Almost all medical procedures and treatment carry some elements of risk, but in most instances the risks are outweighed by the benefit to the patient. When a medical treatment or procedure is not necessary, however, the patient risks injury and the provider risks liability for any resulting injury from the unnecessary procedure that carries no benefit to the patient. A recent study that explored 10 of the riskiest instances of medical overuse in 2016 showed that cardiac procedures were among the most unnecessary, overused medical treatments. See: Anicka Slachta, JAMA: Cardiac procedures among the 10 most unnecessary, overused treatments of 2016, Cardiovascular Business (Oct 10, 2017).
Cardiac catheterization procedures, including diagnostic angiograms and angioplasties (performed to clear arteries), are among the most commonly questioned procedures. Critics question whether all of these procedures are medically necessary, or whether some are performed more for the financial benefit of the providers than the health benefit of to the patients. For example, the potential complications of angioplasty, which affect about five percent of those undergoing the procedure, include bleeding, blood clots, infection, heart rhythm disturbances, and even possibly death (due to heart attack). Other risks, associated with the common insertion of drug-coated stents, include the possibility of developing life-threatening blood clots (which creates the need for patients to take aspirin and anti-clotting medications for a year in prevention). See: Steve Sternberg and Geoff Dougherty, Are Doctors Exposing Heart Patients to Unnecessary Cardiac Procedures? U.S. News & World Report (Feb. 11, 2015). For more information on cardiac procedures, their benefits, and the associated risks, see the Medical section of this Report.
Problems related to unnecessary cardiac procedures can lead to litigation, which can result in high verdicts or settlements. For example, an agreement for an undisclosed amount was reached in a 2017 settlement of 80 lawsuits alleging unnecessary cardiac procedures at one hospital. See: Tim Casey, Plaintiffs settle 82 lawsuits with cardiologist, hospitals for alleged unnecessary cardiac procedures, Cardiovascular Business (Mar 09, 2017). See generally: Proof of Unnecessary Cardiac Procedures, 129 Am. Jur. Proof of Facts 3d 1.
Attorneys, physicians, insurers, employers, and other potential parties to litigation need to understand the types of lawsuits and other liability issues that may arise in connection with unnecessary cardiac procedures.
Medical Malpractice or Negligence
Claims related to unnecessary cardiac procedures often are litigated under a theory of medical malpractice or negligence. A plaintiff bringing an action against a physician or other health care provider alleging medical malpractice related to an unnecessary cardiac procedure may prevail only if the plaintiff can demonstrate all of the standard elements of a medical malpractice or negligence action. These elements include the existence of a duty to provide care, the duty to conform to a specific standard of care, a breach of that duty, an injury that is proximately caused by the breach, and damages resulting from the injury. See generally: Proof of Unnecessary Cardiac Procedures, 129 Am. Jur. Proof of Facts 3d 1; Cardiological Malpractice Litigation, 68 Am. Jur. Trials 151.
The existence of a legal duty owed by the physician to the patient generally arises out of a physician-patient relationship. For other health care providers, this duty arises similarly, out of the provider-patient relationship. See generally: Medical malpractice: who are “health care providers,” or the like, whose actions fall within statutes specifically governing actions and damages for medical malpractice, 12 A.L.R.5th 1; What constitutes physician–patient relationship for malpractice purposes, 17 A.L.R.4th 132; Am. Jur. 2d Physicians, Surgeons, Etc. § 184, Duty of Care; Liability for Malpractice, Basis of Duty.
Standard of care, breach, and causation
After the existence of a duty to provide care in diagnosing or treating a patient is established, the plaintiff also must establish the care-related elements of the medical malpractice claim. These elements are the applicable standard of care the physician or other health care provider owed to the patient, the provider’s deviation from the applicable standard of care, and the causal link between the provider’s deviation and the patient’s injury. See generally: Am. Jur. 2d Physicians, Surgeons, Etc. §§ 184 to 229, Duty of Care; Liability for Malpractice; Standard of care owed to patient by medical specialist as determined by local, “like community,” state, national, or other standards, 18 A.L.R.4th 603. Expert medical testimony generally will be required to establish these elements. See the discussion below under “Expert Testimony Requirements.”
