HEALTHCARE LAW ARTICLES 2013files.ctctcdn.com/feb91b43201/fa6c71ee-2fa0-4c05-90e4-94...3 | P a g e 41A.035 (2004). Defense attorneys point to these arguments and conclude that the

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HEALTHCARE LAW ARTICLES 2013

Nevada Courts Struggle With The Noneconomic Damages Cap In Medical Malpractice Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Defending Against Time-Barred Professional Liability Claims: When A Defendant May Sue a Plaintiff For Malicious Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

4

Defense Strategies For Depositions In Medical Malpractice Cases . . . . . . . . . . . . 6

“But For” Test Meets The “ACA” – A Primer In Calculating Damage Claims Under The Affordable Care Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

8

The Importance of Indemnity Provisions In Healthcare Network Provider and Third Party Service Contracts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Professional Negligence Versus Ordinary Negligence: Flores v. Presbyterian Intercommunity Hospital . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

Is An Expert Witness Potentially Liable for Rendering Defamatory Testimony? . . 13

Life In The Fact Lane: Preference In Trial Settings . . . . . . . . . . . . . . . . . . . . . . . . . 15

Evidentiary Concerns Over Tort Liability For Plaintiffs’ Medical Expenses . . . . . 17

Protecting Our Clients’ Rights In The Course Of Discovery . . . . . . . . . . . . . . . . . 19

Expert Declarations Must Explain The Basis For All Opinions In A Summary Judgment Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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NEVADA COURTS STRUGGLE WITH THE NONECONOMIC DAMAGES CAP IN MEDICAL MALPRACTICE CLAIMS

© Burak S. Ahmed Attorney, Kramer, deBoer & Keane, LLP

More than twelve years after the Nevada Legislature passed a law capping noneconomic damages in medical malpractice actions to $350,000, trial courts are still wrestling with the question of whether the cap applies per-incident or whether the cap applies separately to each plaintiff. Stated differently, can each heir in a wrongful death action against a doctor recover noneconomic damages up to the statutory limit of $350,000? Or do the heirs have to “split the pie?”

The uncertainty is based upon the language of NRS 41A.035 which states: “In an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages in such an action must not exceed $350,000.”

At this time, Nevada trial courts are issuing conflicting rulings. In 2007, District Court Judge Steven

P. Elliott, Second District, found the cap applied to the heirs collectively. See Order at 6, Sieben v. Lifecare Hosps. Of Nev., Inc., No. CV-06-00864 (Nev. Dist. Ct., Apr. 9, 2007), 2007 WL 7266257 at *4 (stating the law requires all the heirs to bring their claims in the same action). Similarly in 2010, District Court Judge Stefany Miley, Eighth District, found that the cap applied to the entire incident. See Villegas v. Sheikh, M.D., 2010 WL 3711512 (Nev. Dist. Ct., Jan. 7, 2010).

Weeks later, however, District Court Judge Mark Denton, Eighth District, disagreed with his

colleagues and found that each plaintiff had a separate cause of action and therefore each plaintiff could recover up to the statutory cap. See Order at 2, Tremblay v. Blanco-Cuevas, No. A577086 (Nev. Dist. Ct. Jan. 25, 2010).

The difference in rulings exists because a similar type of statutory cap limits damages in actions

against governmental entities. In those cases, the Nevada Supreme Court holds that the cap applies separately to each plaintiff. See e.g., State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). Nevada plaintiffs’ attorneys point to these precedents and argue that the same rational should apply to medical malpractice actions.

Defense lawyers, on the other hand, argue the legislature intended for damages to be capped for

the entire incident. The law was drafted in 2002 in response to a perceived crisis in the cost of medical malpractice insurance causing a shortage of doctors. See Joelle Babula, “Medical Malpractice Insurance Crisis: Guinn Might Call Special Session,” Las Vegas Review-Journal (June 11, 2002) at A1. The law was enacted under the platform to “Keep our Doctors in Nevada” because doctors complained they were being forced to leave the state, retire early, or limit their services because they could not afford medical malpractice coverage. Finally, the legislature amended the law in 2004 to remove language stating “to each plaintiff from each defendant” and replaced it with “action.” Compare NRS 41A.031 (2002) to NRS

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41A.035 (2004). Defense attorneys point to these arguments and conclude that the legislature intended for the cap to apply to the entire incident.

California—our sister state—decided the issue of a similarly worded statute and held that the cap

applies to the entire incident in wrongful death actions, but per-plaintiff in loss of consortium actions. Compare Yates v. Pollock, 194 Cal.App.3d 195, 239 (1987) (holding statutory cap applies to all plaintiffs in the aggregate in wrongful death action) to Atkins v. Strayhorn, 223 Cal.App.3d 1380, 1395 (1990) (holding statutory cap applies separately to a spouse’s claim for loss of consortium).

Both sides present compelling arguments that can only be answered by the Nevada Supreme

Court, who has declined to answer the question at least twice. See Universal Health Servs. Found. v. Eighth Judicial Dist Court ex rel. County. of Clark, No. 62209 (Nev. Feb. 15, 2013); see also Villegas v. Eighth Judicial Dist. Ct. ex. Rel. County. of Clark, No. 55825 (Nev. May 3, 2012). The Nevada Supreme Court apparently will not revisit this issue until it has no other choice but when it does, it will have serious ramifications for attorneys, parties, and the medical and insurance industries in Nevada as a whole.

CAVEAT: THE FOREGOING DOES NOT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT AN ATTORNEY FOR INDIVIDUAL ADVICE REGARDING

INDIVIDUAL SITUATIONS.

