 is an attorney in the Columbus, Ohio, office of Reminger Co, LPA. He specializes in malpractice defense and insurance litigation.

Kenton H. Steele, Esq

Kenton H. Steele, Esq, writes, "Experts identify for the jury or judge what conditions or circumstances were essential for the physicians’ decision-making process."

This column will compare 2 cases that appear similar but for which different outcomes were reached. The different outcomes in the following cases highlight the nuances that can mean the difference between liability being established for a practitioner accused of malpractice and a verdict in their favor.

A man presented to the urology department of a US Department of Veterans Affairs medical center on October 9, 2009. After performing testing, a urologist determined that the patient had an abnormally high prostate-specific antigen (PSA) level. The patient was instructed to return for a follow-up visit in 4 months, but he never returned.

In August 2011, the patient presented to a physician’s assistant (PA). The PA recorded an increasing PSA level and ordered a urology consultation. A biopsy was performed on November 30, 2012, more than 3 years after the patient’s first urology visit. The patient received a diagnosis of prostate cancer. The prostate cancer metastasized, and the patient had to undergo external beam radiation and hormone therapy.

The patient filed a complaint against the initial urologist on October 4, 2013, alleging negligence and seeking $10 million in damages. The patient-plaintiff argued that his initial PSA level was suggestive of prostate cancer. The defense claimed that the urologist instructed the patient to make a 4-month follow-up appointment. The urologist contended that cancer seemed unlikely at the initial visit and said his diagnosis had been benign prostatic hyperplasia.

The issue proceeded to a bench trial, where a judge (instead of a jury) decided issues of fact. After 4 days, the judge determined that the urologist violated the standard of care by failing to explain the significance of the follow-up appointment and the elevated PSA level. The patient was not found contributorily negligent even though he failed to schedule a follow-up appointment. The judge awarded the patient $1.93 million on January 22, 2018.

On March 18, 1999, a 59-year-old man was examined by a urologist who concluded that he had prostatitis. The patient’s PSA level was 4.4 ng/mL. The urologist prescribed an antibiotic to address the inflamed prostate and told the patient to come back in 2 months to recheck his PSA level. The patient did not return until February 1, 2000. However, his PSA level was within normal limits at that time. The patient didn’t see the urologist again until March 5, 2002.

On June 24, 2002, the patient received a diagnosis of prostate cancer with a Gleason score of 9. The patient sued the urologist for medical malpractice, seeking more than $3 million in damages. The patient-plaintiff argued the urologist should have performed a biopsy on his first visit, informed him that he might have prostate cancer, and scheduled him for the repeat PSA test rather than leaving it up to him. The patient contended that if the urologist had explained that an elevated PSA level indicated prostate cancer, he would have scheduled his follow-up appointment. The defense argued that the urologist’s initial diagnosis was appropriate and that the patient was at fault for not following the urologist’s advice to schedule a follow-up within 2 months. After an 8-day trial, a jury deliberated for 40 minutes and rendered a verdict for the defense, finding that the urologist did not breach the standard of care.

The different outcomes in the preceding cases highlight the contextual nature of medical care. Both cases involve a urologist determining a patient’s PSA level. In both cases, the urologist instructs the patient to schedule a follow-up appointment but fails to fully explain the significance of the elevated PSA level. The patient fails to schedule or attend follow-up appointments and subsequently receives a diagnosis of prostate cancer. However, in the first case, the urologist violated the standard of care, whereas the urologist in the second case did not. This is most likely due to the technical difference in information available to the urologists during the initial visit.

These minor technical differences are why medical experts are necessary to establish the requisite standard of care. Experts identify for the jury or judge what conditions or circumstances were essential for the physicians’ decision-making process. The expert then gives their opinion on whether the physician, under similar conditions and circumstances, would have done what the physician in question failed to do. The jury is not required to adopt the expert’s opinion but must use it to consider the facts.

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"The different outcomes in [these] cases highlight the contextual nature of medical care," writes Kenton H. Steele, Esq.

Expert testimony is necessary to establish standard of care

"Generally, the occurrence of a never event or a hospital-acquired condition standing alone should not satisfy a medical negligence plaintiff's obligation to demonstrate the applicable standard of care or a breach of that standard," says Kenton H. Steele, Esq.

Standard of care is a concept used in determining whether an individual was negligent and potentially liable for an injury. Although the standard of care may vary in specificity, it often revolves around the concept of what a reasonable individual would have done under similar circumstances. If an individual breaches the standard that applies and their actions cause harm to another individual, they will be liable for negligence.