In a patient’s malpractice action against a cardiologist, arising out of the allegedly unnecessary implantation of a pacemaker, the court determined that the jury’s finding that the cardiologist did not breach the standard of care was not clearly wrong. The 27-year-old patient, whose medical history included a heart attack and coronary artery disease treatment, as well as diabetes, hypertension, hyperlipidemia, and a strong family history of premature coronary artery disease, arrived at the hospital emergency room with symptoms of shortness of breath, chest pains, dizziness, lightheadedness, and faintness. The cardiologist recommended heart catheterization and implantation of a pacemaker, which was performed later that day. After discharge the following day, the patient suffered an unrelated injury to the area of his pacemaker, and developed an infection, which led a cardiovascular surgeon to remove the pacemaker. The patient then brought an action for medical malpractice, alleging that the cardiologist breached the standard of care in implanting a permanent pacemaker instead of providing more conservative treatment.
At trial, the patient’s medical expert testified that the appropriate standard of care in treating the patient would have been to follow a conservative treatment, involving observation and drug therapy to alleviate the patient’s slow heartbeat, rather than implanting the pacemaker. On cross-examination, however, the expert admitted that the guidelines for pacemaker implantation were met in the patient’s case and acknowledged that some cardiologists would have made the choice to implant the pacemaker, even though the expert would not have done it. Another medical expert testified to his opinion that the patient’s case represented a clear indication for implantation of a pacemaker, and that the defendant cardiologist acted within the appropriate standard of care in performing the pacemaker implantation. The trial court entered judgment in favor of the defendant cardiologist after the jury found that the cardiologist did not breach the applicable standard of care owed to the patient. After a series of appeals and remands, an appellate court determined that the jury was manifestly erroneous in failing to find that the cardiologist’s actions fell below the acceptable standard of care. The Supreme Court of Louisiana ultimately found, however, that the jury's conclusion that the cardiologist did not breach the appropriate standard of care was reasonable. Faced with the different opinions from the experts, the high court concluded, the jury obviously chose to accept the testimony of the defense expert, and this conclusion was not manifestly erroneous. See: Snider v. Louisiana Medical Mut. Ins. Co., 169 So.3d 319 (La., May 05, 2015), on remand, 178 So.3d 1133 (La.App. 3 Cir., Nov. 12, 2015) (the Court of Appeal on remand from the Louisiana Supreme Court would treat as rejected the patient's claim that the informed consent could be invalidated by the cardiologist's failure to disclose a financial arrangement with the hospital, because the Supreme Court had already determined that there was informed consent, and the Court of Appeal could find no authority for the patient's claim).
In a malpractice action alleging that unnecessary cardiac thoracic surgery resulted in a patient’s paraplegia, a physician and a physician’s assistant were allowed to withdraw admissions that they had breached the standard of care, which were based on their failure to respond to discovery requests. The cardiac thoracic surgery was performed to repair the patient’s aorta when she was diagnosed with a transected aorta incurred in a car accident. Following the surgery, the patient was determined to be paralyzed. She brought an action alleging that her aorta was not transected, the cardiac thoracic surgery was not necessary or could have been delayed, and the surgery was performed improperly. The physician and the physician’s assistant denied having breached the standard of care, but failed to reply on a timely basis to the patient’s discovery requests and requests for admissions, which included admissions that the providers failed to provide the appropriate standard of care in treating the patient. The providers argued that they were not properly served with all the discovery requests and requests for admission.
At a hearing to determine whether the providers could withdraw their admissions regarding the standard of care and receive an extension of time to reply to the discovery requests, the patient argued that the providers had not met their burden of showing both that the admissions were incredible or could be refuted by credible admissible evidence, and that the denials regarding any breach of the standard of care were not offered solely for the purpose of delay. The providers countered by arguing that they had complied with the applicable standard of care, that their position was supported by affidavits and the physician’s deposition, that they had attempted to file responses as soon as they learned of the requests, and that the patient had failed to show she would be prejudiced by the withdrawal of the admissions. The trial court agreed with the providers. The appellate court concluded that the record supported a finding that the merits of the case would be promoted by allowing the withdrawal of the admissions, and that the patient would not be prejudiced by the withdrawal. Thus, the appellate court determined, the trial court had not abused its discretion by permitting the providers to withdraw the admissions and file responses to the discovery requests. See: Brankovic v. Snyder, 259 Ga.App. 579, 578 S.E.2d 203 (Ga.App., Feb. 11, 2003), certiorari denied (Jun. 02, 2003), distinguished by Neal v. State Farm Fire & Cas. Co., 300 Ga.App. 68, 684 S.E.2d 132, 09 FCDR 2985 (Ct App. Ga., Sep. 10, 2009) (which held that a driver in a personal injury action involving an auto accident was not entitled to the withdrawal of admissions by operation of law for failure to answer requests for admission within 30 days, noting that this case was distinguishable from Brankovic, in which the party seeking to withdraw the admissions presented affidavits refuting the allegations of the admissions and showing that the denials of the admissions were not interposed solely for the purposes of delay).