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DEFENDING AGAINST TIME-BARRED PROFESSIONAL LIABILITY CLAIMS: WHEN A DEFENDANT MAY SUE A PLAINTIFF FOR MALICIOUS PROCECUTION © Maria Chaves Attorney, Kramer, deBoer & Keane, LLP

Successfully defeating a Professional Liability lawsuit through an early pretrial motion, either

because the statute of limitations expired before the complaint was filed or else a required Notice to Sue1 was not timely served, is always a preferred litigation strategy for the defense. But does a successful resolution also entitle the defendant to sue the original plaintiff for malicious prosecution?

The answer is: it depends. Under some circumstances, a defendant-turned-plaintiff may sue the

party who filed the original lawsuit, as well as the original plaintiff’s attorney. In some cases, the defendant-turned-plaintiff may even recoup punitive damages, but under limited circumstances.

An attorney representing the original plaintiff may be immune from liability if there was probable

cause for filing the untimely complaint. After conducting a thorough factual investigation and legal research as the circumstances reasonably warrant, the attorney might have considered the action to be tenable on the theory advanced. However, an example of an incomplete investigation is recounted in Williams v. Coombs,2 where a patient’s daughter sued a physician for wrongful death after he allegedly failed to recognize that her mother was a suicide risk and she hung herself while under a protective 72-hour hold. The physician won at trial, and then sued both the plaintiff and her attorney for malicious prosecution and intentional infliction of emotional distress. The Court found that the attorney lacked probable cause to file the wrongful death suit because he had nor reviewed the medical chart thoroughly and had consulted a medical expert solely during an informal chat on the golf course.

A lawsuit which is time-barred is not legally tenable, so if the statute of limitations expired before

the complaint was filed, there is no probable cause for filing the lawsuit.3 That is a clearer example where the defendant may have sufficient legal cause to sue the untimely plaintiff for malicious prosecution.

However, if the original case was defensed due to a successful statute of limitations argument, this

may present a problem for a defendant-turned-plaintiff. For a malicious prosecution action to prevail, there must have been a favorable termination of the underlying lawsuit on the merits.4 Defensing the underlying case based on a statute of limitations argument is not a favorable termination for the purposes of a malicious prosecution suit because it does not reflect upon the merits of the underlying case.5 But there may be an exception when “defendants prosecuted the underlying action for medical malpractice knowing the term of the applicable statute of limitations had run.”6 Some California courts have interpreted this

1 For example, California Code of Civil Procedure § 364 mandates that a plaintiff may not sue a health care provider for

professional negligence unless the defendant has been given at least 90 days’ prior notice of the intent to sue. 2 Williams v. Coombs, 179 Cal.App.3d 626 (1986). 3 Sheldon Appel Co. v. Albert & Oliker, 47 Cal.3d 863, 885 (1989); Klein v. Oakland Raiders, Ltd. 211 Cal.App.3d 67,

74-75 (1989). 4 Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at 871; Bertero v. National General Corp. 13 Cal.3d 43, 50

(1974). 5 Lackner v. LaCroix, 25 Cal.3d 747, 752 (1979). 6 Id., 25 Cal.3d 747, footnote 3, emphasis added.

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exception to apply only to the probable cause element and suggest that if a plaintiff wants to bring a malicious prosecution suit, he must “eschew the procedural defense . . . and obtain a favorable judgment on the merits.” 7

If the defendant who prevails in the underlying action has suffered stress due to defending the

underlying suit, or injury to his reputation or practice, or both, he likely will not have a problem proving damages,8 and may pray for punitive damages if he has a reasonable belief that the filing of the underlying Complaint was malicious. While the existence of malice needed to satisfy the elements of malicious prosecution may be inferred from a lack of probable cause, 9 malice-in-fact must be shown for the purposes of alleging and proving a claim for punitive damages.10

If the above circumstances exist, the defendant must act quickly in order to sue the original plaintiff.

A cause of action for malicious prosecution accrues upon favorable termination of the underlying action11 and the statute of limitations for suing the improper plaintiff will terminate within one year of that date.12

CAVEAT: THE FOREGOING DOES NOT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT AN ATTORNEY FOR

INDIVIDUAL ADVICE REGARDING INDIVIDUAL SITUATIONS.

7 Warren v. Wasserman, Comden & Casselman, 220 Cal.App.3d 1297, 1303 (1990), ellipses added. 8 Harbor Ins. Co. v. Central National Ins. Co., 165 Cal.App.3d 1029, 1036 (1985); Bertero v. National General Corp., 13

Cal.3d 43 at 51. 9 Bertero v. National General Corp., 13 Cal.3d 43 (1974).. 10 Id., 13 Cal. 3d at 65. 11 Harbor Ins. Co. v. Central National Ins. Co., 165 Cal.App.3d 1029 at 1037. 12 Goehring v. Wright, 858 F. Supp. 989 (N.D. Cal. 1994); Feld v. Western Land & Development Co., 2 Cal.App.4th

1328 (1992).

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DEFENSE STRATEGIES FOR DEPOSITIONS IN MEDICAL MALPRACTICE CASES © Maria Chaves Attorney, Kramer, deBoer & Keane, LLP

Representing hospitals in litigation can present a unique set of problems for an attorney. For example, if a hospital employee who was a percipient witness during a patient’s hospital stay has since moved into a different position, should he or she be questioned about his or her new position during his deposition?

During a deposition, the permissible scope of examination is extremely broad. The deposing party

may ask almost anything they please and unless the information sought is privileged, there is simply not much the deponent’s counsel may do about it. Of course, the deponent’s counsel can and should make objections when appropriate, but since the rules of evidence are so relaxed, in most cases, after the objections are made, the deponent will be permitted to answer.

So what options are left for the deponent’s attorney? Taking the example above, questions about

the new position are seemingly obviously irrelevant. Additionally, depending on what the employee’s current position is, objections may be made on the basis of Evidence Code Section 1151, which prohibits evidence of subsequent remedial measures to prove negligence or wrongdoing, or on the basis of the deponent’s right to privacy.