This concept is carried over to the medical field. However, medical professionals are not asked to meet the standard of a reasonable individual; instead, the medical standard of care refers to the type of care that a reasonably skilled and competent medical provider would have provided to a patient under the same treatment circumstances. These standards are set by medical professionals and are based on scientific evidence. When medical professionals breach the applicable standard and their actions cause harm to a patient, they may be liable for medical malpractice.

How federal regulations could affect the standard of care

The establishment of a set standard of care is a topic of great debate in the medical community. As technology and medical science evolves, so do the standards to which physicians are held. One recognized standard may suggest that a doctor do X, whereas another may state they should do Y. As you can imagine, a plaintiff’s lawyer will always argue for the standard that imposes liability on the doctor. However, in recent years, a new technique has emerged: substituting federal regulations or guidelines for the standard of care. The most common way this is done is by citing federal regulations regarding 

 are derived from federal sources. Hospital-acquired conditions are the subject of federal law enacted in October 2008, which, in order to provide an incentive for hospitals to reduce hospital-acquired conditions, provides for a reduction in the amount of governmental medical benefits payable for inpatient hospital services related to such conditions. The term 

 comes from proposed guidelines issued by the Centers for Medicare & Medicaid Services regarding the payment of benefits. However, the “never event” language was eventually omitted from the rule and the term is no longer used for purposes of Medicare and Medicaid payment policies.

This issue was considered by an Ohio court in a case involving a patient who underwent surgery for recurrence of renal cell carcinoma. The patient remained at the hospital in the days following the surgery and he developed at least 1 pressure ulcer in the area of his buttocks and coccyx. The patient alleged that, as a result of malpractice, he required additional treatment for years after the surgery. The patient alleged that the development and delayed healing of his ulcers was attributable at least in part to a sponge that was left inside his body and caused a chronic infection. In his complaint against the hospital and urologist, the patient alleged that the occurrence of a never event and/or hospital-acquired condition constituted proof that the standard of care was breached.

In this case, the Ohio court ultimately held that nothing in the statutes or the regulations suggests an intent to establish a new standard of care applicable to private lawsuits. Generally, the occurrence of a never event or a hospital-acquired condition standing alone should not satisfy a medical negligence plaintiff's obligation to demonstrate the applicable standard of care or a breach of that standard.

However, it is worth noting that this a rapidly developing area of the law. Regulatory rules are often used as evidence in other areas of law. As such, it is reasonable to anticipate more and more plaintiffs’ lawyers in the years to come will attempt this bait-and-switch to persuade a jury that since a federal regulation was violated, the hospital/physicians must have breached the standard of care.

Plaintiff’s attorneys are substituting regulations for standard of care.

Can federal regulations on hospital-acquired conditions create liability?

Unanticipated negative outcomes in medical care are unavoidable. When they occur, clinicians often want to apologize or express sympathy to patients and their families, even if the outcome was not their fault. At the same time, they are cognizant that such statements may be used against them in a medical malpractice suit and thus may choose to err on the side of caution and refrain from uttering anything that bears a resemblance to an apology.

However, apologies and shows of sympathy are important instances of human interaction. Especially in a doctor-patient relationship, the parties need to know that they can trust one another. Health care providers often have legal and ethical duties to disclose certain conditions to patients, even if the condition came about due to an error of theirs. Thus, they should not withhold information for fear that their statements may be used against them.

Fortunately, most US legislatures have recognized these competing interests and, in an attempt to strike a balance, have enacted statutes commonly referred to as apology laws.

These statutes limit the admissibility of apologetic statements made by medical professionals, allowing them to show sympathy or remorse and to directly express regret without fear of legal jeopardy.

Currently, 39 states and the District of Columbia have enacted full or partial apology laws. Full laws protect all admissions of fault, whereas partial laws protect only expressions of regret. Ohio’s apology law is an example of the former. It protects “all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, error, fault, or a general sense of benevolence.” Because this type of statute offers broad protection, it makes open communication possible.

Under partial apology laws, on the other hand, apologies that admit fault are admissible in court, and apologies that don’t are not. For instance, Nebraska’s law protects “any and all statements, affirmations, gestures, or conduct expressing apology, sympathy, commiseration, condolence, compassion, or a general sense of benevolence” but not those statements expressing “error” or “fault.” Statutes like Nebraska’s protect statements like “I’m sorry the surgery didn’t go as planned.” However, if a surgeon were to say, “I’m sorry the procedure didn’t go as planned because I cut a nerve,” the admission of cutting a nerve would be admissible.