Instructions to a jury to apply a local standard of care, without reference to the national standard of care, in evaluating a malpractice claim arising from an allegedly unnecessary cardiac catheterization was found proper (although later superseded by statute). The patient presented experts who testified to the national standard of care and the defendant’s breach of this standard in his decision to perform, and his performance of, a cardiac catheterization on the patient. The defendant’s testimony consistently referred to a local standard of care. An unwritten and unclear agreement between the parties prior to trial waived trial testimony bridging the national standard of care and the local standard of care. The patient believed that there was an agreement to use a national standard of care in measuring the defendant physician’s conduct, while the physician understood only that there would be no need for bridging testimony in order to admit evidence of a national standard of care. The jury found in favor of the physician, and the patient appealed.
The patient argued on appeal that the trial court's failure to give a national standard-of-care jury instruction was contrary to the evidence presented and the parties' agreement, contending that the “locality rule” was “absurd” and that the trial court's use of a local standard of care instruction misled the jury into believing that the patient’s evidence of a national standard of care should be ignored. The appellate court concluded that the jury instruction given by the trial court did not conflict with the parties' agreement and was a correct statement of the law. Although the jury “might have been told that it could apply a nationwide standard of care if it found that the nationwide standard was the same as the Delaware standard,” the court stated, the patient did not submit a proposed jury instruction addressing this point. The trial court, after discussing the matter with counsel, concluded that the patient should explain the issue to the jury in closing arguments. The appellate court found no error in this approach, stating that the “jury instructions may not have been perfect, but they were not misleading or otherwise improper.” See: McKenzie v. Blasetto, 686 A.2d 160 (Del.Supr., Dec. 11, 1996) (superseded by statute, as stated in Tyler v. Albert Dworkin, M.D., P.A., 747 A.2d 111, 124 (Del.Super., Mar. 15, 1999) (discussing whether the statute governing expert qualifications could be applied retrospectively, and altering the common law by removing the locality requirement that had so long been a necessary element a plaintiff needed to establish in a malpractice/medical negligence case).
A plaintiff failed to establish that a patient’s death due to cardiac rupture was proximately caused by an allegedly unnecessary pharmacological cardiac stress test. The plaintiff alleged that the defendant physicians breached the applicable standard of care in treating her husband, causing his death. An expert testified for the plaintiff that the pharmacological stress test performed on the patient was “medically unnecessary” and that it precipitated the patient’s death by increasing the stress on the left ventricular wall of his heart. In the expert’s opinion, the defendant physicians should have performed angioplasty or bypass surgery on the patient instead of subjecting him to the stress test, because angioplasty or bypass surgery would have increased the flow of blood to the patient's heart, thereby decreasing the risk of cardiac rupture. The expert acknowledged, however, that angioplasty or bypass surgery would merely make cardiac rupture “less likely to occur,” and that neither would prevent a cardiac rupture. In addition, the expert testified that he had not seen any reported case in which the stress test performed on the patient had been associated with cardiac rupture. As a result, the expert could not testify within a reasonable degree of medical certainty that use of the drug caused the patient’s cardiac rupture, although the expert insisted that “it's still within the realm of possibility.” The trial court granted the physicians’ motion for summary judgment, finding that the plaintiff had failed to establish either that the physicians breached the standard of care in administering the stress test, or that the stress test caused the patient’s death. The appellate court affirmed, finding that the expert testimony on causation indicated only the expert’s belief in the possibility that the test caused the patient's cardiac rupture, and that the patient would have been “less likely” to have experienced a cardiac rupture if the defendant physicians had instead performed angioplasty or bypass surgery. These statements were insufficient to establish causation for the plaintiff's medical malpractice claim, the court stated. See: Click v. Mangione, 2000 WL 897774 (Tenn. Ct. App., Jul. 7, 2000) (not designated for publication).