If the attorney wishes to instruct the deponent not to answer, he or she faces the possibility of a

motion to compel, which will likely be granted if the information is not privileged.13 Aside from the familiar privileges of self-incrimination, attorney-client, spousal communications, and physician-patient, among others, there are two that may be useful in this situation. Trade secrets are privileged under Evidence Code Section 1060 especially, for example, if the employee has moved to an upper level administration or executive position. Article 1, Section 1 of the California Constitution grants a qualified privacy privilege. However, disclosure may be compelled by the Court if the interests of justice in a party obtaining the information outweigh the constitutional privacy protection.14

In order to determine whether to permit a witness to avoid discovery of arguably private

information, under state constitutional right of privacy, a court must determine whether the witness possesses a legally protected privacy interest, whether there is a reasonable expectation of privacy under the circumstances, and whether the invasion of privacy is serious. If so, the court must balance the privacy interest at stake against other competing or countervailing interests such as the interest of the requesting party, fairness to the litigants, and the consequences of granting or restricting access to the information.15

Alternatively, if the deposing party delves into a line of questioning which is unrelated to the subject

matter of the litigation, it can be become oppressive. Taking our example above, an employee may feel

13

Code of Civil Procedure Section 2025.480(a). 14 See, e.g., Gonzalez v. Superior Court, 33 Cal.App.4th 1539, 1548 (1995). 15

See, e.g., Puerto v. Superior Court, 158 Cal.App.4th 1242 (2008).

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uncomfortable discussing his or her current employment and duties if they seem unrelated to the reason for his or her deposition, especially if the deposing party is relentless in questioning. Thus, a line of questioning can be irrelevant to the point of harassment. At that point, a deponent’s counsel may stop the deposition and move immediately for a protective order.



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‘BUT FOR” TEST MEETS THE “ACA” – A PRIMER IN CALCULATING DAMAGE CLAIMS UNDER THE AFFORDABLE CARE ACT

© Deborah Olsen deBoer

Partner, Kramer, deBoer & Keane, LLP

California Code of Civil Procedure Section 3333.1 allows health care defendants in a medical malpractice case to introduce evidence that medical expenses were, in fact, paid and will be paid by some form of insurance. This article focuses on the use of this legislatively enacted law to convince a jury to decide how to apply a collateral source in the calculation of damages, specifically, the benefits to be available under the “Patient Protection & Affordable Care Act of 2010,” more commonly referred to as the “Affordable Care Act” (ACA).

Already held to be the “law of the land” and constitutional in National Federation of Independent

Business vs. Sebelius,132 S. Ct. 2566 (2012), what is now left is the enforcement of the ACA which can result in the reduction, or even elimination, of future medical care costs as an element of damages in a medical malpractice case in California. In October 2010, California enacted the “California Preexisting Insurance Plan” (CPIP) to cover previously uninsured persons until the ACA becomes effective. Thus, soon if not already, every patient will have medical insurance. Upon implementation of the ACA, an essential health benefits package that provides a comprehensive set of services at an annual cost sharing of $5,950 per individual and $11,900 per family, will be available to all Americans.

Once the ACA is fully implemented, everyone will be insured by law. There then should be no reasonable argument as to why any medical malpractice defendant found liable should be required to pay either future medical expenses or the premiums for the medical insurance that will cover those expenses, inasmuch as the plaintiff/patient would have had to pay the federally mandated and capped insurance premiums anyway. Always available as an alternative argument would be that the most a medical malpractice defendant would be required to pay would be the plaintiff’s projected insurance premiums, which per the ACA will be capped for an individual at $5,950.

The potential effects of the ACA on the award of life care expenses may be huge. The role of the

life care planner should evolve into determining which life care expenses are covered under the ACA and which comprise additional expenses beyond those covered by health insurance. The analysis will include applying the “but for” principle to insure that the life care plan includes only medical services that are outside the common routine medical needs of every individual. Even with these segregated, the argument exists that the ACA will cover the costs, bringing this element of damages to zero or only to include the premiums over the lifetime of the injured plaintiff, truly an arguably significantly smaller amount than the forecasted cost of care. For example, any life care plan which includes medical related expenses covered by the ACA in excess of $5,950 would be zeroed out after $5,950, saving potentially thousands if not hundreds of thousands of dollars a year.

Typically, one of the more expensive aspects of a plaintiff’s life care plan is the need for full time

care in either an assisted living or skilled nursing facility. In these situations application of the “but for” principle becomes essential to a reduction or even zeroing out of costs. The plaintiff, no doubt would have still required food and shelter, thus the damages are not the annual cost of the facility, but the difference

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between the expensive accommodations and the less expensive expenses the plaintiff would have required “but for” the medical malpractice. Thus, we may even be able to reduce the otherwise uncovered expenses in the life care plan using the analogy of the “but for” principle as applied to the ACA when assessing the future medical cost aspect of special damages.

This evidence and these arguments have been successfully introduced and argued in a few courts

in California. The evidence was placed before the jury through the cross-examination of the plaintiff’s life care planner and the direct examination and reports prepared by the defense life care planners. This information can equally be presented to any mediator during the course of mediation to assist in the reduction of future medical costs and the ultimate settlement of the case. While the implementation of the ACA remains unclear, particularly in light of the July 2, 2013 announcement by the White House delaying the mandate that certain employers provide health insurance coverage for their employees for another year, the ACA remains the “law of the land,” ripe for application in this field of litigation.

CAVEAT: THE FOREGOING DOES NOT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT AN

ATTORNEY FOR INDIVIDUAL ADVICE REGARDING INDIVIDUAL SITUATIONS.

