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The Journal of Psychiatry & Law 33/Fall 2005 445 COMMENTARY Malpractice, non-medical negligence, or breach of contract BY PROFESSOR RALPH SLOVENKO Not every lawsuit against a professional involves malpractice, that is, professional negligence. Intentional wrongdoing as well as ordinary negligence (such as defective premises) or a contractual undertaking fall outside the purview of malpractice.' Yet, protective of the medical profession, behavior that ordinarily might be considered intentional wrongdoing or non-medical negligence quite often has been considered as malpractice and subject to malpractice limitations of which there are several. Malpractice actions are curtailed by a two- year statute of limitations (prescription) rather than three years in the case of non-medical negligence (one year in the case of an intentional tort and six years for breach of contract). Malpractice actions require expert testimony (except in obvious cases of wrongdoing as where a surgeon amputates the wrong limb).^ There are other differences. The professional liability insurance policy covers malpractice, not intentional wrongdoing, ordinary negligence, or contractual obligations.' Moreover, judgments attributable to negligence, medical or non-medical, are discharged in bankruptcy, but not those attributable to intentional wrongs, and punitive damages are usually awarded in the case of intentional wrongs. © 2005 by Federal Legal Publications, Inc. 446 COMMENTARY Professional negligence, or malpractice, includes all professionals—they must possess and apply the average skill or knowledge of other professionals in like circumstances." However, when a person speaks of a malpractice action, it is presumed that it is about a lawsuit against a physician rather than about the negligence of a member of any professional group. Indeed, there are special laws on medical malpractice. "Malpractice" is even defined in some dictionaries as "improper treatment or culpable negligence of a patient by a physician."' The medical profession has been successful in persuading various state legislatures to alleviate an alleged medical malpractice crisis. The legislation varies considerably among the states (Michigan legislation will hereafter be set out). Caps have been imposed on awards for pain and suffering and limitations on expert testimony. Many states now require submitting the case to a screening arbitration and others impose restrictions on contingent fees. Then, too, the political rhetoric and media publicity about a "medical malpractice crisis" affect the outcome of cases (during the 2004 presidential campaign the issue of medical malpractice reform was raised almost daily). By and large, jurors are compromised. In 2004, the U.S. Supreme Court handed down in what is called a groundbreaking decision, Aetna v. Davila,^ that addressed federal preemption of state law claims against health maintenance organizations (HMOs). The Court held that the Employee Retirement Income Security Act (ERISA) completely preempts state law medical malpractice claims challenging health benefits decisions made by HMOs. In doing so, Davila marked a turnaround in recent Supreme Court decisions that seemed to have eroded ERISA's preemptive effect. It also resolved a split among the circuit courts as to whether health plan members can sue their HMOs for making negligent medical decisions. Instead of making a claim under state law, plan participants must 447 enforce their rigbts to benefits under tbe federal ERISA statute, wbicb provides various remedies designed to protect tbe participant's claim to benefits. However, tbe cbief criticism of ERISA bas been not so mucb tbe nature of tbe remedies provided as mucb as tbe type of relief tbat is unavailable under ERISA, mucb less punitive damages. ERISA limits recovery to tbe benefits due under tbe plan or injunctive relief to secure tbem. Otber tban possibly obtaining attorney's fees, tbe consequential damages caused by ERISA violations—including wrongful benefit denials— are not recoverable.' One argument against allowing a malpractice action against an HMO is tbat, strictly speaking, it is not practicing medicine. A pbysician-patient relationsbip is usually a prerequisite to a professional malpractice suit against a pbysician. Traditionally, a pbysician's duty of care bas been limited to persons witb wbom a pbysician-patient relationsbip bas been establisbed.' A court-ordered medical examination of a claimant does not give rise to a pbysician-patient relationsbip. (Tbe medical examiner also enjoys a qualified tort immunity as an expert witness.') In performing evaluations on bebalf of employers or insurance companies tbat are not intended or reasonably construed to be for purposes of treatment, no pbysician-patient relationsbip is normally created or legally implied.'" Tbus, wben a pbysician employed by an insurance company examines an individual for tbe purpose of qualifying bim for insurance coverage, tbe usual rule bas been tbat a pbysician owes no duty to tbe individual to treat or to disclose problems discovered during tbe examination." Likewise, pre-employment pbysicals do not give rise to tbe relationsbip, given tbe absence of a therapeutic purpose,'^ nor do examinations by an insurer's pbysician of a claimant against tbe insurer as tbe result of injuries from an accident." Experimentation or non- tberapeutic researcb—tbat is, wbere tbere is no intention of directly benefitting a subject—does not create a pbysician- patient relationsbip, but tbere often occurs a "therapeutic 448 COMMENTARY misconception" where the subjects do not comprehend that the research might not be beneficial to them.'* A line of cases hold that the presence or absence of a physician-patient relationship is simply a factor to consider in determining the type or nature of the duty owed, if any, to the non-patient.'