A claim based on the failure of the physician or other provider to obtain informed consent from the patient to a cardiac procedure may be brought either separately or in conjunction with other allegations of medical malpractice or negligence. The theory of informed consent is based in negligence, and focuses on the physician's duty to fully disclose any pertinent medical information to the patient and obtain consent from the fully informed patient. When obtaining a patient’s consent for a cardiac procedure, the physician has a duty to advise the patient of material risks associated with the procedure, and also to advise the patient of other options available for treatment. See generally: Am. Jur. 2d Physicians, Surgeons, Etc. §§ 148 to 182; Medical malpractice: liability for failure of physician to inform patient of alternative modes of diagnosis or treatment, 38 A.L.R.4th 900; Proof of Unnecessary Cardiac Procedures, 129 Am. Jur. Proof of Facts 3d 1, § 9.
In a patient’s action for malpractice and lack of informed consent to a cardiac catheterization, the patient based his lack of informed consent claim in part on the physician’s failed to disclose past complaints from patients about performing unnecessary cardiac procedures. The physician performed a cardiac catheterization on the patient and diagnosed stenosis, or narrowing of the arteries, in several arteries in the patient’s heart. A different surgeon performed triple bypass surgery on the patient based on the defendant physician’s findings, and the patient developed complications as a result of the surgery. A second catheterization, performed after the bypass surgery, revealed that the patient in fact had normal coronary circulation, which indicated that the defendant physician had erroneously performed the first catheterization, causing an unnecessary triple bypass surgery. The trial court granted the physician’s motion to exclude evidence of prior complaints against the physician, despite the patient’s argument that the evidence was relevant to the claim of lack of informed consent, and a jury returned a verdict for the physician on both negligence and informed consent.
The patient appealed, arguing that the evidence of prior complaints should not have been excluded. The patient contended that a physician's failure to disclose prior complaints can amount to a failure to inform the patient about “the availability of all alternate, viable medical modes of treatment and about the benefits and risks of these treatments.” The appellate court declined to reach that issue, however, because it determined that, even if the evidence was relevant to informed consent, the court properly excluded it. State law provided that relevant evidence could be excluded if its probative value was “substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” The court stated: “Unfair prejudice exists to the extent that a piece of evidence ‘appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions in the case.’” The appellate court determined that the trial court correctly identified “the risk of unfair prejudice inherent in evidence of prior complaints” in a trial that involved both negligence and informed consent. Although the patient offered evidence of the complaints to prove only informed consent, the court stated, the jury might also have considered the evidence of prior complaints in concluding the defendant was a bad doctor, or in deciding that, if he was negligent in other cases, he therefore was also negligent in treating the patient. The appellate court concluded that the trial court correctly excluded the evidence of prior complaints from patients against the physician about performing unnecessary cardiac procedures. See: Luedtke v. Katmeh, 312 Wis.2d 813 (Ct. App. Wis., May 20, 2008) (not designated for publication).
Expert Testimony Requirements
In a medical malpractice or negligence action related to an unnecessary cardiac procedure, expert medical testimony is a key form of evidence required to prove the claim. Expert testimony generally will be needed to establish the applicable standard of care, a deviation from the standard, and proximate cause. Each expert testifying must be qualified and have a sufficient factual basis for his or her opinion. See generally: Presenting Plaintiff's Medical Proof—Common Injuries and Conditions, 6 Am. Jur. Trials 1; Basis of Medical Testimony, 6 Am. Jur. Trials 109; Qualification of Expert Medical Witness, 33 Am. Jur. Proof of Facts 2d 179. See also the Physicians Perspective in this Report.
