• May 31, 2019

The AMA Opposes Lawsuit Abuse Against Physicians….

Now there’s a controversial take, right? An industry trade association against “lawsuit abuse” of its members?

Seriously, everyone everywhere opposes “lawsuit abuse against physicians.” Does this overblown rhetoric serve any purpose aside from venting outrage and causing a spike in blood pressure?

Has the Minnesota Supreme Court, in fact, given carte blanche to plaintiffs’ lawyers to engage in “lawsuit abuse against physicians”?

The Minnesota Supreme Court decided Warren v. Dinter last month. The decision is being treated by physicians and the medical malpractice defense bar as a devastating legal development.

“Imagine,” some are lamenting, “offering a casual comment at a dinner party — say, about someone’s labored breathing or a skin blemish — and being sued for a ‘misdiagnosis’ when there was never any physician-patient relationship…” (the proverbial “curbside consultation” (see here at p. 15)).

Even worse, “Imagine being sued by a patient whom you never saw or treated!” (see here, page 1 of the dissent, page 20 of the PDF).

Oh, come on. Stick to the facts in Warren v. Dinter (though they do include potential liability for a healthcare decision about a person whom the doctor never saw).

In Warren v. Dinter, a nurse practitioner saw Ms. Warren, a 54 year-old woman, and believed that Ms. Warren needed to be hospitalized based on a series of tests the nurse ordered (“unusually high levels of white blood cells, as well as other abnormalities” (here at p. 3)). The nurse called Dr. Dinter, a “hospitalist,” to get Ms. Warren admitted into the hospital.

Dr. Dinter concluded that Ms. Warren did not need to be admitted.

The nurse sent Ms. Warren home and she was found dead in her home three days later, having died of sepsis caused by an untreated staph infection. One expert was prepared to testify at trial that Ms. Warren would have survived had she been admitted. Another expert was prepared to testify that she would not have.

Let’s start with the obvious: this is not the “curbside consultation” scenario. (“We have not previously addressed the legal status of curbside consultations, and we have no need to do so here” (here at p. 16)). Dr. Dinter decided whether to admit a patient into the hospital. This was not a random chat on a street-corner.

As for the point about being sued by a patient whom a physician never saw nor treated, in a vacuum, presumably this seems troubling to many readers. But apparently our medical system is set up so a doctor has the job of gatekeeper for hospital admission for people whom the doctor has neither seen nor treated. What if the doctor is horrible at that task and people die as a result? Should that doctor be immune from lawsuits for the doctor’s errors because the doctor never saw or treated the patient? Why put a doctor in the position of being the gate-keeper if not to apply medical expertise? If it is to apply medical expertise, why not hold the doctor responsible to fulfill those responsibilities competently?

As often happens in reading judicial decisions, the lack of what we view as critical facts hampers our ability to fully evaluate the claims and defenses.

The nurse and the doctor give sharply different testimony as to what, exactly, the two said in their telephone conversation. One could spin the unclear facts in either side’s favor. Choosing between duelling narratives would sharply change decision-makers’ view of the doctor’s responsibility for Ms. Warren’s death.

The doctor said that the call, from his perspective, was simply for him to give his “reaction” as a “professional courtesy” (here at p. 6). Elsewhere in the decision, however, it seems that this spin was misleading, at best. The nurse literally could not get the patient into the hospital without a doctor’s authorization, which the nurse had sought and been denied from Dr. Dinter (here at pp. 14-15).

As the majority of the Minnesota Supreme Court pointed out, the issue before the court was foreseeability. Is it foreseeable that a doctor who controls admission into a hospital could harm a patient by negligently denying admission? How can the answer be anything but, “yes”?

Do not read this to mean that we think Dr. Dinter was negligent. We have no idea. We have not seen any evidence or heard any testimony. The question before the Minnesota Supreme Court, however, is not case-specific. The question is whether a doctor, whose job is to be a hospital admission gate-keeper, can be held liable for professional negligence if he deviates from the standard of care and, as a result, another person suffers injury (or death).

Justice Anderson’s dissent gets into the weeds and details of communications between the nurse and the doctor (see here, page 1-2 of the dissent, pages 20-21 of the PDF) portraying a muddy and complicated scenario. This makes readers very sympathetic to Dr. Dinter but misses the point. The case is before the Minnesota Supreme Court on a legal issue, not to spin the facts and supplant a jury’s decision as to the facts.

Justice Anderson’s dissent continues:

[T]he record contains no evidence from which we can infer that it was reasonably foreseeable to [the hospitalist] that [the nurse’s] single phone call and limited disclosure of information regarding [the nurse’s] patient would be determinative in preventing further care for Warren, including hospitalization, if that is what the professional who was actually treating Warren—[the nurse] —deemed necessary for her patient…[I]t is objectively unreasonable to pin on [the hospitalist] the foreseeability of harm to Warren.

(See here, page 5 of the dissent, page 24 of the PDF)

In other words, it seems that the issue with Justice Anderson (and, perhaps the AMA), is that the nurse, the person who is directly and personally interacting with the patient should be the one responsible. If the doctor, who does not have the benefit of personal contact, made a bad call, the responsibility rested solely on the nurse to seek other avenues toward admission of the patient to a hospital.

This seems to us like a boss, denying an underling’s request about a third-party, resulting in a bad outcome for the third-party, and then faulting the underling for the bad outcome and arguing that the boss cannot be liable because the boss never even met the third party.

This defense, in a particular case, and maybe in this case, could have merit. It depends on the details, the facts. As a general matter, however, it would seem imprudent and unjust to insulate “the boss” from liability because he or she “never even met” the third party.

In the end, we agree with Justice Anderson’s dissent when we says, “Factually, the court’s analysis is not complicated” (see here, page 4 of the dissent, pages 23 of the PDF) We disagree with Justice Anderson’s dissent, however, because we think that the court’s analysis is not only uncomplicated but is also correct.

DISCLAIMER: Given the outcry by the A.M.A., by doctors, and by the medical malpractice defense bar, we recognize that we might have a fundamental misunderstanding of the underlying realities in the healthcare community with regard to the division and allocation of duties and responsibilities as between and among “hospitalists,” “treating healthcare providers,” “nurses,” and, for all we know, several other professional decision-makers. Maybe the Supreme Court’s decision is truly disastrous. We, and, in fact, the Minnesota Supreme Court or any other legal commentators or decision-makers, are often hobbled in our decision-making, by our relatively narrow and uninformed perspectives. Fortunately for our medical community, it has many avenues to remedy a disaster, when it really faces one.

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