This is a sample of the instructor resources for The Law of Healthcare Administration,
Fifth Edition by J. Stuart Showalter. This sample contains the instructor notes and
PowerPoint slides for chapter 3.
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CHAPTER 3
Negligence
I. Overview
I began an earlier iteration of these materials with a bit of an essay, which is reproduced
here (for what it’s worth).
Beneath the extraordinary complexity of modern U.S. law lies an equally extraordinary
simplicity, “as clear and orderly as anatomy.”1 People have certain obligations toward each
other; these obligations may be in the form of criminal laws, standards of ordinary prudence,
or duties voluntarily assumed, but wherever they are found, their breach can be remedied
through legal action rather than self-help and personal conflict.
Nowhere else is this basic simplicity of the law more evident than in the field of
negligence, the most common form of litigation and the field that probably owes more to our
common-law roots than any other.
Negligence is a branch of torts. A tort, simply put, is a kind of wrong. Crimes and
breaches of contract are wrongs as well, of course, but negligence is a civil wrong that is
neither criminal nor contractual and involves the violation of an instinctual rule of behavior—
one of those basic obligations we owe each other—the obligation to be careful and prudent in
our relationships.
This concept seems self-evident, but until the late nineteenth century it was caught in a
hopeless tangle of behavioral rules that had no “underlying principle to explain their
diversity.”2 But in the summer of 1880, the giant of American jurisprudence, Oliver Wendell
Holmes, Jr., saw a simple principle that seemed to bring order into the jumble:
The organizing principle of the law was not found in the rules themselves, which
were hopelessly diverse, as disparate and varied as the circumstances of human behavior.
People came into court because they had been injured in some way and not because
someone had violated a rule of behavior. Was the injury being complained of an
accident—of which the law took no notice—or was it someone’s fault? Under the skin of
modern law lay not rules of behavior but a primitive impulse: blame. “Even a dog
distinguishes between being stumbled over and being kicked.”3
The law of torts was simply the line drawn between accidental and blameworthy injuries.
The line had not been drawn all at once, but by cautious decisions in one case after another.
The concept of blame had evolved from an instinctive impulse for retribution to a modern
notion of fairness. People were now held accountable only for injuries they might have
foreseen and forestalled. What a person of ordinary intelligence and foresight could not
foresee was accidental and therefore blameless.
Holmes developed these insights, never before understood or explained, as much like a
philosopher as a legal scholar. In a series of 12 masterful lectures he explained how the law
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had developed through “the force of [society’s] collective instinct,”4 and he set the stage for
the twentieth century’s emphasis on substantive fairness. The lectures were then published as
a book entitled The Common Law, perhaps the most important single volume in American
jurisprudence before or since.
The Common Law begins with an oft-quoted paragraph that summarizes in a few
eloquent words the reasons why so many respect and revere our legal system:
The life of the law has not been logic; it has been experience. The felt necessities of
the time, the prevalent moral and political theories, institutions of public policy, avowed
or unconscious, even the prejudices which judges share with their fellow men, have had a
good deal more to do than the syllogism in determining the rules by which men should be
governed. The law embodies the story of a nation’s development through many centuries,
and it cannot be dealt with as if it contained only the axioms and corollaries of a book of
mathematics.5
Experience, the “life of the law,” teaches that negligence embodies four simple concepts:
duty, breach, injury, and causation. These are the subjects of Chapter 3 and its accompanying
case materials.
II. Main Topics
•
The general principles of negligence
•
Proving the standard of care
•
Distinctions among causes of action
•
Tort-reform proposals
•
Alternatives to the tort system
III. Questions, Answers, and Talking Points
Page 54—Legal Brief. Students will be incredulous to learn that if the glaucoma test is
95 percent accurate and the incidence is 1 in 25,000, only about one of every six people
who get a positive test result actually has the disease. You might ask students to do some
research on other conditions and the relative accuracy of their tests.