^ In general, there is no duty to come to the aid of a stranger, but once aid is undertaken, be it by a physician or other person, that individual then owes a duty of care. In the case of a physician coming to the aid of another, there is a physician-patient relationship that continues until ended by the parties' mutual consent, revoked by dismissal of the physician, or until the physician determines that the services are no longer beneficial to the patient, and the patient is given a reasonable time to procure other medical attention. Every state in the United States has enacted a so-called Good Samaritan statute which provides that a physician (or other medical professional) who in good faith aids another at the scene of an emergency is not liable for any harm caused by the aid unless "gross negligence" or willful and wanton misconduct can be proven." While the Good Samaritan statutes do not create a duty to act (in contravention of the tort principle of no duty to aid in the absence of a pre- existing special relationship), the legislatures sought to provide incentives for physicians (or other medical professionals) to aid by removing the threat of civil liability. Those not listed in the Good Samaritan statute who come to the rescue of another are measured by what would be expected of the average reasonable person, not by a measure of what might be considered gross negligence. When enacting Good Samaritan statutes, the legislatures by and large had a specific scenario in mind—the roadside accident. The statutes were passed in order "to encourage physicians and other health care providers who have no pre- existing duty to assist, and who in good faith believe that a person is unconscious, ill, injured, or in need of assistance, to 449 come as a volunteer to the aid of that person without fear of litigation should the physician's care fall beneath a reasonable standard, so long as that care is not grossly negligent."" The care must be rendered without charge (or in some states without even the intention of charging).'* The various states exclude from Good Samaritan immunity physicians and others who provide emergency care as part of the normal course of their work. Michigan, for example, extends protection only to professionals whose "actual hospital duty does not require a response to an emergency situation."" Be that as it may, one of the most litigated issues involving Good Samaritan statutes has been whether the immunity covers emergencies in the hospital setting. The statutes range from providing immunity only for emergencies outside the hospital to providing immunity for emergencies inside the hospital. As mentioned, the scenario that legislatures had in mind when passing these statutes (especially those that were passed early on) was the roadside accident scenario, where a physician is without the equipment, assistance, and general support available in a hospital setting. As the New Jersey Supreme Court put it: "Good Samaritan immunity under [New Jersey's Good Samaritan Act] encompasses only those situations in which a physician (or other volunteer) comes, by chance, upon a victim who requires immediate emergency medical care, at a location compromised by lack of adequate facilities, equipment, expertise, sanitation, and staff. A hospital or medical center does not qualify under the terms of the Good Samaritan Act."^" The decision disturbed physicians practicing in New Jersey.^' This is not always the state of affairs nationwide, however. Elsewhere it is said that the legislative purpose behind the Good Samaritan statute is broader than the roadside scenario. In the words of a California court, the intent behind the statute is "to induce physicians to render medical aid to individuals who, though in need of such care, were not 450 COMMENTARY receiving it" and further was "directed towards physicians who, by chance and on an irregular basis, come upon or are called to render emergency medical care."" Michigan is one of at least six states where the law explicitly covers emergencies within the hospital or medical center setting." In these jurisdictions the most frequently litigated issue is whether or not it was truly an emergency and whether or not there was already a pre-existing duty to render aid. The courts have been generous in their definition of emergency.^"* When do physicians or psychotherapists owe a duty to persons other than their patients? It is an axiom that good medical care involves consideration not only of the patient but also to others. As a legal matter, should the duty to others, if any, be considered as falling under medical malpractice or as non-medical negligence? In the famous case of Tarasojf v. Regents of University of California,^^ the California Supreme Court held that by virtue of the "special relationship" that a therapist has with a patient, there results a duty of care to third parties who might be injured by the patient. It is immaterial whether or not the treatment of the patient falls below standard of care, or whether or not there is a causal nexus between the treatment and the injury to the third person. The court said: "Although under the common law, as a general rule, one person owed no duty to control the conduct of another, nor to warn those endangered by such conduct, the courts have carved out an excep- tion to this rule in cases in which the defendant stands in some spe- cial relationship to either the person whose conduct needs to be controlled or in a relationship to the foreseeable victim of that con- duct" (emphasis added). In Tarasoff, the court adopted a two-step process of assessment, each step having its own distinct standard of care. In determining whether the patient is a danger to others, the judgment of the therapist is to be measured by a "professional standard of care, requiring the therapist to exercise the 'reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of his 451 professional specialty.'" That, of course, is a malpractice standard. To establish what the defendant "should have known," expert testimony regarding the standards of the profession is required (but what can be said when professional guidelines are ill-defined or nonexistent?). With danger known or knowable, the therapist is obliged to use "reasonable care" to protect the potential victim. The adequacy of the therapist's conduct in dealing with the danger, the court held in Tarasoff, is to be measured according to the traditional negligence standard of "reasonable care under the circumstances," that is, without expert testimony, just as negligence is measured in ordinary accident cases. Many states by legislation have provided that the duty imposed on the therapist is dischargeable by a simple warning to the potential victim. The court in Tarasoff reached its result by analogy to common law cases imposing liability on a physician who misdiagnoses a communicable disease to the detriment of those coming into contact with the patient.