Policies and Procedures As a Basis for Liability

All states appear to follow the rule that there must be evidence, established by an expert, that the violation of the policy and procedure was the proximate cause of the alleged injuries. However, there does not appear to be a uniform consensus as to how the nexus between the violation and the alleged injury must be established.

Even in the few states where violations of the policies and procedures alone could be considered evidence of negligence, there is still a requirement for expert testimony to establish proximate cause. For example, in Louisiana, the plaintiff has the burden of demonstrating by a preponderance of the evidence a causal nexus between the defendant's violation of a policy and procedure and the injury alleged. See Pfiffner v. Correa, 643 So.2d 1228 (La. 1994).

In the Georgia case of Herrington v. Gaulden,'751 S.E.2d 813 (Ga. 2013), the court discussed that the failure to follow the policy must demonstrate “increased risk of harm to patients.” The court ultimately concluded that there was no evidence of an “increased risk of harm,” but suggested that this could be the standard moving forward. In this regard, the court cited the Restatement 2d Torts ' 324A(a), which states that one who negligently performs an undertaking to another may be liable if “his failure to exercise reasonable care increases the risk of such harm.” While many states are adopting the language of the Restatement and the “increased risk of harm” standard, others continue to use different standards.

For example, in a failure-to-diagnose claim in Missouri's Court of Appeals, the court required “cause in fact” causation, which is often shown using the “but for” test. Wicklund v. Handoyo, 181 S.W.3d 143 (Mo. Ct. App. 2005). The court stated there that in failure-to-diagnose cases, especially, expert testimony must show a “reasonable degree of medical or scientific certainty” that a defendant's negligence caused the harm. Some of the evidence used to show that the doctors failed to exercise the proper standard of care included their failure to properly monitor and failure to respond to nurses' calls ' actions that may commonly be required by policies.

Based on a survey of the current case law, there appears to be no uniformity on the standard of proof required to establish the causal link between a violation of a policy and procedure and the cause of the alleged injuries. It appears certain, however, that there must be some expert testimony to establish the link. In prosecuting or defending a case for litigation, it is important that an expert be able to explain why (or why not) the violation led to the alleged injuries. It is equally important that the attorney is aware of the standard of proof.

Administrative Policies Not Involving Medical Judgments

In a majority of states that do require expert testimony to establish a breach of the standard of care, there is a common exception for policies and procedures which do not involve medical judgments. This exception makes sense, as expert testimony would generally not be required where medical judgments were not involved. Often, courts may be presented with a dispute as to whether the policies are purely administrative or related to medical judgments. Therefore, whether or not this exception applies depends upon the circumstances of each particular case.

Vermont

In Taylor v. Fletcher Allen Healthcare, 60 A.3d 646 (Vt. 2012), the plaintiff alleged that a nurse withdrew support and assistance while she was using the bathroom, causing her to fall violently on a toilet. The plaintiff presented evidence that the nurse breached the standard of care in the form of a nursing text and the method taught by the head nurse of defendant's facility. In deciding whether the evidence was sufficient without the testimony of an expert, the court held that “while medical malpractice plaintiffs must generally use an expert witness to satisfy their burdens of proving the elements of medical negligence, an exception to the general rule exists in cases where the violation of the standard of medical care is so apparent to be comprehensible to the trier of fact.”

South Carolina

Under facts quite similar to those in Vermont's Taylor case, in Dawkins v. Union Hospital District, 758 S.E.2d 501 (S.C. 2014), South Carolina's high court considered a plaintiff's claim that “she would not have suffered injuries 'had the [Hospital's] staff performed their duties in compliance with the Hospital Policies.'” The court articulated South Carolina's rule that “if a patient received nonmedical, administrative, ministerial, or routine care, expert testimony is not required and the action sounds in ordinary negligence rather than medical malpractice.” The court found that the nurses' failure to follow the policy was sufficient to support a finding of negligence, and determined that no expert testimony was necessary. Therefore, the violation of the policy alone was a basis for liability because of this exception.

New Mexico

New Mexico courts conduct a case-by-case analysis of the facts to determine if specialized know- ledge or a judgment call is required with respect to the policy at issue. Richter v. Presbyterian Healthcare Servs., 326 P.3d 50, 57 (N.M. Ct. App. 2014), involved a medical testing laboratory that failed to deliver results to a patient before she was discharged from the hospital, and failed to notify her physicians of abnormal tests results. The court made an important distinction in its opinion between a lab value missed because of the practitioner's failure to realize the urgency of the situation and a lab value missed because polices (such as patient charting policies or lab delivery policies) were not followed. The court held that if the administrative charting or delivery polices were not followed, the internal policies, contracts or regulations themselves could be used as evidence of negligence in place of expert testimony.