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THE IMPORTANCE OF INDEMNITY PROVISIONS IN HEALTHCARE NETWORK PROVIDER AND THIRD PARTY SERVICE CONTRACTS

© Erik S. Laakkonen

Attorney, Kramer, deBoer & Keane, LLP

An indemnification clause recently inserted into UnitedHealth Military and Veterans (‘UMVS’) TRICARE

network provider contracts should serve as a reminder to healthcare providers to review any and all provider and third party services contracts to: (1) evaluate the scope of any indemnification clauses contained therein; and to (2) communicate the existence and scope of those indemnification provisions with the provider’s medical professional liability insurer to assess whether any potential gaps in professional liability insurance coverage exist and determine with the insurer the best way to address same.

This “broad” TRICARE indemnification provision was first reported by the California Medical Association (“CMA”). However, the exact language was not disclosed. Title 32 Code of Federal Regulations Section 199.17(p)(1), which references the Civilian Preferred Provider Network, authorizes the inclusion of the indemnification provision as follows:

Although network providers must follow numerous rules and procedures of the TRICARE program, on matters of professional judgment and professional practice, the network provider is independent and not operating under the direction and control of the Department of Defense. Each preferred provider must have adequate professional liability insurance, as required by the Federal Acquisition Regulation, and must agree to indemnify the United States Government for any liability that may be assessed against the United States Government that is attributable to any action or omission of the provider.

The CMA has advised that the language of the TRICARE indemnification provision varies from the

regulatory language and is subject to interpretation; however, the clause might expose the physician to liability that is not covered by his or her professional liability insurance policy. Providers should understand that contractual indemnity provisions, with TRICARE or with other third parties, would generally be excluded from coverage under professional liability insurance policy language.

Although it is unlikely that the TRICARE contractual indemnity provision would result in an exclusion from coverage, since professional liability insurance policies provide coverage for exposure stemming from conduct of the physician while rendering professional medical services, the physician would be well advised to notify his or her insurer of the TRICARE indemnity provision and discover what, if any, impact it has on medical professional liability coverage.

It would also be wise for the healthcare provider to review any and all contracts entered into with third parties to determine whether they contain a contractual indemnity provision, and to communicate such information to his or her insurer, again, to learn what, if any, effect those provisions will have on the physician’s medical professional liability coverage. The physician might also wish to seek the advice of counsel concerning a contractual indemnity provision discovered in an existing or proposed contract, for purposes of deciding whether to enter into and/or modify the physician’s contractual obligations under the particular agreement.

CAVEAT: THE FOREGOING DOES NOT CONSTITUTE LEGAL ADVICE. PLEASE CONSULT AN

ATTORNEY FOR INDIVIDUAL ADVICE REGARDING INDIVIDUAL SITUATIONS.

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PROFESSIONAL NEGLIGENCE VERSUS ORDINARY NEGLIGENCE: FLORES V. PRESBYTERIAN INTERCOMMUNITY HOSPITAL

© Karla M. Meier Partner, Kramer, deBoer & Keane, LLP

The California Supreme Court has granted review in the matter of Flores v. Presbyterian

Intercommunity Hospital, 153 Cal.Rptr.3d 413 (2013). This is a potentially very significant action by the Supreme Court, because determining whether a hospital bed rail collapse is due to an equipment failure instead of a healthcare provider’s negligence can affect whether a MICRA cap applies to an injured patient’s damage claim.

In February 2013, the California Court of Appeal ruled that a negligently maintained hospital bed

rail does not amount to professional negligence within the meaning of California Code of Civil Procedure section 340.5. The Court of Appeal distinguished the facts of the Flores case from prior California cases involving falls from hospital beds or gurneys, which were found to constitute “professional negligence,” as follows:

Here, in contrast, as alleged in the complaint, the patient was injured “when the bed rail collapsed causing plaintiff to fall to the ground injuring her left knee and elbow.” Thus, Flores does not allege the Hospital was negligent in failing to elevate the bed rails or in otherwise failing to supervise or secure her. Rather, Flores alleges she was injured by an equipment failure, i.e. a collapsed bed rail. The alleged negligence is the Hospital’s failure “to use reasonable care in maintaining [its] premises and fail[ing] to make a reasonable inspection of the equipment and premises, which were open to Plaintiff and the public, and fail[ing] to take reasonable precautions to discover and make safe a dangerous condition on the premises. As set forth ante, the discrete issue presented is whether these allegations by Flores, involving a collapsed bed rail, sound in ordinary negligence or professional negligence.

Id., 153 Cal.Rptr.3d at 422, italics in original.

One of the issues before the California Supreme Court is whether the injury in the Flores case arose out of “professional negligence” as that term is used in section 340.5 or arose out of ordinary negligence. The significance of the distinction is that the provisions of MICRA will not apply if the hospital’s alleged failure to maintain and inspect its equipment is found to be ordinary negligence.

California Code of Civil Procedure section 340.5(2) defines “professional negligence” as a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital. While the Court of Appeal in Flores appears to have excluded a hospital’s maintenance and reasonable inspection of its equipment and premises from the definition of “professional negligence,” it should be noted that a hospital’s maintenance and inspection of its

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building and equipment falls squarely within the scope of the hospital’s license- at least according to the California Code of Regulations.