^' The lawsuit by the plaintiff, though not a patient, is sounded in malpractice with the result that the limitations on malpractice actions apply. Many statutes that prescribe specific conduct and impose a criminal penalty for violation do not mention tort-law consequences but, the courts often apply these statutes in tort cases as a specific rule of conduct. For example, in an action against a physician for failure to diagnose and report "battered child syndrome" as required by statute, the California Supreme Court held that the child, as plaintiff, (whether or not a patient) stated a cause of action in malpractice thus requiring expert testimony." If reporting had been done, the child may have been saved from further abuse. What about failure to obtain the consent of the patient for treatment? Liability arising out of medical treatment where consent is lacking can rest on one of two theories: battery (an 452 COMMENTARY intentional tort) or negligence. Typically, an action based on battery occurs where the physician obtains the consent of the patient for the performance of a particular procedure but, thereafter, performs a different procedure for which consent was not obtained. On the other hand, when consent is given for a procedure but injury results due to an undisclosed risk, the theory in such a case is usually negligence. It could be said that lack of "informed consent" also results in a battery but the various states by court decision or statute have deemed lack of informed consent to constitute malpractice, not battery. Unlike in a case of battery, expert testimony is required to establish the elements of an action based on lack of informed consent— competency, disclosure, and voluntariness. As lack of informed consent is a negligence—not intentional—tort action, proof of damages is necessary. A complaint of battery, on the hand, may be based solely on an insult to bodily integrity. Likewise, it would be assumed that "undue familiarity" with a patient is an intentional tort, but the courts have held that since it occurs with some frequency in psychotherapy, it is a risk of psychotherapy. It is said to occur when the therapist mishandles the so-called transference phenomenon, resulting in sexual attraction between therapist and patient. An allegation of "intentional" misconduct would result in malpractice carriers disclaiming coverage for the behavior. In recent years, however, with the increasing numbers of claims of sexual misconduct, malpractice carriers now routinely disclaim coverage in their policies. Consequently, sexual misconduct cases now often allege intentional tort, and seek punitive damages as well. An allegation of improper restraint or seclusion in a mental or other institution could be classified as an intentional tort— false imprisonment—but is nonetheless classified as malpractice. In Youngberg v. Romeo,^' the U.S. Supreme Court said in a lawsuit alleging false imprisonment and constitutional deprivation: "The decision, if made by a professional, is presumptively valid [and] liability may be 453 imposed only when the decision by the professional is such a substantial departure from accepted professional judgment, a practice or standard as to demonstrate that the person responsible actually did not base the decision on such a judgment." Further, the Court defined "professional" broadly and pragmatically, encompassing "a person competent, whether by education, training, or experience to make the particular decision at issue." Concurrent with the trend of categorizing alleged physician wrongdoing as malpractice came rules making malpractice litigation more difficult and expensive. No one change was a watershed event, but the cumulative effect has been to diminish the chances of proceeding against a physician or holding the physician liable for malpractice. In recent years, legislation in various states have dramatically altered the law governing medical malpractice actions. The Michigan legislature enacted the following: • Criteria and qualifications to be used in order to determine whether an expert witness is entitled to testify on the appro- priate standard of care in a medical malpractice case^' • Requirement that all medical malpractice lawsuits go through a mediation process'" • A $280,000 cap on plaintiffs' recovery for noneconomic dam- ages in medical malpractice actions" • Establishing a burden of proof, whereby plaintiffs must prove that it is more probable than not that injuries were caused by the negligence of a health professional" • Limitation on a plaintiffs recovery by disallowing recovery for loss of an opportunity to survive or of an opportunity to achieve a better result unless the opportunity was greater than 50 percent" • A requirement that a plaintiff give 182 days written notice of the intent to file a medical malpractice action and setting forth the requirements for the contents of the notice, requirements that both parties provide access to medical records and requir- ing a written response by the potential defendant within 154 days after receipt of the initial notice'* 454 COMMENTARY • Authorizing the defendant in a medical malpractice action to file a certificate of noninvolvement with the court which cer- tifies he or she was not involved in the occurrence alleged in the complaint, and unless the certificate is opposed by the plaintiff or another co-defendant, the defendant is entitled to dismissal of the action against him or her" • Mandating that a plaintiff file an affidavit of merit, along with the complaint which is signed by a health professional who meets the qualifications for an expert witness'' • Requiring the defendant to file an affidavit of meritorious defense within 9t days of the plaintiff filing his or her affi- davit of merit, also to be signed by a health professional that satisfies the expert witness qualification standard" • Automatic waiver of the physician-patient privilege by plain- tiff's filing of a medical malpractice action with regard to any events, persons or other related elements that are part of the basis of the plaintiffs claim'* • Altering the time the standard two-year statute of limitations starts to run in some situations, and altering the statute of lim- itations tolling periods for malpractice actions in others" • Amending the rules governing joint liability*" As a practical matter, lawyers for plaintiffs are mindful of the liability insurance coverage of the defendant. There is no point in filing suit if the defendant has no assets, or is judgment-proof by virtue of a transfer of assets. Then too, a settlement is more likely if there is insurance. But when filing an action sounding in malpractice, which is covered by insurance, the plaintiff's attorney is faced with an increasing number of obstacles (as illustrated by the Michigan legislation). The courts in various states at times are mindful of the obstacles facing a plaintiff alleging malpractice, so a bypass occurs by a holding (based on a pleading) that the scenario is one of non-medical negligence. During World War II the Germans went around the Maginot Line that the French thought would protect them from invasion."' Michigan is a notable exception. Without question, Michigan nowadays is more protective of the medical profession than 455 in other states. The Michigan Supreme Court is aligned with the legislature in providing that protection."