Res ipsa loquitur is one of those archaic Latin phrases that actually has meaning in the present day. Literally, it means that the thing speaks for itself. What’s “the thing”? Negligence. When an injury occurs that could not have happened in the absence of negligence, and the instrumentality causing the injury is in the exclusive control of the defendant, or wrong-doer behind the action, a fact finder may infer that the defendant was, in fact, liable. Black’s Law Dictionary, 1979, West Publishing Co., p. 1173. In terms of medical malpractice, a physician has to make a hell of a mistake to warrant having this label applied to his or her work. And that is why the theory is rarely used, and even more rarely taken seriously by judges.
But earlier this month in the Bronx, Justice Stanley Green found it applicable in the case of Crispin v. Hostin. The plaintiff came to orthopedist Dr. Hostin for repair of a meniscus tear, and of a partial ACL tear (anterior cruciate ligament) in her right knee. Dr. Hostin initialed plaintiff’s right knee prior to the surgery when plaintiff reported for her procedure, and then began surgery on another patient. Unfortunately, the plaintiff awoke from anesthesia to find that the surgery had been performed on her left knee, instead of the intended right knee. Dr. Hostin’s explanation? When he finished the earlier patient’s surgery and entered the operating area where plaintiff lay, he saw that the surgery had already been started by his physician assistant (PA), saw a torn meniscus in the live video of the procedure, and figured he would just direct his PA in how to complete the procedure. Only after completion of the wrong-site surgery did Dr. Hostin realize that something had gone wrong. (The other defendants were PA Katanov, and the surgical facility, Surgi-Care.)
In a rare move, plaintiff’s counsel made a summary judgment motion, before any trial, asking the Court to find Dr. Hostin negligent based on the doctrine of res ipsa loquitur, on the gournds that: “(1) surgery to the wrong knee does not occur in the absence of negligence/malpractice; (2) the ‘event’ (surgery on the wrong knee) was caused by, and solely due to, defendants while she was under their control; and (3) plaintiff (who was anesthetized and/or asleep during the surgery) played no part in the error.” Defendants’ responses to plaintiff’s motion were unconvincing to Justice Green, to say the least. For the PA to operate on the wrong leg, despite the orthopedist’s markings, was “negligent as a matter of law.” For the Surgi-Care staff to hold a “time-out” procedure, and still verify the wrong leg as the operative one, was also “negligent as a matter of law.” For Dr. Hostin to argue that his care conformed to the standard of care under the circumstances was “ludicrous.” (Dr. Hostin had argued, among other things, that because the video screen showed a torn meniscus when he arrived in plaintiff’s operating room, which was consistent with the pre-operative diagnosis, he acted properly under the circumstances.) And so Justice Green ruled that on the issue of liability, plaintiff has already won.
Most medical malpractice cases are not so black and white. But when they are, it makes sense to move for summary judgement on liability, because it will often save time and money that would otherwise need to to be spent before resolving the case.
Like most practitioners of a specialty that requires the constant purchase and review of medical records, I had come to assume that I was lucky if the medical records company, or the hospital, charged me $.75 per page for the 500-page record I needed. That meant that someone had actually read the part of my request letter stating that they could not charge me more than $.75 per page, pursuant to New York’s Public Health Law, Section 18(2)[e]. Too often, providers would charge much more, and I would have to write back, asking them to lower their price so that it was in line with the PHL.
I had always thought that $.75 per page was a lot to pay for something that probably costs no more than a few cents at the provider’s end. And I have never been a fan of the so called “search fees” the providers like to charge, as they are arbitrary and unpredictable. I have heard grumbling from fellow lawyers on both sides–plaintiff’s and defense–for years about the painfully high cost of amassing the roomfuls of medical records necessary to prosecute and defend our cases. One of my colleagues on the New York City Bar’s Medical Malpractice Committee has drafted legislation intended to make the costs fairer and more predictable. But not much has happened to change things, until now.
Last week, Judge Michael Telesca, of the Western District of New York, issued a decision denying defendants’ motion to dismiss in the case of McCracken v. Verisma Systems, Inc., 6:14-cv-06248, NYLJ 1202737705857 (WDNY 2015). The defendants are providers of medical records, while the plaintiffs are patients who received medical treatment at the defendant facilities, and claimed that defendants overcharged them for copies of their medical records. The defendants charged the plaintiffs $.75 per page for their records. The relevant part of the statute is: “(e) The provider may impose a reasonable charge for all inspections and copies, not exceeding the costs incurred by such provider…However, the reasonable charge for paper copies shall not exceed seventy-five cents per page… ” NY PHL Section 18(2)[e].
