Use of Statutes in Professional Negligence Claims
As a defense medical malpractice attorney, different styles of complaints have come across my desk. Many of these complaints can be simple, general allegations of professional negligence, while others can contain wrongful death claims, survival actions and their respective statutes.
However, I have noticed that as I receive and review more complaints, I have begun to see a trend in the way they are drafted. In particular, many of the plaintiffs’ claims of professional negligence are starting to allege violations of other statutes or health regulations in their ordinary professional negligence claims. These statutes include various chapters of Title 28 of the Pennsylvania Code. The regulations usually stem from the Department of Health. This article will address the prior arguments made against the admissibility of these regulations and statutes and will briefly discuss the problems that arise due to their admissibility.
Regarding plaintiffs’ use of the statutes within a complaint, the paragraphs usually imply a breach of a duty to follow the statutes. Plaintiffs have also claimed that the defendants were outright negligent in their failure to follow those particular statutes. It is important to note that upon review of these statutes, they are not strong enough to maintain their own negligence per se claim because they do not outright define a standard of care. More importantly, many of them contain disclaimers stating that they are not supposed to be used to determine a standard of care as to civil liability. However, plaintiffs’ use of these statutes essentially attempts to provide a back door for this material to be admitted into evidence. As a result, certain arguments must be made.
One of the main arguments made is that plaintiffs’ use of these various statutes essentially implies a negligence per se standard for an ordinary professional negligence claim. In an ordinary professional negligence claim, in order to prove a prima facie medical malpractice claim, a plaintiff must establish that: (1) the physician or hospital owed a duty to the patient; (2) the physician or hospital breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm, as in Mitzelfelt v. Kamrin, 584 A.2d 888, 891 (Pa. 1990). More importantly, in order to sustain the burden of proof in a professional negligence action, the plaintiff is required to present an expert witness who will testify to a reasonable degree of medical certainty that the actions of the defendants deviated from good and acceptable medical standards and that such deviation was the proximate cause of the harm suffered. In other words, standards of care in medical malpractice claims, where there are no actual negligence per se claims, are to be set forth by expert testimony.
In negligence per se claims, statutes or regulations are accepted as the standard of conduct, as in Congini v. Portersville Valve, 470 A.2d 515 (Pa. 1983). Therefore, an automatic conflict is created because the plaintiffs are essentially using statutes rather than experts to dictate the appropriate standard of care against the defendants. In addition, as previously stated, this is problematic because these statutes are now being used to determine a standard of care as to civil liability, which appears to be the opposite of the legislature’s intent when it drafted the statutes.
Complaints that allege violations of Department of Health regulations are usually a little trickier. Within these allegations of the plaintiffs’ complaint, the plaintiffs usually reference citations of a past act in conjunction with their alleged violations of the present regulations. The citations could also contain interviews of anonymous employees. More importantly, these citations, which usually refer to deficiencies in the regulations, are only supposed to be used for licensure and certification purposes. Similar to the statutes described above, these “deficiencies” also contain disclaimers stating that they are not intended to be evidence for any legal standard of care in civil litigation.
As expected, plaintiffs’ allegations of the violations of these regulations similarly imply a negligence per se claim. Other arguments that are usually made are that the regulations or citations are irrelevant, scandalous, impertinent, contain inadmissible hearsay and that the admissibility of these citations and regulations is highly prejudicial.
Scandalous and impertinent matter is defined as “allegations … immaterial and inappropriate to the proof of the cause of action,” as in Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. Ct. 1998), which cited Department of Environmental Resources v. Peggs Run Coal, 423 A.2d 765 (Pa. Cmwlth. 1980). As previously mentioned, many plaintiffs’ references to violations of these regulations usually stem from actions of the past that are similar but not related to the case at hand. Arguments are made that every scenario is different. Patients have different co-morbidities, different health care providers, different scenarios for being admitted into the hospital and more. Furthermore, Pennsylvania law has held as a general rule that evidence of previous similar yet disconnected acts of negligence on the part of a defendant is not admissible to prove negligence on a particular occasion, as in Jamison v. Ardes, 182 A.2d 497, 499 (Pa. 1962).
Regarding the hearsay argument, Pennsylvania Rule of Evidence 801 defines “hearsay” as a “statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.” Hearsay is not admissible unless a specific exception applies, per Rule 802. What is usually argued is that the citations constitute hearsay with no applicable exception and that the anonymous interviews within the citations constitute “double hearsay” with no applicable exception.
Unfortunately, despite making the above arguments, there is no guarantee that the plaintiffs will be precluded from introducing the citations and health regulations before and during trial. When this occurs, especially during trial, it can be truly detrimental for the defense. The primary reason is because the defense will have to rely on the jury’s ability to decipher what is the actual standard of care. In other words, in ordinary professional negligence claims, where the plaintiffs imply or allege violations of statutes and regulations, the defense must rely on the jury’s ability to decide the appropriate standard of care: the expert’s medical opinion or what statutes and regulations have been shown to them at trial. The jury is therefore interpreting the law, something that is not supposed to be done.
This reliance on the jury to correctly interpret the law is practically impossible, highly prejudicial and raises an unfair burden on a group of people, many whom have no legal background. I have witnessed this firsthand. After a trial, we were able to interview the jurors to see how they reached their decision. Even though the jury felt that the plaintiff’s experts paled in comparison to the defense experts, the ability of the plaintiff (and plaintiff’s experts) to reference the statutes and regulations, as well as blow it up on a big screen, was what the jury needed to be convinced that a breach in the standard of care actually occurred. The statutes and regulations, although they are not supposed to be used for interpreting the standard of care in civil litigation, represent something concrete that a jury can latch onto.
Therefore, as you continue to defend cases in the future, whenever you review these types of complaints, it is important to: (1) look to see what type of claims are made within the complaint; (2) read all of the statutes and regulations cited in the complaint; (3) look for disclaimers; (4) make the appropriate arguments; (5) raise the appropriate objections; (6) establish a record; (7) consider raising a motion for summary judgment or motion in limine; and, (8) should the case go to trial, figure out different strategies to convince the jury to rely upon the standard of care raised by your experts.
As appeared in: The Legal Intelligencer, 3/17/2015
Reprinted with permission from the 3/17/2015 edition of The Legal Intelligencer© 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.
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|Ron G. Jones