Title 22 of the California Code of Regulations addresses the licensing and certification of health facilities, including general acute care hospitals. No person, firm, partnership, association, corporation, political subdivision of the state or other governmental agency shall establish, operate or maintain a hospital, or hold out, represent, or advertise by any means that it operates a hospital, without first obtaining a license from the California Department of Public Health. (22 CCR sections 70021 and 70103) The California Department of Public Health shall inspect and license hospitals. (22 CCR section 70101(a)) The hospital shall be clean, sanitary and in good repair at all times; maintenance shall include provision and surveillance of services and procedures for the safety and well-being of patients, personnel and visitors. (22 CCR section 70837) “Maintenance” means the upkeep of a building and equipment to preserve the original functional and operational state. (22 CCR section 70045) Any officer, employee or agent of the California Department of Public Health may, upon presentation of proper identification, enter and inspect any building or premises at any reasonable time to secure compliance with, or to prevent a violation of, any provision of these regulations. (22 CCR section 70101(b))

Given that the adequacy of a hospital’s inspection and maintenance of its equipment and premises is subject to the scrutiny of the hospital’s licensing agency, namely the California Department of Public Health, one must wonder whether it can be argued that: (1) a hospital’s inspection and maintenance of its equipment and premises is one of the services within the scope of services for which the hospital is licensed and (2) a hospital’s alleged failure to inspect and maintain its equipment and premises is “professional negligence” as defined by Code of Civil Procedure section 340.5.



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IS AN EXPERT WITNESS POTENTIALLY LIABLE FOR RENDERING DEFAMATORY TESTIMONY?

© Kevin L. Metros Attorney, Kramer, deBoer & Keane, LLP

It is common and expected in civil litigation that two sides to a story will be told. In medical malpractice cases, where expert opinion testimony is often required both to establish and defeat claims of liability, opposing sides frequently have their respective experts present contrasting opinions regarding the standard of care and/or causation. This is why medical malpractice cases are often referred to as a “battle of the experts.”

However, what happens if an expert witness makes comments which are not particularly relevant to a standard of care or causation analysis, and which could be construed as personal attacks on the healthcare professional’s character? Could the healthcare professional turn around and sue that expert witness for defamation?

Defamation is known as an invasion of the interest in reputation and involves “the intentional publication of a fact that is false, unprivileged, and has a natural tendency to injure or cause special damage.”16 If a healthcare professional decides to commence a defamation lawsuit against an expert witness for statements the expert made either during a civil trial or administrative proceeding, there are two major obstacles in the way of prevailing in such a lawsuit.

One obstacle that a healthcare professional will face in prosecuting a defamation suit against an expert for comments made during a previous lawsuit is proving that the expert’s statement was one based upon fact, and not on opinion. To bring a successful defamation suit, the statement that is at the crux of the suit ordinarily must be a statement of fact, not an expression of personal opinion.17 Determining whether a statement is one of fact or opinion can oftentimes be difficult. Ultimately, it is for the court to decide whether a statement is actionable fact or non-actionable opinion.18 Additionally, the burden of convincing a court that a statement is one of fact can be high. For instance, words of hyperbole and invective are not considered actionable statements of fact.19 However, in a case where an individual defendant sponsored a website which included statements that the plaintiff doctor was merely a student who had no training in women’s medicine, a court ruled that the statements were factual because the plaintiff doctor was trained in gynecology and licensed vascular surgery. Hence, the plaintiff doctor was permitted to pursue a defamation cause of action in that case.20

A second hurdle that a healthcare professional will face in prosecuting a defamation lawsuit against an expert in a previous matter is a defense known as the litigation privilege. The litigation privilege creates an absolute privilege for publications made in any legislative, judicial or other official proceeding.21 It

16 Smith v. Maldonado, 72 Cal.App.4th 637, 645 (1999); Burrill v. Nair, 217 Cal.App.4th 357, 382 (2013). 17 Rudnick v. McMillan, 25 Cal.App.4th 1183, 1191 (1994). 18 Baker v. Los Angeles Herald Examiner, 42 Cal.3d 254, 260 (1986). 19 Ferlauto v. Hamsher, 74 Cal.App.4th 1394, 1401 (1999). 20 Del Junco v. Hufnagel, 150 Cal.App.4th 789, 797-798 (2007). 21 California Code of Civil Procedure section 47(b).

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protects litigants, counsel, and all other participants in the proceeding for statements that have some connection or logical relation to the action.22 Further, the litigation privilege applies even if the communication is made outside of the courtroom, so long as the communication is logically related to the lawsuit.23 An expert witness’ motive in making the communication, even if it was made with malice or intent to harm, is irrelevant under the litigation privilege.24

The litigation privilege is therefore a significant hurdle that prevents healthcare professionals for suing over statements made against them within the scope of a previous judicial or quasi-judicial setting, no matter how unfair the statements may be. The litigation privilege can only be circumvented if the expert’s statement bears no connection to the action, which can be an extremely hard burden to overcome.

It is highly unlikely that a healthcare professional can prevail in a defamation lawsuit against an expert. Recourse for the wronged healthcare professional may be available outside civil litigation since experts are subject to ethical and professional obligations imposed by their state licensing board or professional specialty board. While the possibility that defamatory statements are being made by experts should cause concern, most experts are professional and civil in their remarks and can be trusted upon to render objective standard of care and/or causation opinions.



22 Silberg v. Anderson, 50 Cal.3d 205, 212 (1990); Kashian v. Harriman, 98 Cal.App.4th, 892, 929-931 (2002). 23 Id. 24 Id. at 913.

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LIFE IN THE FAST LANE: PREFERENCE IN TRIAL SETTINGS

© Kevin Lee Metros Attorney, Kramer, deBoer & Keane, LLP

California Code of Civil Procedure section 36 provides that a party to a civil action can petition for

their case to be given preference for trial if any of the following criteria are met: 1. The party is over 70 years of age and the court finds that the party has both a substantial

interest in the action as a whole and the health of the party indicates a preference is necessary to prevent prejudicing the party’s interest in the litigation.25

2. The party is under 14 years of age and has a substantial interest in a civil action to recover damages for wrongful death or personal injury.26

3. The party convinces the court, by clear and convincing medical documentation, that the

party suffers from an illness or condition raising substantial medical doubt that the party will survive past six months, with the court being satisfied that the interests of justice will be served by granting the preference.27

This rule applies to all civil lawsuits which end up being tried. Because some Plaintiffs are sick or

elderly, a defense attorney could likely find one of his or her cases placed on the fast track to trial if a Plaintiff succeeds on a motion for preference. Not only does this present increased pressure on the defense attorney to get his or her client’s case prepared in time for trial; it also increases the odds of the attorney having a scheduling conflict, with multiple trials scheduled to start at the same time.