^ Not only is it very difficult to make out a case of medical malpractice in Michigan, but just about anything that occurs in a medical setting, including slips and falls, are categorized as falling under the limitations of a malpractice action."" Unlike in many states, the Michigan Supreme Court has upheld against constitutional objection the caps on damages enacted by the legislature. The qualifications of an expert are more difficult to establish than in other states."" Michigan is one of the few states that expand Good Samaritan immunity to include hospital care."' Herewith decisions in other jurisdictions. In a New Hampshire case, Powell v. Catholic Medical Center,*^ a phlebotomist was injured when a patient attacked her as she was attempting to draw blood. She brought action against the hospital and doctor, alleging that they breached their duty to warn her of the patient's potentially assaultive behavior. The New Hampshire Supreme Court held that expert testimony was not required since determining whether a patient posed a risk and whether a warning was necessary were in the purview of average jurors. The court said that this case was an ordinary duty of care case. It is only fortuitous that one of the defendants is a physician, the court said, and the court declined to follow Tarasoff where it was held that expert testimony was essential in establishing a duty to protect. In a case in Alaska, D.P. v. Wrangell General Hosp." a schizophrenic patient brought a negligence action against a hospital and nurses, alleging that she was inadequately supervised. As a result, she left the hospital and had sexual relations with a man whom she delusionally believed was either "Jesus" or "a prophet." The Alaska Supreme Court said that the facts of the case did not raise medical malpractice issues, and thus, the patient was not required to present expert medical testimony. The plaintiff did not allege that the defendants failed to appreciate her mental health status, to 456 COMMENTARY recognize a risk of harm to her, or to order reasonable precautions. She instead faulted the defendants' failure to follow the ordered precautionary measures. There was a strong dissent. The defendants in D.P. relied primarily on cases discussing whether the health care provider failed to recognize the suicidal or elopement tendencies of the patient or failed to order appropriate precautions."^ On the other hand, most courts characterize cases in which the plaintiff alleges a failure to adequately supervise and safeguard the patient as involving ordinary negligence issues."' In Meier v. Ross General Hosp.,^" the Califfornia Supreme Court concluded that the scenario supported instructions on both ordinary negligence and medical malpractice. In this case the patient jumped through an unbarred second story window of a hospital. Issues relating to improper medical diagnosis and chemotherapy treatment required an instruction on the professional standard of care. But the court concluded that an instruction on ordinary negligence was appropriate on the question of whether it was negligent to allow the decedent, who was depressed and had previously slashed his wrists, to wander freely around a hospital where there were no bars on the windows. By characterizing the conduct in question as ministerial rather than medical, the traditional expert testimony approach to the liability of health care providers is avoided. For example, in an Iowa case, Kastler v. Iowa Methodist Hosp.," a psychiatric patient brought a negligence action after falling while taking a shower. The court characterized this activity as involving "routine" care, and held that the plaintiff was not required to produce expert testimony as to the standard of care. On the other hand, in a Pennsylvania case. Saltier v. Reckord,^^ a patient fell from a stool after he had stated that he felt faint following a blood test. The fall caused a sterilizer to spill, burning the patient. The court held that this was a malpractice case and not one which could be maintained on a premises liability theory. 457 In another Iowa case, Campbell v. Delbridge," the patient brought suit against his treating doctor and hospital seeking damages for reinfusing the patient's own blood following surgery. The plaintiff alleged negligence, failure to obtain informed consent, breach of contract, medical battery, and invasion of privacy. The defendant moved for summary judgment on the ground that, without expert testimony, the plaintiff could not make a prima facie showing of any of his theories of recovery. The Iowa Supreme Court held that (1) evidence concerning the lack of communication between the doctor and the hospital nurses, the possible mix-up in patient charts, and the doctor's admission of error were capable of being resolved by a fact-finder without the testimony of experts; (2) expert testimony was not necessary to sustain the patient's claim of emotional distress. Then too, proof of a medical standard of care is not required in cases where the injury resulted from a doctor's misrepresentation or breach of contract. In Osborn v. Irwin Memorial Blood Bank,^ parents wanted to arrange to donate their own blood and that of friends for the benefit of their child who was to undergo surgery. The defendant's employee erroneously told them they could donate blood but, could not reserve it for their child's use. Accordingly, other blood was used in transfusions. The child contracted the AIDS virus from the blood transfusions. The court said these facts would show negligent misrepresentation which would be actionable if it is a proximate cause of harm. The result of misrepresentation may be a battery claim. In Duttry V. Patterson," the plaintiff underwent surgery performed by the defendant for esophageal cancer. A leak later occurred along the surgical site, requiring emergency surgery, and as a result the plaintiff allegedly developed a respiratory disease rendering her unable to work. Plaintiff said "she questioned Dr. Patterson about his experience and he advised her he had performed this particular procedure on an average of once a month." In fact, the plaintiff alleged. 