; however, in the event of a bad outcome, policies and procedures become evidence in litigation, and “violations” frequently become the central focus of malpractice claims.

When violations of policy are brought up by claimants, they argue that the policies and procedures prove the applicable standard of care. Defendants counter that policies and procedures are “aspirational guidelines” or “best practices,” but not proof of the standard of care.

Most courts allow policies and procedures to be introduced as evidence that the jury can consider while evaluating standard of care arguments, and recent appellate decisions throughout the country trend toward allowing evidence of violations of policies and procedures as evidence of malpractice. In rare cases, a violation or deviation from written policies and procedures may be considered negligence per se, supporting a finding of liability. On the other end of the spectrum, violations of policies and procedures may be considered inadmissible in some situations. The modern trend appears to be toward the middle of these extremes, where evidence of “violations” of policies and procedures is admissible, but does not alone establish a breach of the standard of care. In this article, we look at the different approaches across the country.

The Majority Trend: Violations Can Bolster Expert Testimony But Do Not Establish the Standard of Care

The majority of states require expert testimony to establish a violation of the standard of care and causation in a medical malpractice lawsuit, but still allow violations of policies and procedures to be considered by the jury as evidence of negligence.

Illinois

Heastie v. Roberts , 877 N.E.2d 1064, 1088 (Ill. 2007): The plaintiff caught fire while restrained, and the hospital was found liable at trial for the injuries on the grounds that its employees violated an internal policy by failing to perform a contraband check. On appeal, the court considered whether expert testimony was necessary to establish the standard of care, or if the violation of an internal policy was sufficient. The court reaffirmed the Illinois rule that hospital customs or polices are not determinative of the standard of care, but may be considered by the jury along with information such as expert testimony, accreditation standards and community practice. Customs and policies alone, however, may be determinative of a breach of duty to the patient only with respect to administrative and managerial duties. Id. (The court ultimately upheld the trial court decision on the grounds that the policy was administrative in nature (a concept addressed in further detail below).)

Kansas

Treatser v. HealthSouth Corp. , 442 F. Supp. 2d 1171, 1188-89 (D. Kan. 2006): The plaintiff, who had impaired judgment and confusion from a head trauma, fell out of his bed and brought a vicarious liability action against the hospital because he was not restrained properly. The court held that expert testimony was required because the nature and degree of restraints that would be appropriate for a brain trauma patient are not within the realm of common knowledge, and hospital policies and procedures alone did not establish the standard of care.

Kentucky

Blankenship v. Collier , 302 S.W.3d 665 (Ky. 2010): The court held that summary judgment was proper where the plaintiff failed to provide expert testimony and relied solely on a violation of the training manual to establish negligence. In referencing an earlier decision, the court reasoned, by way of example, that a phlebotomist's failure to follow his employer's training manual on taking blood could be evidence of negligence, but a medical expert was needed to substantiate the training manual.

Missouri

Luscombe v. Mo. State Bd. of Nursing, No. WD 75049, 2013 WL 68899 at *8 (Mo. Ct. App. Jan. 8, 2013): In a case brought by a nurse against the state board that revoked her license based on hospital directives and protocols she failed to follow, the court held that “the standard of care applicable to professional conduct cannot be established by a hospital's rules and regulations, and even if it could, mere violation of a hospital rule or regulation does not establish a violation of the standard of care without expert testimony regarding whether the factual explanation for the violation is outside the standard of care.”

The Liberal Minority Trend: Violations of Policies Alone May Establish Breach of Standard of Care

Few states allow policies and procedures alone to establish the standard of care or a breach thereof, under any circumstances. However, in Louisiana, the law has long been that violation of a policy alone can be evidence of a standard-of-care breach, and recent decisions indicate that the rule continues to be upheld. In Connecticut, courts adhere to the majority rule, but recent decisions indicate a willingness to adopt a more liberal construction of the rule, based on the facts of the particular case.