Once a motion for preference is granted, the case will be set for trial not more than 120 days from

the date that the motion for preference is granted.28 Moreover, no continuance will be granted beyond 120 days from the granting of a motion for preference except for physical disability of a party or their attorney or upon good cause stated in the record.29 If a continuance is granted, it shall be for no longer than fifteen days.30 Additionally, no more than one continuance may be granted to either party on the basis of a disability.31

It is important to analyze what constitutes good cause for purposes of the motion for preference

statute. Good cause can entail trial counsel being unavailable for excusable circumstances.32 One factor to

25 Code of Civil Procedure § 36(a). 26 Code of Civil Procedure § 36(b). 27 Code of Civil Procedure § 36(d). 28 Code of Civil Procedure § 36(f). 29 Code of Civil Procedure § 36(f). 30 Code of Civil Procedure § 36(f). 31 Code of Civil Procedure § 36(f). 32 California Rules of Court, Rule 3.1332(c)(3).

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consider regarding whether a continuance should be granted for excusable circumstances is whether trial counsel is engaged in another trial.33

However, what if the defense attorney is already engaged in another trial which is expected to last

more than fifteen days? In this scenario, a fifteen-day continuance in the pending trial that is subject to a motion for preference will not provide the defense attorney with any relief. As previously mentioned, only one continuance can be granted based upon the physical disability of a party or their attorney. The motion for preference statute, however, is silent in regards to how many continuances can be granted for good cause, such as when an attorney is engaged in another trial.

While the motion for preference statute does not explain whether or not an attorney can be granted

more than one fifteen-day continuance if he or she is already engaged in a lengthy trial, a trial judge must also exercise discretion with due regard to all the interests involved when deciding on a continuance motion.34 Judges must abide by the principle of deciding cases on the merits rather than on procedural deficiencies because public policy favors trying cases on their merits.35 A trial judge must weigh the degree of diligence in a litigant’s efforts to bring the case to trial.36 Such diligence can include participation in earlier court hearings, conducting discovery, and preparing for trial.37

While these rules apply to all civil trials, there is a special wrinkle for medical malpractice and other

professional liability lawsuits. To suggest that any defense attorney can try a complicated medical malpractice or other professional liability case with limited preparation just because he or she has a license to practice law belies an understanding of the subtleties of such litigation.38

Many defense attorneys may go an entire career never having to worry about a potentially

uncompromising trial scheduling conflict due to a Plaintiff’s successful motion for preference. However, it is a scenario that could come to fruition and for which all litigators must prepare. While the motion for preference statute is ambiguous in regards to whether more than a fifteen-day continuance may be granted for good cause, case law should hopefully persuade a judge to delay the proceedings in a case subject to a motion for preference. Such a preference would be a beneficial compromise for both sides, with defense counsel being able to finish their other trial(s) and the Plaintiff being able to try their case soon afterwards, which will probably still be a lot earlier than the case would have been heard had a motion for preference been denied.



33 California Rules of Court, Rule 3.1332(d)(8). 34 Oliveros v. County of Los Angeles, 120 Cal. App. 4th 1389, 1395 (2004). 35 Id. 36 Id. at 1396. 37 Id. 38 Id. at 1397.

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EVIDENTIARY CONCERNS OVER TORT LIABILITY FOR PLAINTIFFS’ MEDICAL EXPENSES © Meredith D. Stewart Attorney, Kramer, deBoer & Keane, LLP

As a part of a plaintiff’s claim for damages in a medical malpractice action, or in other tort liability actions where a plaintiff incurs medical expenses which he or she attributes to the tortfeasor, a plaintiff may seek the recovery of past and future medical expenses as part of a claim for special or economic damages. A plaintiff’s claim for general or noneconomic damages serves to compensate the plaintiff for his or her claim for pain and suffering. But what amount of the claimed medical expenses may be recovered?

The California Supreme Court decided a landmark case with respect to the use of evidence

pertaining to a plaintiff’s medical expenses in the 2011 decision of Howell v. Hamilton Meats & Provisions, 52 Cal.4th 541 (2011). In that case, the Supreme Court ruled that a plaintiff may not recover the negotiated rate, which is the difference between the total amount billed for medical services and the actual amount paid, as a measure of plaintiff’s past medical expenses. Only the amount actually incurred is recoverable.

Generally, the Howell decision has developed into a framework for evaluation of and proof of

special damages in tort liability actions. Specifically, the Howell decision applied to limit the introduction of evidence regarding a plaintiff’s claim for medical expenses to the amount actually paid or incurred by plaintiff or a third party insurer. However, the Howell decision also left open several areas in which questions arose pertaining to its applicability, not only to past medical expenses, but also to future medical expenses and general (non-economic) damages. This article discusses recent California case law that has attempted to clarify the applicability of the Howell decision.

In the recent case of Corenbaum v. Lampkin, 215 Cal.App.4th 1150 (2013), the California Court of Appeal addressed two distinct areas for which Howell remained silent in an effort to clarify the applicability of the rule against the introduction of evidence of the full amount billed for medical services in a tort liability action.