458 COMMENfTARY "he had performed it only five times in the preceding five years." The court rejected defendant's assertion that the plaintiff had to have expert testimony to prove her claim. The court said, "In this type of claim where the plaintiff alleges the physician did not have her informed consent to perform the surgery because she was misinformed of his qualifications, the theory of recovery is battery and the plaintiff need not establish negligence." Sometimes the patient can allege injury from a breach of contract or some specific promise distinct from any implied promise to conform to the medical standard of care. Proof of breach of a specific promise may suffice without expert testimony. In Hull v. Ratino,^^ the allegation was that the plaintiff contracted for a breast reduction operation but that the doctor actually augmented her breasts. "[T]he standard of care required that [the doctor] perform the procedure he agreed to perform," the court said, so the question was not medical custom but whether he deviated from that agreement and whether the plaintiff suffered harm. In an early Michigan case, in 1971, Guilment v. Campbell," the Michigan Supreme Court confirmed an award against a surgeon who had been sued for both malpractice and breach of contract. The jury found no showing of malpractice but concluded that he had breached his contract. There was evidence that the claimant, who suffered from a bleeding ulcer, in conversations with the physician had been assured that a vagotomy would "take care of all your troubles" and that the operation would incapacitate him for only "about two or three weeks." The evidence also indicated that the physician said he would "be a different man" after the operation. There were, however, substantial complications following the surgery, including a perforated esophagus and hepatitis. Since the patient had not recovered as he had been "promised," the physician was found to have committed a breach of contract. 459 As a general principle of law, a physician is not a guarantor of a cure, does not warrant a good result, is not an insurer against mishaps or unusual consequences, and is not liable for honest mistakes of judgment. Generally speaking, a contract for medical services is not relegated to the level of a commercial transaction, where assurances are construed as warranties. Medicine or psychiatry is not an exact science. It is a different matter, however, if the physician makes a guarantee. "It is well settled," the Michigan Supreme Court said in the 1971 case, "that a physician or surgeon may bind himself by an express contract to perform a cure or obtain specific results by treatment." "What we are saying," the court explained, "is that under some circumstances the trier of fact might conclude that a doctor so speaking did contract to cure a patient." At the trial, the physician had contended that the conversations reported were typical expressions of reassurance and comfort generally employed by all physicians, and that to interpret reassurance as a promise to cure would chill the practice of medicine. The court ruled, however, that "what was said, and the circumstances under which it was said, always determine whether there was a contract and if so what it was." In a concurring opinion, three members of the court went to some lengths to point out that "every assurance by a physician does not constitute a contract to cure, but that the particular statements in this case did."'* A number of prominent law professors have advocated reconceptualizing medical malpractice law in terms of contract rather than tort.'' Contract theory might be based on advertising or promotional statements. Once a rarity in medicine, now there is a glut of advertising in newspapers, on billboards, and on television touting the quality of various medical institutions. Even if these assertions cannot be taken as warranting specific results from particular procedures, they can be argued to heighten the ordinary standard of care. Many physicians include in the itiformed cotisent form a statement that specifically denies any guarantee of results and asserts only that the physician will use his professional skills in the accepted manner. 460 COMMENTARY Traditionally, a profession has been distinguished from a business but increasingly the practice of medicine is being regarded as a business. The physician is called a "provider" and the patient is called a "consumer" of health care. In a number of states (e.g., Oregon) what might be considered as malpractice is made actionable under "bad practices" legislation. The recoverable damages are less than in a malpractice action. Framing a case may depend on the time that has elapsed since the alleged wrongdoing. Breach of contract is governed by a six-year prescriptive period, three or four years more than an action for malpractice or non-medical negligence and five years more than an action for an intentional tort. The damages recoverable for breach of contract, however, are limited to those within the contemplation of the defendant at the time the contract was made, and in contract actions there can ordinarily be no recovery for mental suffering. Generally speaking, the tort remedy is likely to be more advantageous to the injured party in the greater number of cases, if only because it will so often permit the recovery of greater damages, but when prescription has run on a malpractice action, breach of contract or non-medical negligence may be the only viable alternative for the complainant. Notes 1. Thus, in Self v. Executive Committee of Georgia Baptist Convention, 245 Ga. 548, 266 S.E.2d 168 (1980), where a hospital patient slipped and fell because the hospital left a slippery substance on the floor, the court held that this was not a claim of medical malpractice, and hence did not require expert testimony. 2. In an Iowa case, Oswald v. LeGrand, 453 N.W.2d 634 (Iowa 1990), the Iowa Supreme Court ruled that a fact-finder could evaluate the propriety of a doctor's early departure from the hospital—he knowingly had left the patient unattended in a hospital corridor screaming hysterically that she was about to give birth. In a similar case, a New Jersey court held that a woman claiming medical malpractice based on an "utter lack of attendance" at her delivery in a hospital need not produce expert testimony in order to overcome a motion for summary judgment. The court said in its ruling: "The question of malpractice in that regard would appear to be within the 461 province of the jury of laymen, depending upon the proofs submitted. 