A claim that a cardiologist breached the standard of care in failing to provide sufficient information on a patient’s medical history to another physician, to whom the cardiologist referred the patient for an allegedly unnecessary radio frequency catheter ablation (RFA) procedure, was not supported by required expert testimony. After the completion of the RFA, the patient developed complications that led to his death, without ever recovering consciousness following the surgical procedure. The trial court granted summary judgment to the referring cardiologist, and the plaintiff spouse appealed. The plaintiff argued that a jury could conclude that the referring cardiologist gave the treating physician false information about the patient's medical history, and that the treating physician relied on the false information to obtain the patient's consent to the RFA. The plaintiff contended specifically that the referring cardiologist led the treating physician to believe that the patient's atrial fibrillation was not responsive to medication or that the patient could not tolerate the medication, which led the treating physician to recommend the risky and unnecessary RFA procedure.
The appellate court noted that although the plaintiff alleged that the referring cardiologist deviated from the standard of care, she presented no evidence establishing the standard of care governing a referring doctor's obligation to convey information to a specialist. The plaintiff’s expert testimony addressed only the treating physician’s failure to obtain sufficient information about the patient's condition and his medications before proceeding with the RFA, and failed to discuss the standard of care applicable to the referring cardiologist to convey this information. The court stated: “There is no question that expert testimony on the standard of care is essential to establish medical negligence in all but the rare cases where a deviation is sufficiently obvious to fall within the common knowledge of an ordinary person.” The court determined that the plaintiff’s allegation involved an assessment of what information would be material to the specialist and whether the referring doctor would be expected to know what was material to the specialist. In the absence of expert evidence on those points, the appellate court concluded, the referring physician was entitled to summary judgment. It affirmed the trial court’s decision. The appellate court also affirmed the trial court’s dismissal of the informed consent claims against the treating physician at the close of the plaintiff’s case, noting that the plaintiff had failed to present any expert testimony or other acceptable evidence of the risks or alternatives to the RFA procedure that were known to the medical community, or any evidence from which a reasonable jury could conclude that a reasonable patient in the patient's condition would have opted not to have the RFA if properly informed. See: Hand v. St. Michael's Medical Center, 2013 WL 1953661 (N.J.Super.A.D., May 14, 2013), cert. denied, 216 N.J. 7 (N.J., Oct. 03, 2013) (not designated for publication).
Liability for False Claims
Litigation related to unnecessary cardiac procedures may be based on allegations of false claims against the government. See generally: False pretense: presentation of and attempt to establish fraudulent claim against governmental agency, 21 A.L.R. 180. Claims involving federal agencies – for example, those involving unnecessary cardiac procedures paid for by Medicare – may be brought under the federal False Claims Act (FCA), which imposes civil liability on any person or entity who submits a false or fraudulent claim for payment to the federal government. See generally: Proof of Violation Under the False Claims Act, 78 Am. Jur. Proof of Facts 3d 357; Proof of Unnecessary Cardiac Procedures, 129 Am. Jur. Proof of Facts 3d 1.
A court found that plaintiffs, who alleged that a physician engaged in a number of unnecessary cardiac procedures, qualified as relators with direct knowledge sufficient to state a claim under the False Claims Act. The plaintiffs alleged that they had personal knowledge of the physician engaging in a number of unnecessary cardiac procedures, including: (1) echocardiograms; (2) electrophysiologic studies; (3) Head Upright Tilt Tests; and (4) other treatments of arrhythmia by ablation, cryoablation, or implantation of an electronic device, such as a pacemaker, AIC, Biventricular AICD or Biventricular pacemaker. They alleged that overuse of these procedures resulted in significantly increased costs to the federal government and significantly increased profits for the offending health care providers, and that the physician “over-utilized these procedures for the sole purpose of increasing the amount of physician and hospital reimbursements paid by Medicare and other federally-funded programs.” The court therefore denied the providers’ motion to dismiss the claims. See: Burkes v. Dylewski, 2016 WL 9526685 (S.D.Fla., Jun. 30, 2016) (not designated for publication).
Claims that health care providers submitted false or fraudulent claims to Medicare, Medicaid, TRICARE, and other federal health insurance programs for medically unnecessary surgical procedures, thereby violating the False Claims Act, were dismissed for lack of jurisdiction. The court noted that a provision of the FCA imposed a limitation on subject matter jurisdiction for cases based on publicly disclosed information. This limitation required the person bringing the action to be an “original source” of the information on which the action was based. The statute defined “original source” as “an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information.” The court concluded that, in this case, there had been a public disclosure of the information on which the claim was based, and neither of the relators had sufficient direct and independent knowledge to qualify as an “original source.” It therefore dismissed the claims for lack of jurisdiction. See: U.S. ex rel. Montgomery v. St. Edward Mercy Medical Center, 2007 WL 2904111 (E.D.Ark., Sep. 28, 2007) (not designated for publication).