In most states, this will be an important consideration, and will significantly affect how allegations and defenses are crafted in a medical malpractice case. The manner in which policies and procedures are drafted should also take this issue into account. As a practical matter, there is likely a good-faith argument that most policies are merely administrative. Where expert support is lacking or limited, the allegations could be crafted to address the “administrative” aspects of the conduct. Similarly, defenses should be presented such that the opponent is not absolved of the expert testimony requirements. Further, health care practitioners and administrators should take note that ambiguously worded policies may increase the likelihood of a court finding that the administrative exception applies.

Conclusion

The majority rule is that policies and procedures may be used against a medical facility or practitioner. However, most states will not allow violations of a policy and procedure to stand alone as a basis for liability. The most important and common exception to this rule is for polices that involve administrative or ministerial tasks. Only Michigan continues to apply the conservative approach whereby policies and procedures have no relevance to the standard of care.

While most states continue to require expert testimony to establish a breach of the standard of care, evidence that policies and procedures were violated will still be admissible and can be powerful. For example, the fact that a physician violated his or her employer's policies or a hospital policy may resonate with jurors. Accordingly, both those drafting policies and those defending medical malpractice cases should fully understand all relevant policies and procedures and their implications for litigation.

The challenge for facilities is to craft responsible and effective policies and procedures that do not make compliance nearly impossible. It would be wise for practitioners and administrators to consult with attorneys for advice on the current law regarding policies and procedures in their state.

Neil Edwards is an attorney practicing in the Atlanta office of Carlock, Copeland & Stair, LLP. Meg Twomey is a summer associate at the firm.

Editor's Note: In last month's newsletter, we discussed the fact that, in some jurisdictions, evidence that medical facility policies and/or procedures were not followed may be introduced to show that its medical practitioners did not meet the standard of care. Other states do not allow the introduction of such evidence for that purpose. As with everything else in law, each case will need to be analyzed with the law of the jurisdiction in mind.

Policy and procedure evidence may also affect other issues in a case, beyond the question of whether the standard of care was met. The authors discuss those issues herein.

Policies, Procedures and Proximate Cause

All states appear to follow the rule that there must be evidence, established by an expert, that the violation of the policy and procedure was the proximate cause of the alleged injuries. However, there does not appear to be a uniform consensus as to how the nexus between the violation and the alleged injury must be established.

Even in the few states where violations of the policies and procedures alone could be considered evidence of negligence, there is still a requirement for expert testimony to establish proximate cause. For example, in Louisiana, the plaintiff has the burden of demonstrating by a preponderance of the evidence a causal nexus between the defendant's violation of a policy and procedure and the injury alleged. See Pfiffner v. Correa , 643 So.2d 1228 (La. 1994).

In the Georgia case of Herrington v. Gaulden,'751 S.E.2d 813 (Ga. 2013), the court discussed that the failure to follow the policy must demonstrate “increased risk of harm to patients.” The court ultimately concluded that there was no evidence of an “increased risk of harm,” but suggested that this could be the standard moving forward. In this regard, the court cited the Restatement 2d Torts ' 324A(a), which states that one who negligently performs an undertaking to another may be liable if “his failure to exercise reasonable care increases the risk of such harm.” While many states are adopting the language of the Restatement and the “increased risk of harm” standard, others continue to use different standards.

For example, in a failure-to-diagnose claim in Missouri's Court of Appeals, the court required “cause in fact” causation, which is often shown using the “but for” test. Wicklund v. Handoyo , 181 S.W.3d 143 (Mo. Ct. App. 2005). The court stated there that in failure-to-diagnose cases, especially, expert testimony must show a “reasonable degree of medical or scientific certainty” that a defendant's negligence caused the harm. Some of the evidence used to show that the doctors failed to exercise the proper standard of care included their failure to properly monitor and failure to respond to nurses' calls ' actions that may commonly be required by policies.