'There are basic aspects of childbirth procedure within the common knowledge of laity.' Attendance of a patient in labor at or near the moment of giving birth would seem to be an aspect particularly within that knowledge." Friel v. Vineland Obstetrical & Gynecological Professional Association, 166 NJ Super. 579, 400 A.2d 147 (1979). In Runnells v. Rogers, 596 S.W.2d 87 (Tenn. 1980), a physician failed to remove a wire that was embedded in a patient's foot. The patient's foot turned blue, and then black, and oozed "some sort of iiquid substance." The Tennessee Supreme Court was livid in its judgment that one need not present expert testimony in such a situation: "Even a barefoot boy knows that when his foot is infested by a sticker, splinter, thorn, pin, or other foreign object, it must be removed. Most assuredly this lies within the ken of a layman." 596 S.W.2d at 90. It is said that jurors, as a general matter, are better able to understand the sorts of decisions that physicians make, by contrast with those that lawyers make. Failure to present expert testimony is usually fatal to a plaintiff's legal malpractice action (giving rise to the belief that courts are more likely to be more protective of lawyers than physicians). See Barth v. Reagan, 139 I11.2d 399, 564 N.E.2d 1196 (1990). In any event, where the plaintiff is relieved of the burden of producing expert testimony, the other restrictions on a malpractice action remain in place. 3. Protection in cases of ordinary negligence is provided by the standard homeowners policy and by personal liability insurance, sometimes referred to as an umbrella policy because it sits on top of other coverage. An umbrella liability policy also covers libel and slander, which are not covered by standard policies. 4. In Rehabilitative Care Systems of America v. Davis, 73 S.W.3d 233 (Tex. 2002), a physical therapist was allegedly negligent in supervising a rehabilitation exercise, with the result that the plaintiff was further injured. The Texas Supreme Court said that "physical therapist malpractice suits are no different than any other medical malpractice," and that therefore, expert testimony would be required. 5. Jones, C.T. (ed.). The Shorter Oxford English Dictionary (Oxford: Clarendon Press, 3d ed. 1965). It is also to be noted that in common parlance "malpractice" is often equated with liability. Legally speaking, "malpractice" means fault, and for liability there must be a causal nexus between the fault and the harm. Slovenko, R., Psychiatry in Law/Law in Psychiatry (New York: Brunner- Routledge, 2002), pp. 433-437. 6. 124 S. Ct. 2488 (2004). 462 COMMENTARY 7. See Kolosky, M., "Aetna v. Davila/A New Look at ERISA Preemption of Medical Malpractice Claims," The Brief (American Bar Association) 34 (Spring 2005):34. 8. Hospital records or other evidence tending to indicate some direct contact between the physician and patient have been held to preclude summary judgment on the issue. See Easter v. Lexington Mem. Hosp., 303 N.C. 303, 278 S.E.2d 253 (1981); Willoughby v. Wilkins, 65 N.C. App. 626, 310 S.E.2d 90 (1983). The Emergency Medical Treatment and Active Labor Act (EMTALA), enacted in 1986 as part of the Consolidated Omnibus Budge Reconciliation Act of 1985, aims to prevent "patient dumping" by requiring hospitals to screen and stabilize patients who come to an emergency room seeking medical attention. See S.J. Saks, "Call 911: Psychiatry and the New Emergency Medical Treatment and Active Labor Act (EMTALA) Regulations," J. Psychiatry & Law 32(2004):483. 9. See, e.g., Hafner v. Beck, 916 P.2d 1105 (Ariz. App. 1995). 10. Furrow, B.R., Greaney, T.L., Johnson, S.H., Jost, T.S. & Schwartz, R.L., Health Law (St. Paul, MN: West, 2d ed. 2000), p. 260; Simon, R.L, Clinical Psychiatry and the Law (Washington, D.C.: American Psychiatric Press, 2d ed. 1992), pp. 3-19. 11. Peh-osky v. Brasner, 718 N.Y.S.2d 340, 279 A.D.2d 75 (2001); Saari V. Litman, 486 N.W.2d 813 (Minn. App. 1992). 12. Ney v. Axeirod, 723 A.2d 719 (Pa. Super. Ct. 1999). 13. Martinez v. Lewis, 942 P.2d 1219 (Colo. App. 1997). 14. Appelbaum, P.S., Roth L.H. & Lidz, C.W., "The Therapeutic Misconception: Informed Consent in Psychiatric Research," International J. Law & Psychiatry 5(1982):319; Katz, J., "Human Experimentation and Human Rights," 5/. Louis L.J. 38(1993):7. See also Resnik, D.B., "Liability for Institutional Review Boards," J. Legal Med. 25(2004:131. 15. See, e.g., Daly v. United States, 946 F.2d 1467 (9th Cir. 1991); Reed V. Bojarski, 166 N.J. 89, 764 A.2d 433 (2001); Meena v. Wilbum, 603 So.2d 866 (Miss. 1992). 16. Some statutes protect all Good Samaritans, without regard to their profession. See Perkins v. Howard, 283 Cal. Rptr. 764 (Cal. App. 1991). The District of Columbia provides immunity for midwives and nurses providing obstetrical care. D.C. Code §2-1345. 17. See Colby v. Schwartz, 144 Cal. Rptr. 624 (Cal. App. 1978); cited in Reuter, S.R., "Physicans as Good Samaritans: Should They Receive Immunity for Their Negligence When Responding to Hospital Emergencies?"/ Legal Med. 20(1999):157. 463 18. Mclntyre v. Ramirez, 109 S.W.3d 741(Tex. 2003). 19. Michigan Compiled Laws §691.1502(1). 20. Velazquez v. Jimenez, 172 N.J. 240, 798 A.2d 51 (2002). 21. Porter, R., "New Jersey Good Samaritan Law Does Not Immunize Emergency Room Doctors," Trial 38( Aug. 2002):74. 22. Colby V. Schwartz, 144 Cal. Rptr. 624 at 628 (Cal. App. 1978). 23. The Michigan statute provides: "If an individual's actual hospital duty does not require a response to the emergency situation, a physician . . . who in good faith responds to a life threatening emergency or responds to a request for emergency assistance in a life threatening emergency within a hospital or other licensed medical care facility is not liable." Michigan Compiled Laws §691.1502. 