Louisiana

McCorkle v. Gravois , 152 So.3d 944 (La. Ct. App. 2014): The Louisiana Court of Appeals recently reaffirmed that expert medical testimony is not required to establish a breach of the standard of care where “the alleged negligence consists of violating a statute and/or the hospital's bylaws.” The Court of Appeals, in applying this rule, decided that the medical doctor's failure to instruct a patient on the use of the drug Lunesta in accordance with the manufacturer's inserts was not alone a breach of the standard of care. In so ruling, however, the court made clear that it was adhering to the long-held rule that violations of hospital bylaws were indeed sufficient to establish a violation of the standard of care.

Connecticut

DiLieto v. Cty. Obstetrics and Gynecology Grp ., 998 A.2d 730 (Conn. 2010): Connecticut has long held the majority view that rules, regulations and policies do not themselves establish the standard of care. See, e.g., Doe v. Saint Francis Med. Ctr ., 72 A.3d 929, 964 (Conn. 2014) (quoting Petriello v. Kalman , 576 A.2d 474 (Conn. 1990). However, the recent DiLieto decision suggests that expert testimony, under certain circumstances, may not be required to establish a standard-of-care violation.

In DiLieto, the issue before the court was whether a first-year gynecological fellow should have been permitted to perform surgery without supervision. At trial, the evidence was that the relevant procedures required the first-year fellow to be supervised during the surgery. In addition, a supervising oncologist confirmed that the first-year oncologist was not permitted to perform unsupervised surgery except in rare emergency situations. The court held that the policy and procedure, in combination with the supervising oncologists' testimony about how the policy worked, was sufficient evidence for the jury to infer a standard-of-care violation. The court was careful not to overrule the longstanding general rule, but rather, distinguished the case from Petriello.

It remains rare that violations of policies and procedures alone can establish negligence of a health-care practitioner or facility. However, it is possible that courts could begin leaning in this direction. The DiLieto decision has arguably opened the door in Connecticut for argument that, under certain circumstances, expert testimony is not required to establish a standard of care violation. This trend could continue in other states currently adhering to the majority rule. Practitioners should be aware that even if their state has long sustained the “majority rule,” certain facts and circumstances may incline the appellate court to rule that violations policies and procedures alone can establish negligence.

The Conservative Minority: Violations of Policies Are Not Relevant to Standard of Care

Even rarer than jurisdictions that hold that violations of policies or procedures are adequate evidence that the standard of care has been violated are states that hold that such violations have no relevance to liability or standard of care issues whatsoever. In fact, Michigan appears to be the only state where violations of policies and procedures are not at all admissible as evidence of a standard of care breach.

Michigan

Melick v. William Beaumont Hosp., No. 319495, 2015 WL 1739980 (Mich. Ct. App. Apr. 16, 2015): The Michigan Court of Appeals recently held that hospital policies and procedures were not even discoverable where only vicarious liability is alleged. The plaintiff alleged that a hospital was vicariously liable for the nurses it employed, and sought to compel the production of the hospital's policies and procedures. The Court of Appeals overturned the trial court's order directing production of the internal policies and procedures, and reasoned that relevant policy “does not establish the standard of care, it does not show whether the nurses' conduct in question was a breach of that standard of care, it does not demonstrate that [Plaintiff] suffered injury, or whether the nurses' breach of the standard of care was the proximate cause of that injury.”

Michigan seems to be the lone state to continue with this approach. The Melick opinion even suggests that, under certain circumstances ' such as where direct liability of a hospital is alleged ' it could be persuaded that policies and procedures are discoverable and admissible. However, for the time being, Michigan is holding to its traditional rule that internal policies and procedures cannot be admitted to show standard of care. Gallagher v. Detroit-Macomb Hosp. Assoc ., 431 N.W.2d 90 (Mich. Ct. App. 1988).

In next month's issue, we will discuss other ways in which violations of policies and procedures can affect actions against medical care providers in ways beyond the establishment of the standard of care.

Neil Edwards is an attorney practicing in the Atlanta office of Carlock, Copeland & Stair, LLP. He defends physicians, nurses, medical practices and long-term care facilities in medical malpractice and other litigation. Meg Twomey is a summer associate at the firm.

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