The Corenbaum Court noted that evidence of the full amount billed for medical services is not

relevant to the issue of past medical expenses if a plaintiff never incurred any liability for those bills or amounts. (Id., 215 Cal.App.4th at 1127-28.) To recover for past medical expenses, the amounts claimed must be both incurred and reasonable. (Id. 215 Cal.App.4th at 1125-26.) The Court applied the decision in Howell to the case presented, which involved a motor vehicle accident and the medical expenses arising from that accident. However, the Court also pointed out that the Howell decision left open the questions of whether evidence of a full amount billed for services may be relevant or admissible to prove future medical expenses or general (non-economic) damages. The Corenbaum case attempts to answer those questions and can provide guidance to the trial courts of California as to these issues.

With respect to a plaintiff’s claim for future medical expenses, California Civil Code sections 3283

and 3359 provide that a plaintiff may be entitled to recover the reasonable value of medical services that are reasonably certain to be necessary in the future. The Corenbaum Court discussed the fact that the amount billed does not represent the reasonable value or even the market value of a provider’s services as in California the charges billed by different hospitals and providers can vary widely. Rather, evidence of a

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negotiated rate for services is a better indication of the reasonable value of services provided. (Id., 215 Cal.App.4th at 1127.) The full amount billed for past medical services cannot be used as evidence to demonstrate the value of future medical expenses claimed by plaintiff. (Id. 215 Cal.App.4th at 1130-31.) A plaintiff must demonstrate the reasonable value of services to establish his or claim for future medical expenses.

In doing so, the parties may attempt to admit an expert’s opinions to form a basis for the

reasonable value of future medical expenses claimed by plaintiff. The Corenbaum Court noted that evidence of the full amount billed for past medical services cannot be admitted as the foundation for an expert’s opinion on the reasonable value of future medical services. (Id., 215 Cal.App.4th at 1131.) To do so would allow admission of expert opinions based purely on speculation. Instead, an expert may look to the negotiated rates for the services claimed by plaintiff as future medical expenses and part of the claim for special damages.

With respect to a plaintiff’s claim for general damages, evidence of the full amount billed for past

medical services is also irrelevant to prove pain and suffering. Rather, pain and suffering is a subjective determination and no fixed amount of money may be used to reach a conclusion of an amount of general (non-economic) damages. (Id. at 215 Cal.App.4th 1132-33.) To avoid a disconnect that naturally exists between economic and non-economic damages, evidence of the full amount billed for medical services should be logically excluded and may be the subject of a motion in limine prior to trial.



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PROTECTING OUR CLIENTS’ RIGHTS IN THE COURSE OF DISCOVERY © Meredith D. Stewart Attorney, Kramer, deBoer & Keane, LLP

During the course of a medical malpractice civil case, a plaintiff will usually take the deposition of the defendant doctor and make inquiries of the defendant through written discovery. The California Code of Civil Procedure defines the discovery process and the California Evidence Code defines the parameters within which discovery may be sought or introduced as evidence at the time of trial.

In general, Code of Civil Procedure Section 2017.010 provides that discovery may be obtained as to any non-privileged information that is relevant to the subject matter involved in the litigation. Further, it is well known that discovery need only be reasonably calculated to lead to the discovery of admissible evidence and the inquiring party need not prove admissibility. At the time of a deposition of a defendant physician, defense counsel has the right to object to improper inquiries. However, relevance objections are best left for the time of trial and are not waived if not raised at the time of the deposition.

If a deposing counsel insists on inquiring into irrelevant matters to the point of oppression or harassment, however, the deponent’s counsel may properly suspend the deposition to seek a protective order.39 This latter point must be balanced with the Court’s liberal views of allowing discovery, especially where the information may reasonably assist in evaluating the case, preparing for trial or facilitating settlement.40 Occasionally, physicians may be investigated by the Medical Board of California. Those investigations may or may not directly relate to a pending medical malpractice action.

Any conduct by a physician defendant that may have caused the Medical Board of California to investigate the physician would not be relevant to the issues presented in a particular case alleging medical negligence. Although relevance is not a proper objection at the time of a deposition, the evidence will likely be precluded or limited at the time of trial. At the time of trial, this type of evidence could be used to attack the credibility of a physician defendant, but is inadmissible to demonstrate the physician’s tendencies to act in a certain manner in order to prove his or her conduct on a specific occasion.41

At the time of deposition, an objection to inquiries made regarding Medical Board investigations may be appropriate, but is more likely applicable at the time of trial. However, an objection is appropriate and the witness may be instructed not to answer a question where the deposing counsel seeks the disclosure of information protected by a privilege.

For example, any questions regarding a Medical Board investigation or decision that may reveal

information protected by the attorney-client privilege would be objectionable. The existence of the Medical Board’s investigation is not protected by any privilege or statutory “confidentiality” rule, such as Evidence Code Section 1157, because that section solely protects from disclosure information regarding

39

Code of Civil Procedure § 2025.470; see also, e.g., Stewart v. Colonial Western Agency, Inc., 87 Cal.App.4th 1006 (2001).

40 See, e.g., Stewart, supra 87 Cal.App.4th at 1013.

41 Evidence Code § 1101.

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investigations by peer review committees. Some information pertaining to Medical Board investigations are matters of public record. For questions related to matters that are public record, objections would not be appropriate. However, anything related to an investigation that is not a part of public records should be objected to on grounds of violation of the physician’s right to privacy and possible invasion of the attorney-client privilege.