24. In Pemberton v. Dharmani, 188 Mich. App. 317, 469 N.W.2d 74 (1991), interlocutory appeal, 207 Mich. App. 522, 525 N.W.2d 497 (1994), the plaintiff Denise Pemberton decided to undergo a voluntary tubal ligation. After beginning the surgery. Dr. Sheila Dharmani noticed several pelvic adhesions causing her difficulty locating the left fallopian tube. Dr. Dharmani rang for assistance but no Ob/Gyn doctors inside the hospital were available to respond. Dr. B.N. Zarewych, who had an office near the hospital, left a patient in his own office and responded to the emergency. After the surgery, it was discovered that part of Ms. Pemberton's colon had been accidentally removed instead of the fallopian tube. In the ensuing suit against Dr. Zarewych for malpractice the main issue was whether it must be established that a life threatening emergency actually existed, or whether a good faith subjective belief that a life threatening emergency existed at the time of the initial response was enough to trigger Good Samaritan immunity. Ultimately, the court concluded that a good faith, subjective belief when initially responding to an emergency was enough to warrant Good Samaritan protection. It was not necessary to establish that a life threatening emergency actually existed as long as the physician responded with the belief that a life threatening emergency was present. The court felt that if it adopted the position that the plaintiff suggested it might actually delay responses from physicians. A physician responding to an emergency might want assurance that the emergency was indeed life threatening before coming to render aid and this would simply delay the assistance, defeating the purpose of the statute altogether, and could result in the worsening of patient conditions. 25. 17 Cal.3d 425, 131 Cal. Rptr. 14, 551 P.2d 334 (1976). 26. See, e.g., Bradshaw v. Daniel, 854 S.W.2d 865 (Tenn. 1993). 464 COMMENTARY 27. Landeros v. Rood, 17 Cal.3d 399, 131 Cal. Rptr. 69, 551 P.2d 389 (1976). 28. 102 S. Ct. 2452 (1982); discussed in Wexler, D.B., "Legal Aspects of Seclusion and Restraint," in K. Tardiff (ed.), The Psychiatric Uses of Seclusion and Restraint (Washington, D.C: American Psychiatric Press, 1984), pp. 111-124. 29. Michigan Compiled Laws (MCL) §600.2169 (2005). 30. MCL §600.4901 (2005). 31. MCL §600.1483 (2005). The jury is not informed of the cap (the judge reduces any verdict in excess of the cap). Had the jury known of the cap, it could possibly have increased the economic damages, or possibly imposed exemplary (punitive) damages. 32. MCL §600.2912a (2005). 33. Ibid. 34. MCL §600.2912b (2005). 35. MCL §600.2912c (2005). 36. MCL §600.2912d (2005). An out-of-state affidavit of merit not only must be notarized, but also must be accompanied by a certificate setting forth the notary's authority. Apsey v. Memorial Hospital, Mich. App., Shiawassee Circuit Court, June 9 2005, No. 25110. 37. MCL §600.2912e (2005). 38. MCL §600.2912f (2005). 39. MCL §600.5851, 600.5856, 600.6013, & 600.6304 (2005). 40. MCL §600.6304 (2005). 41. In religion as in law, circumventions are often accomplished by a recategorization. A Jewish joke tells about a religious Jew who on the Sabbath sees a large sack of money lying on the street. Jews are not allowed to handle money on the Sabbath. He prayed and prayed and suddenly, it was Tuesday. 42. Trial attorneys representing plaintiffs in Michigan are outraged by the current holdings of the Michigan Supreme Court. For example, J. Martin Brennan, Jr., a trial attorney and former candidate for the court, says, "Since the conservative majority has taken over the court, the decisions have tendentiously favored . . . insurance companies, doctors [and] hospitals." J.M. Brennan (ltr.), "State's high court GOP," Detroit Free Press, May 18, 2005, p. 10. This state of affairs in Michigan was recently depicted in CBS's 465 "60 Minutes." The columnist Brian Dickerson has urged scrutiny of the way candidates for the court are financed: "Wouldn't it be more efficient, for instance, if insurance companies paid the justices' salaries directly? The companies would save the hassle of laundering payments through the soft-money campaign finance machine, and their carriers in [the state capital] could dispense with the charade of judicial impartiality." B. Dickerson, "Fault lies with justices who pay back insurers," Detroit Free Press, August 8, 2005, p. B-1. 43. The definitive opinion in Michigan distinguishing medical malpractice from ordinary negligence is Bryant v. Oakpointe Villa Nursing Centre, 471 Mich. 411, 684 N.W.2d 864 (2004). In this case, plaintiff Denise Bryant, personal representative of the estate of her deceased aunt, alleged that the defendant Oakpointe Villa Nursing Centre, is responsible for the death of her aunt, who died from positional asphyxiation while in the defendant's care. The plaintiff alleged that the defendant was negligent in several distinct ways: by failing to train its certified evaluated nursing assistants to recognize the risk of positional asphyxiation posed by bed rails; by failing to take adequate corrective measures after finding the aunt entangled in her bedding on the day before her asphyxiation; and by failing to inspect the aunt's bed arrangements to ensure that the risk of positional asphyxia did not exist for the aunt. The Michigan Supreme Court held that the plaintiff's failure-to-train and failure-to- inspect claims sounded in medical malpractice. The plaintiff's claim that the defendant failed to take action after its employees found the aunt entangled in her bedding on the day before her asphyxiation sounded in ordinary negligence. In a dissent. Justice Kelly contended that all of the plaintiff's claims sounded in ordinary negligence. Justice Kelly observed, "The danger here was similar to that experienced by an infant in a crib whose mattress is too small and whose rails allow the baby to slip through. Those caring for such a child would quickly recognize the danger, and an expert would not be required to point it out. Similarly, ordinary jurors can assess whether defendant's caregivers here should have recognized the danger and acted with due care." 471 Mich, at 441. 44. Schwartz, S.S., "Where's Dr. Waldo?" Michigan Negligence Law Section Quarterly, Spring 2004, p. 3. 45. It is also to be noted that Michigan is the only state in the United States that shields pharmaceutical companies from liability if the drug was approved by the Food and Drug Administration (patients can win damages only if they prove a company withheld or misrepresented information about a drug that would cause the FDA to not give or withdraw its approval. Eggert, D. (AP writer), "Questions raised over law that protects drug makers," Detroit Legal s, Jan. 4, 2005, p.l. 466 COMMENTARY 46. 145 N.H. 7, 749 A.2d 301(2000). 47. 5 P.3d 225 (Alaska 2000). 48. See e.g., Rudy v. Meshorer, 146 Ariz. 467, 706 P.2d 1234, 1236-38 (App. 1985) (requiring expert testimony to show that psychiatrist "was negligent in his determination that [decedent] was not suicidal"); Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 111. App.2d 251, 236 N.E.2d 309 (1968) (requiring expert testimony to determine "whether defendant doctors failed to exercise ordinary skill and care in not characterizing decedent as a suicidal risk"); Kanter v. Metropolitan Med. Ctr., 384 N.W.2d 914 (Minn. App. 1986) (recognizing that expert testimony would assist trier of fact in determining whether nurse should have recognized patients' "potential [suicidal] tendencies"); Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387 N.W.2d 486 (1986) (where emergency room patient fell from hospital cart, court refused to find that laypersons could determine whether hospital had duty to restrain or supervise patients on carts). 