Health care providers were entitled to summary judgment on claims related to allegedly unnecessary cardiac procedures, which claims alleged violations of the False Claims Act and state law. The court found that the relator provided no factual basis for his belief that the providers submitted claims for medically unnecessary services other than his own conclusory statement that the services were performed only to obtain money from health care financial institutions, and that he failed to plead fraud with sufficient particularity. The relator also failed to establish that the providers made a knowingly false certification of compliance with a statute or regulation, as required to establish a claim of false certification regarding their services under the FCA, the court concluded. In addition, the court found that, although the relator claimed the cardiac procedures and other services performed were unnecessary and endangered his life, the record did not show that the providers’ services were so deficient as to be worthless, and thus, the relator failed to plead a cognizable claim under the False Claims Act regarding his quality of care claim. Because the federal law claims that served as the basis for the court’s subject matter jurisdiction were dismissed, and only state law claims grounded on supplemental jurisdiction remained, the court stated that it had broad discretion to dismiss the state law claims. The court found the providers were entitled to summary judgment on the relator's federal claim, and it declined to exercise supplemental jurisdiction of the state law claims. See: U.S. ex rel. Bailey v. Ector County Hosp., 386 F.Supp.2d 759 (W.D. Tex., Aug. 31, 2004).
A physician or other health care provider can defend against a medical malpractice or negligence action involving an unnecessary cardiac procedure in several ways. The defendant can demonstrate that one or more of the required elements of the cause of action (discussed above under “Medical Malpractice or Negligence”) does not exist or has not been proved. Other defenses potentially available include showing that patient fault contributed to the injury or that the action was time-barred under a statute of limitations or statute of repose. See generally: Defense of Medical Malpractice Cases, 16 Am. Jur. Trials 471.
Comparative fault or contributory negligence
A physician or other health care provider’s liability for an injury related to an allegedly unnecessary cardiac procedure may be reduced or eliminated if the provider can demonstrate comparative fault or contributory negligence on the part of the patient. See generally: Contributory Negligence, Comparative Negligence, or Assumption of Risk, Other than Failing to Reveal Medical History or Follow Instructions, as Defense in Action Against Physician or Surgeon for Medical Malpractice, 108 A.L.R.5th 385.
A court found no contributory negligence by a patient and his spouse in their response to transient alarms that occurred in connection with the patient’s surgically implanted heart pump. Testimony showed that the transient alarms occurred as a result of a malfunction in the alarm mechanism itself, and that the alarms were unplanned, unexpected, and unpredictable symptoms of underlying damage to the patient’s heart. Testimony also showed that the patient and his spouse were “incredibly vigilant” with regard to the patient's care. The court concluded that it defied logic to think that they would have purposefully neglected to inform the appropriate health care providers of any emergent alarm the device had issued, and that even if they had been negligent in concealing the alarms, the alleged negligence did not meet the concurrency requirement to establish the defense of contributory negligence under Virginia state law. See: Bush v. Thoratec Corp., 13 F. Supp. 3d 554 (E.D. La., Apr. 1, 2014), aff’d, 802 F.3d 680 (5th Cir. (La.), Sep. 17, 2015) (applying Virginia law).
Statutory time limits
A physician or other health care provider may be able to avoid protracted litigation or potential liability by demonstrating that a patient’s claim was not brought on a timely basis. A claim may be barred by a statute of limitations or a statute of repose. Although both types of statutes impose limits on the time period in which a particular type of claim can be brought, determining the trigger event that starts a statutory period running, and the exceptions that may apply, operate somewhat differently under the different types of statutes. See generally: Solving Statute of Limitations Problems, 4 Am. Jur. Trials 441, §§ 34 to 38; Timeliness of Action Under Medical Malpractice Statute of Repose, Aside from Effect of Fraudulent Concealment of Patient's Cause of Action, 14 A.L.R.6th 301; Am. Jur. 2d Physicians, Surgeons, Etc. § 299, Limitations of Actions, In General, Statutes of Repose. See also the Attorneys Perspective in this Report.