Even if certain information pertaining to medical board investigations is revealed at the time of a defendant physician’s deposition, there are ways to prevent the introduction of that evidence at the time of trial. Specifically, prior to the time of trial, a motion in limine may be considered to preclude the introduction of evidence related to medical board investigations and any information obtained in that regard through deposition testimony. In addition to the objections at deposition, defense counsel may also want to exclude any evidence of the investigation on the grounds that evidence of a defendant’s prior negligence in medical treatment is inadmissible to prove negligence in a particular case.42

Another issue that may arise at the time of a defendant physician’s deposition is inquiries into the defendant’s malpractice insurance carrier. Plaintiff has the right to obtain discovery regarding the defendant’s insurance carrier information and objections at the time of deposition or other discovery may be inappropriate. At the time of a deposition or through other means of written discovery, plaintiff’s counsel may ask questions regarding a defendant physician’s insurance coverage information. Plaintiff may also obtain discovery as to whether the insurance carrier disputes coverage of the claim involved (i.e., in the event coverage is limited for allegations that sound in intentional tort).43 However, the inquiry stops there. Plaintiff may not seek to discover the nature and substance of that dispute between the defendant physician and the insurance carrier.

It is clear that the scope of what plaintiff may attempt to inquire about at the time of a deposition or

through other means of discovery is fairly broad in a medical malpractice action. However, objections are appropriate where the information sought has no evidentiary basis at the time of trial, is subject to a privilege, or violates the defendant physician’s right to privacy. Protecting the disclosure of information that is outside the scope of discovery espoused in the Code of Civil Procedure and the Evidence Code is of utmost priority in defending medical malpractice actions throughout the discovery process. And, certainly, the exclusion of information outside the scope of admissible evidence or that is subject to a privilege or right to privacy, is crucial at the time of trial to avoid unnecessary and unfair prejudice to the defense.



42

See, e.g., Bowen v. Ryan, 163 Cal.App.4th 916 (2008). 43

Code of Civil Procedure § 2017.210.

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EXPERT DECLARATIONS MUST EXPLAIN THE BASIS FOR ALL OPINIONS IN A SUMMARY JUDGMENT PROCEEDING

© Kathleen A. Stosuy

Partner, Kramer, deBoer & Keane, LLP

Motions for Summary Judgment in professional liability cases are almost always supported by expert declarations. The elements needed to prove a cause of action for medical negligence are that the defendant physician’s conduct fell below the standard of care and that this was, to a reasonable degree of medical probability, a cause of the claimed injury.44 Expert testimony is generally required on both elements.45

In reviewing an expert’s declaration either in support of, or in opposition to, a Motion for Summary Judgment, certain key elements are required. First, the declarant must set forth those facts that establish him or her as an expert. Second, the declarant must both recite the foundational facts upon which the opinions are based,46 and list the matters relied upon in forming any opinions.47

Finally, and most importantly, the declaration must relate those facts to the opinions being rendered. An expert witness declaration stating that defendant acted “within the standard of care,” without a factual explanation as to how this conclusion was reached, is insufficient.48 The declaration must explain why the facts lead to the expert’s conclusion.49 “[A]n expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because and expert opinion is worth no more that the reasons and facts on which it is based.”50

The scrutiny by which any expert declaration is reviewed depends upon whether the declaration is in support of or in opposition to a Motion for Summary Judgment. A party who brings a Motion for Summary Judgment bears the burden of persuasion that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. Therefore, a declaration in support of a Motion for Summary Judgment must be detailed and present the proper foundation.51 Expert declarations supporting a Motion for Summary Judgment are strictly construed, and those in opposition are liberally construed.52

Declarations in support of a Motion for Summary Judgment which merely state that the defendant’s conduct was within the standard of care, or that the treatment did not cause or contribute to the claimed injury, are insufficient to overcome the initial burden for the moving party. In Kelley v. Trunk, 66 Cal.App.4th 519 (1998), the defense filed a Motion for Summary Judgment with a supporting declaration from a physician that set forth the facts of the treatment, but only a conclusory statement that “[a]t all times

44

Keene v. Prisinzano, 23 Cal.App.3d 275, 279 (1972); Bromme v. Pavitt, 5 Cal.App.4th 1487, 1499 (1992). 45

Willard v. Hagenmeister, 121 Cal.App.3d 406 (1981). 46

Casey v. Perini Corporation, 206 Cal.App.4th 1222, 1233 (2012). 47

Kelley v. Trunk, 66 CA4th 519, 523–24 (1998). 48

Johnson v. Superior Court, 143 Cal.App.4th 297, 307 (2006). 49

Kelley, supra 66 Cal.App.4th at 523–24. 50

Casey, supra 206 Cal.App.4th at 1233, citing Powell v. Kleinman, 151 Cal.App.4th 112, 123 (2007). 51

Powell, supra 151 Cal.App.4th at 125, citing Kelley, supra 66 Cal.App.4th at 524. 52 Hanson v. Grode, 76 Cal.App.4th 601,607-608 (1999).

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. . . [the defendant] acted appropriately and within the standard of care under the circumstances presented.” This expert’s opinion was held to be insufficient to overcome the burden on the motion.

Likewise, a declaration that assumes facts to reach a certain conclusion is also deficient. In

Bushling v. Fremont Medical Center, 117 Cal.App.4th 493 (2004), a declaration was held to be insufficient because the doctor assumed that causation occurred based on the fact that an injury occurred. “[The] . . . opinions are nothing more than a statement that the injury could have been caused by defendants ’ negligence in one of the ways they specify. But, ‘an expert's opinion that something could be true if certain assumed facts are true, without any foundation for concluding those assumed facts exist’ . . . has no evidentiary value.” (Id. at 510, emphasis in original.)

Therefore, care must be taken in the preparation of a declaration whether in support of or in

opposition to a Motion for Summary Judgment. Not only must the experts’ qualifications be set forth, but all expert declarations must include a detailed listing of the matters relied on, a recitation of the important facts and, most importantly, the application of those facts to the expert’s opinion.



Documents

HEALTHCARE LAW ARTICLES 2013files.ctctcdn.com/feb91b43201/fa6c71ee-2fa0-4c05-90e4-94...3 | P a g e 41A.035 (2004). Defense attorneys point to these arguments and conclude that the