49. See Paulen v. Shinnick, 291 Mich. 288, 289 N.W. 162 (1939) (where patient leapt from window, "Whether [attendant] should have locked the screen ... or taken some other precaution to prevent plaintiff's escape, is not a question on which a jury requires the advice of trained psychiatrists"); Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743 (1953) (where decedent hung herself with her nightgown, expert testimony not required to determine "whether the patient was reasonably safeguarded and protected, in the circumstances in view of her known condition" because case was not "strictly speaking a malpractice case"); Kent v, Whitaker, 58 Wash.2d 569, 364 P.2d 556 (1961) (action was not a malpractice case where patient with known suicidal tendencies strangled herself with plastic tubing while unattended in unlocked room because it did not concern "improper diagnosis or negligent treatment" but rather "failure of the specific duty of exercising reasonable care to safeguard and protect a patient with known suicidal tendencies from injuring herself"). 50. 69 Cal.2d 420, 71 Cal Rptr. 903,445 P.2d 519 (1968). 51. 193 N.W.2d 98 (Iowa 1971). 52. 179 Atl. 449 (Pa. 1935). 53. 670 N.W.2d 108 (Iowa 2003). 54. 5 Cal. App.4th 234, 7 Cal. Rptr.2d 101 (1992). 55. 741 A.2d 199 (Pa. Super. 1999). 56. 12989 WL 128492 (Tenn., App. 1989). 467 57. 385 Mich. 57, 188 N.W.2d 801 (1971). 58. Breach of contract is frequently alleged in cosmetic surgery cases. In the leading case of Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (1973), the plaintiff recovered on an express warranty theory after alleging that the defendant plastic surgeon had promised to enhance her beauty and improve her appearance. Nevertheless, the court cautioned: "Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value. But patients may transform such statements into firm promises in their own minds, especially when they have been disappointed in the event." See Holder, A.R., "Plastic Surgeon's Liability in Cosmetic Surgery Cases," 22 Am. Jur. Proof of Facts 2d 721; Tierney, K., "Contractual Aspects of Malpractice," Wayne L. Rev. 19(1973):1457. 59. See, e.g., Epstein, J., "Contracting Out of the Medical Malpractice Crisis," Perspectives in Biology & Medicine 20(1977):228; Epstein, J. , "Medical Malpractice: The Case for Contract," Am. Bar Found. Res. J. 1976:87; Havighurst, CC, "Altering the Applicable Standard of Care," Law & Contempt. Prob. 49(1986):265. Waldo?" Michigan Negligence Law Section Quarterly, Spring 2004, p. 3. 45. It is also to be noted that Michigan is the only state in the United States that shields pharmaceutical companies from liability if the drug was approved by the Food and Drug Administration (patients can win damages only if they prove a company withheld or misrepresented information about a drug that would cause the FDA to not give or withdraw its approval. Eggert, D. (AP writer), "Questions raised over law that protects drug makers," Detroit Legal s, Jan. 4, 2005, p.l. 466 COMMENTARY 46. 145 N.H. 7, 749 A.2d 301(2000). 47. 5 P.3d 225 (Alaska 2000). 48. See e.g., Rudy v. Meshorer, 146 Ariz. 467, 706 P.2d 1234, 1236-38 (App. 1985) (requiring expert testimony to show that psychiatrist "was negligent in his determination that [decedent] was not suicidal"); Dimitrijevic v. Chicago Wesley Mem'l Hosp., 92 111. App.2d 251, 236 N.E.2d 309 (1968) (requiring expert testimony to determine "whether defendant doctors failed to exercise ordinary skill and care in not characterizing decedent as a suicidal risk"); Kanter v. Metropolitan Med. Ctr., 384 N.W.2d 914 (Minn. App. 1986) (recognizing that expert testimony would assist trier of fact in determining whether nurse should have recognized patients' "potential [suicidal] tendencies"); Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387 N.W.2d 486 (1986) (where emergency room patient fell from hospital cart, court refused to find that laypersons could determine whether hospital had duty to restrain or supervise patients on carts). 49. See Paulen v. Shinnick, 291 Mich. 288, 289 N.W. 162 (1939) (where patient leapt from window, "Whether [attendant] should have locked the screen ... or taken some other precaution to prevent plaintiff's escape, is not a question on which a jury requires the advice of trained psychiatrists"); Stallman v. Robinson, 364 Mo. 275, 260 S.W.2d 743 (1953) (where decedent hung herself with her nightgown, expert testimony not required to determine "whether the patient was reasonably safeguarded and protected, in the circumstances in view of her known condition" because case was not "strictly speaking a malpractice case"); Kent v, Whitaker, 58 Wash.2d 569, 364 P.2d 556 (1961) (action was not a malpractice case where patient with known suicidal tendencies strangled herself with plastic tubing while unattended in unlocked room because it did not concern "improper diagnosis or negligent treatment" but rather "failure of the specific duty of exercising reasonable care to safeguard and protect a patient with known suicidal tendencies from injuring herself"). 50. 69 Cal.2d 420, 71 Cal Rptr. 903,445 P.2d 519 (1968). 51. 193 N.W.2d 98 (Iowa 1971). 52. 179 Atl. 449 (Pa. 1935). 53. 670 N.W.2d 108 (Iowa 2003). 54. 5 Cal. App.4th 234, 7 Cal. Rptr.2d 101 (1992). 55. 741 A.2d 199 (Pa. Super. 1999). 56. 12989 WL 128492 (Tenn., App. 1989). 467 57. 385 Mich. 57, 188 N.W.2d 801 (1971). 58. Breach of contract is frequently alleged in cosmetic surgery cases. In the leading case of Sullivan v. O'Connor, 363 Mass. 579, 296 N.E.2d 183 (1973), the plaintiff recovered on an express warranty theory after alleging that the defendant plastic surgeon had promised to enhance her beauty and improve her appearance. Nevertheless, the court cautioned: "Statements of opinion by the physician with some optimistic coloring are a different thing, and may indeed have therapeutic value. But patients may transform such statements into firm promises in their own minds, especially when they have been disappointed in the event." See Holder, A.R., "Plastic Surgeon's Liability in Cosmetic Surgery Cases," 22 Am. Jur. Proof of Facts 2d 721; Tierney, K., "Contractual Aspects of Malpractice," Wayne L. Rev. 19(1973):1457. 59. See, e.g., Epstein, J., "Contracting Out of the Medical Malpractice Crisis," Perspectives in Biology &