Plaintiffs argued that the PHL allows providers to collect a reasonable charge for copies, provided it (1) does not exceed the costs incurred by the provider, and (2) does not exceed $.75 per page of records. Id. at 11-12. Defendants argued that the PHL sets $.75 as a “presumptively reasonable price,” so that if a provider’s copying costs were less than $.75, the provider can go ahead and charge $.75 anyway. Id. at 11-12. Judge Telesca noted that defendants’ argument “effectively allows healthcare providers to make a profit on copying medical records if they can keep their actual copying costs under $0.75 per page.” Id. at 11-12. He found that defendants’ interpretation of the PHL “misreads the statute,” as such providers may not charge more than their actual costs, and even that is capped at $.75 per page. Id. at 11-12. Judge Telesca invited defendants to submit documentary evidence of actual costs incurred. Id. at 11-12.
So what are we going to do the next time we request medical records, people? Are we going to accept the going rate of $.75 per page, or are we going to fight, and use Judge Telesca’s words as our sharpest weapon?
Seventh Amendment – Civil Trials. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
The key phrase is “the right of trial by jury shall be preserved.” That right is vital to victims of medical malpractice for at least two reasons. First, medical malpractice plaintiffs deserve to have their cases heard in the fair and impartial manner that only a judge and jury can provide, before whom both sides get to present evidence in support of their cases. Second, medical malpractice plaintiffs deserve to have a jury decide the amount of compensation required to make a particular plaintiff whole, though many states have imposed limits, or “caps” on damages that can be awarded, which infringes on the jury’s function.
But there is a disturbing aspect of the jury trials to which medical malpractice victims are entitled, and hold dear: jury nullification, commonly defined as follows:
Jury nullification occurs when a jury returns a verdict of “Not Guilty” despite its belief that the defendant is guilty of the violation charged. The jury in effect nullifies a law that it believes is either immoral or wrongly applied to the defendant whose fate they are charged with deciding.
The term has always been applied in the context of criminal cases, and has usually been associated with positive results and just outcomes. But this has not always been the case. For instance, racist southern juries have used nullification to clear defendants of any responsibility for hate crimes.
The problem for medical malpractice plaintiffs is that more and more, jurors have resorted to nullification to clear doctors and hospitals that have clearly committed malpractice, according to the evidence. The reasons for this trend are many. Some jurors believe that they will somehow end up “paying for” a verdict against a health care provider. They fear health insurance rates will go up and doctors will flee from their state–mostly unrealistic fears created and publicized by the tort reformers who exist to protect corporate profits over patient safety. Some see physicians as just a step down from gods, and cannot bring themselves to allow justice for a wronged patient if it means something negative happening to a medical professional. And despite the best efforts of plaintiff’s lawyers to discover these biases during jury selection, many such people end up on too many juries. Moreover, the existence of these nullification trends are the worst-kept secret in the court system. I can’t tell you how many times I’ve been in particular venues that are known for not being “friendly” to plaintiffs, where the judge that my case gets assigned to calls the lawyers up for a bench conference, and in an effort to force an early, low-value settlement, says, “Mr. Barovick, I understand you feel you have a strong case, but remember, this is ___________.”
Allow me to translate. The judge has just told me that jurors in her county don’t like plaintiffs or their lawyers, and are extremely reluctant to find against anyone that has an M.D after their name. In other words, I have been told that I am going to lose the case if I insist on going through with the trial, so I might as well take the low offer being held out by the insurance company’s lawyer now, because something is better than nothing.
And usually, the judge is right. So when you hear, year after year, that of the medical malpractice cases that go to trial, most of them are lost, you can factor jury nullification into the equation. In these hard economic times, most plaintiff’s lawyers are too smart to waste their time and significant outlays of money on so-called “frivolous” cases. In addition to working hard to prepare their case for trial, they are also rolling the dice, and hoping for the best. Unfortunately, jury nullification often makes those efforts fruitless, and leaves clients who have been devastated by medical error wondering why justice has left them behind. That is criminal.