Based on a survey of the current case law, there appears to be no uniformity on the standard of proof required to establish the causal link between a violation of a policy and procedure and the cause of the alleged injuries. It appears certain, however, that there must be some expert testimony to establish the link. In prosecuting or defending a case for litigation, it is important that an expert be able to explain why (or why not) the violation led to the alleged injuries. It is equally important that the attorney is aware of the standard of proof.

Administrative Policies Not Involving Medical Judgments

In a majority of states that do require expert testimony to establish a breach of the standard of care, there is a common exception for policies and procedures which do not involve medical judgments. This exception makes sense, as expert testimony would generally not be required where medical judgments were not involved. Often, courts may be presented with a dispute as to whether the policies are purely administrative or related to medical judgments. Therefore, whether or not this exception applies depends upon the circumstances of each particular case.

Vermont

In Taylor v. Fletcher Allen Healthcare , 60 A.3d 646 (Vt. 2012), the plaintiff alleged that a nurse withdrew support and assistance while she was using the bathroom, causing her to fall violently on a toilet. The plaintiff presented evidence that the nurse breached the standard of care in the form of a nursing text and the method taught by the head nurse of defendant's facility. In deciding whether the evidence was sufficient without the testimony of an expert, the court held that “while medical malpractice plaintiffs must generally use an expert witness to satisfy their burdens of proving the elements of medical negligence, an exception to the general rule exists in cases where the violation of the standard of medical care is so apparent to be comprehensible to the trier of fact.”

South Carolina

Under facts quite similar to those in Vermont's Taylor case, in Dawkins v. Union Hospital District , 758 S.E.2d 501 (S.C. 2014), South Carolina's high court considered a plaintiff's claim that “she would not have suffered injuries 'had the [Hospital's] staff performed their duties in compliance with the Hospital Policies.'” The court articulated South Carolina's rule that “if a patient received nonmedical, administrative, ministerial, or routine care, expert testimony is not required and the action sounds in ordinary negligence rather than medical malpractice.” The court found that the nurses' failure to follow the policy was sufficient to support a finding of negligence, and determined that no expert testimony was necessary. Therefore, the violation of the policy alone was a basis for liability because of this exception.

New Mexico

New Mexico courts conduct a case-by-case analysis of the facts to determine if specialized know- ledge or a judgment call is required with respect to the policy at issue. Richter v. Presbyterian Healthcare Servs. , 326 P.3d 50, 57 (N.M. Ct. App. 2014), involved a medical testing laboratory that failed to deliver results to a patient before she was discharged from the hospital, and failed to notify her physicians of abnormal tests results. The court made an important distinction in its opinion between a lab value missed because of the practitioner's failure to realize the urgency of the situation and a lab value missed because polices (such as patient charting policies or lab delivery policies) were not followed. The court held that if the administrative charting or delivery polices were not followed, the internal policies, contracts or regulations themselves could be used as evidence of negligence in place of expert testimony.

In most states, this will be an important consideration, and will significantly affect how allegations and defenses are crafted in a medical malpractice case. The manner in which policies and procedures are drafted should also take this issue into account. As a practical matter, there is likely a good-faith argument that most policies are merely administrative. Where expert support is lacking or limited, the allegations could be crafted to address the “administrative” aspects of the conduct. Similarly, defenses should be presented such that the opponent is not absolved of the expert testimony requirements. Further, health care practitioners and administrators should take note that ambiguously worded policies may increase the likelihood of a court finding that the administrative exception applies.

Conclusion

The majority rule is that policies and procedures may be used against a medical facility or practitioner. However, most states will not allow violations of a policy and procedure to stand alone as a basis for liability. The most important and common exception to this rule is for polices that involve administrative or ministerial tasks. Only Michigan continues to apply the conservative approach whereby policies and procedures have no relevance to the standard of care.

While most states continue to require expert testimony to establish a breach of the standard of care, evidence that policies and procedures were violated will still be admissible and can be powerful. For example, the fact that a physician violated his or her employer's policies or a hospital policy may resonate with jurors. Accordingly, both those drafting policies and those defending medical malpractice cases should fully understand all relevant policies and procedures and their implications for litigation.

The challenge for facilities is to craft responsible and effective policies and procedures that do not make compliance nearly impossible. It would be wise for practitioners and administrators to consult with attorneys for advice on the current law regarding policies and procedures in their state.

Neil Edwards is an attorney practicing in the Atlanta office of Carlock, Copeland & Stair, LLP. Meg Twomey is a summer associate at the firm.