Claims arising out of unnecessary stent procedures, including claims based on fraud, were barred as untimely under the Pennsylvania statue of repose related to medical malpractice. This case arose following a medical procedure in which coronary artery stents were inserted in two of the patient’s arteries. More than four years later, the patient received a letter from the hospital informing her that she may have undergone the surgery unnecessarily. A subsequent independent review of the patient’s catheterization records confirmed that the stent procedures had not been necessary. Two years after receiving the letter, the patient brought claims for battery (lack of informed consent), common law fraud, corporate liability, negligence, recklessness, intentional misconduct, and violations of the state’s Unfair Trade Practices and Consumer Protection Law (UTPCPL). The trial court dismissed the patient’s claims with prejudice, on the basis that the claims were barred by the statute of repose contained in the state’s Medical Care Availability and Reduction of Error Act (MCARE Act). On appeal, the patient argued that the legislature intended the MCARE Act’s statute of repose to apply only to medical malpractice claims, and therefore it should not be applied to her claims “based on a criminal and intentional battery purely performed for pecuniary gain.” The patient contended that the cardiac stent placement surgery performed on her was not, by definition, a “healthcare service” because the procedure was a sham, not medically necessary, and thus would not provide any benefit to her health. The patient also argued that the MCARE Act’s statute of repose should not be applied to her claims of fraud and violations of the UTPCPL.
The appellate court concluded that the statute of repose had been applied properly to bar all of the claims. It noted that MCARE defined “medical professional liability claims” as “[a]ny claim seeking the recovery of damages or loss from a health care provider arising out of any tort or breach of contract causing injury or death resulting from the furnishing of health care services which were or should have been provided.” All of the patient’s claims for damages were claims against health care providers related to the “furnishing of health care services,” because the claims related to a stent placement, the court concluded. It stated that the statute’s broad language in the definition of a medical professional liability claim, referring to “any tort or breach of contract,” clearly eliminated the patient’s cause of action for battery, common law fraud, corporate liability, negligence, recklessness, and intentional misconduct, the court concluded, because these claims were all torts. The court also noted that “the purpose of MCARE's statute of repose was to limit claims against medical providers to make medical professional liability insurance affordable.” Thus, the court stated, any ambiguity about whether the UTPCPL claim fell within the statue of repose should be resolved in favor of limiting the patient's cause of action. See: Hammerquist v. Banka, 2017 WL 430878 (Pa.Super., Jan. 31, 2017) (non-precedential decision), appeal denied, 170 A.3d 1034 (Pa., Sep. 08, 2017).
Claims related to an unnecessary coronary bypass, including claims based on fraud, were barred as untimely under the Ohio statue of repose related to medical malpractice claims. Several years after the patient underwent a coronary bypass procedure recommended following an angiogram, the patient underwent an echocardiogram, followed by a cardiac catheterization. These procedures together revealed that the patient “never needed the bypass, that she did not have blockage, that there was never evidence of obstructive coronary artery disease,” and that her prior surgery was “unnecessary.” Within a year of getting the results of these tests, the patient filed a complaint against the health care providers involved in the bypass, which included claims for medical malpractice, battery, intentional infliction of emotional distress, and fraud. The trial court dismissed the complaint, finding that all of the claims were “medical claims” subject to the one-year statute of limitations and the four-year statute of repose for medical claims, and thus barred as untimely. The patient appealed.
The appellate court concluded that all of the claims were based on allegations that unnecessary heart surgery was performed on the patient. The claims were not filed for ten years, and so clearly fell outside the time limits of the statute of repose, which required that “a person must file a medical claim no later than four years after the alleged act of malpractice occurs or the claim will be barred.” The court acknowledged that the Ohio Supreme Court had recognized that, in some cases, a fraud claim may exist separate and distinct from the other “medical claims” alleging medical malpractice. It noted that this exception applied only where “the decision to misstate facts cannot be characterized as medical in nature.” In this case, the appellate court concluded, the exception did not apply, because the patient’s so-called “fraud” claim was not independent of the other medical malpractice claims. See: York v. Hutchins, 2014 WL 1356699 (Ohio App. 12 Dist., Mar. 17, 2014), appeal not allowed, 139 Ohio St.3d 1484 (Ohio, Jul. 23, 2014) (not designated for publication).