Determining whether a state has a full or a partial law is the first, and easy, step. Determining what constitutes an “apology” or an expression of “condolence” or “benevolence” is far more difficult. It often involves complex statutory interpretation and is frequently litigated.

 defines it as “an admission of error or discourtesy accompanied by an expression of regret.” Thus, an apology both admits error and expresses regret. Even though they contain the word 

, partial apology laws do not fully protect an apology, as the word is defined, because they don’t exempt admissions of error. Similarly, interpreting what counts as an expression of “condolence,” “benevolence,” or any other characterization used in these laws may be difficult and need to be determined case by case.

Although it is important to connect with patients on a human level, physicians must be aware of the danger that expressing remorse or sympathy may pose. Apology laws seek to find a balance between honesty and liability. Because they vary significantly from state to state and can be further modified by court decisions, individuals who have questions about their scope and/or function should consult an attorney in their jurisdiction.

Apology laws limit the admissibility of apologetic statements.

What physicians should know about apologizing to patients

At some point in nearly every practitioner’s career, they will be the recipient of some type of subpoena. Although being on the receiving end of a legal document stating that “you are hereby commanded” to respond in one form or another can be intimidating, knowing how to handle a subpoena response can alleviate some anxiety associated with being compelled to become involved in a legal proceeding. This column will explain the different types of subpoenas and best practices for responding to a subpoena.

Subpoenas have been a component of the common law system as far back as the 14th century. In the simplest terms, a subpoena is a writ issued by a court or government agency to compel a witness to provide information. There are 2 types of subpoenas:

1. Subpoena ad testificandum, a writ ordering a person to provide oral testimony in response to questions at a deposition or trial

2. Subpoena duces tecum, a writ ordering that a person or organization produce physical evidence, usually documents, to the requesting authority or party

What separates a subpoena from a simple request for information is that a subpoena carries the authority of the court or agency from which it is issued, so a failure to respond could lead to serious repercussions. However, in the context of requests for medical records or other information obtained while providing care and treatment, a failure to consider privacy and other concerns could also lead to problems. As such, giving careful thought to when and how to respond to a subpoena is critical.

What to know about responding to a subpoena

In the context of medical professionals, the most common type of subpoena is a request for the medical and billing records for a patient whom you have treated. Although these types of requests are common, reflexively producing the requested records can be a costly mistake. It is important to remember that there is generally an obligation to protect the confidentiality of information derived from the doctor-patient relationship. Moreover, the unauthorized release of a patient’s records can result in civil penalties or a possible disciplinary action from the relevant licensing board. As such, it is crucial that a proper release be obtained before the release of any patient records.

A common situation in which complications can arise is when the request for records is made on behalf of the parent of a patient who is a minor. Issues often occur in divorce and custody proceedings in which the parents of the minor seek to use medical records to gain some type of leverage in their dispute with the other parent. However, it is often the case that only one of the parents has authority to authorize the release of the minor’s information. As such, it is strongly advised that you consult with an attorney with any questions concerning responding to even a seemingly simple subpoena for records.

The other type of subpoena to be aware of is the above-referenced subpoena ad testificandum—a subpoena for giving oral testimony in response to live questioning from an attorney. Here again, contacting an attorney to represent you with responding to the subpoena is strongly advised. Moreover, many liability insurance policies provide coverage for assistance with subpoena responses. If you are uncertain whether you have this type of coverage, contacting your insurer now, before a subpoena is received, may help things run more smoothly when a subpoena is received. Although being subpoenaed based on having been a treating physician for a party to a lawsuit may seem like a relatively low-risk endeavor, consulting with an attorney and allowing that attorney to interface with the other counsel involved in the case can help reduce the risk of becoming further embroiled in any pending legal action. Finally, having counsel review the subpoena can be critical in determining whether the subpoena is even valid and whether any direct response is necessary.

Depending on the type of subpoena you’ve received and the type of information you are asked to provide, you may be entitled to compensation for the time and expense associated with responding. The standards for the type of compensation available vary significantly in different jurisdictions and based on the type of information sought through the subpoena. Here again, this is an issue likely best addressed by your attorney.

As with most legal issues, there is no one-size-fits-all advice for responding to subpoenas. Although some subpoenas are more straightforward than others, carefully considering what response, if any, is required is critical for avoiding serious headaches that can stem from the improper handling of a subpoena response. Even when subpoenas seem routine, it is generally wise to have your own counsel or in-house legal team involved in overseeing the process of responding.

Be sure to obtain a release before providing patient records.

Kenton H. Steele, Esq

Articles

Expert testimony is necessary to establish standard of care

Can federal regulations on hospital-acquired conditions create liability?

What physicians should know about apologizing to patients

You’ve received a subpoena: What should you do?