The public policy issues suggested in the last paragraph of the box would make
for good classroom discussion or a research project.
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Page 68—Legal DecisionPoint. This call-out box and the related text present a couple
of classic “what if” scenarios for discussion. If you wish, you can get into a Cardozo-like
discussion of causation; remember the famous Palsgraf case? In the Navy case
mentioned in the textbook (page 68), the government was held liable, although the
Department of Justice and the Navy (in the person of a certain young Judge Advocate
General officer) vigorously objected. I still believe the case was wrongly decided, but
“deep pockets” come into play when the U.S. Government is the defendant. The lab
courier hypothetical could go either way depending on such facts as the length of the
permitted lunch hour, whether these kinds of “detours” had been tolerated in the past,
whether the driver was back on his regular route at the time of the accident, etc.
Page 72—Legal Brief. The physician’s typical reaction to a favorable verdict is to seek
revenge. “Now let’s sue the patient and the lawyers!” is the typical rallying cry. I even
had one come to me wanting to sue the judge! (I had to give him a mini lesson in judicial
immunity.) Learned Hand’s admonition is good to remember.
Page 77—Figure 3.1. This was an interesting settlement and, I believe, the Navy’s first
medical malpractice settlement involving a reversionary trust. Economists and actuaries
helped me calculate what amount of corpus would be necessary to fund the patient’s
treatment for a possible 70-plus-year life span. I carried the trust document and settlement
agreement to the Department of Justice, personally got the signature of the Deputy
Attorney General, and hand delivered the $1 million check to the trust company. This
was in the fall of 1979, and I have often wondered what happened to Marianne H., who
would now be a little over 30 years old.
Page 77—Chapter Discussion Questions. The answers to the first five of these should
be self-explanatory. As to question 6, I think the various tort-reform efforts have had
strikingly mixed results. In my humble opinion, they are highly politicized “Band-Aid”
approaches to a recurring problem. The fact is that we have a malpractice insurance
“crisis” every couple of decades, and it just so happens to coincide with a downturn in the
stock market. When the amount of investment income falls, insurance companies start
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raising premiums and blaming the tort system. But the problem is not essentially the
system or even plaintiffs’ attorneys (although each can share some of the blame); instead,
the problem stems from bad medical outcomes, bad doctor–patient rapport, and a broken
healthcare system that dehumanizes people.
Page 84—Helling v. Carey Discussion Questions
1. Personally, I think Helling was much ado about very little. The physicians were in a
snit because lawyers and judges were telling them what to do, but the facts were so
unusual that they were unlikely to recur. The net effect, however, was to send the
medical profession a wake-up call and make them think twice before blindly
following the “we’ve always done it this way” approach.
2. Yes, it’s “judge-made law,” and there’s nothing wrong with that. It’s what judges do:
they judge.
3. See the answer to question 1—Doctors have wised up, and the situation is no longer
much of an issue.
4. See the discussion above.
Page 88—Perin v. Hayne Discussion Questions
1. This question involves a nuance: due care does not need to be proven; the plaintiff
must prove a lack of due care. The trial court found that the injury could occur even if
proper techniques were used.
2. The injury wouldn’t happen without negligence. The usual res ipsa loquitur case
involves circumstances that any layperson could tell resulted from negligence—
barrels of flour don’t fall out of warehouses unless someone was negligent, for
example. But in surgery, a layperson is not qualified to tell if negligence was
involved. The court says it doesn’t matter; the principle still applies.
3. This is another philosophical question of where to draw the line. You can make up
some interesting scenarios: switching body parts (left versus right ear, for example);
using a second incision; removing the appendix while repairing a hernia because “we
were in the neighborhood”; doing blepharoplasty on both the upper and lower eyelids
when only one or the other was desired. Using an “objective patient” test is essential.
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4. Probably because the plaintiff did not raise the issue. It might have been interesting,
however, if she had come into court saying, “If I had only known, I would not have
consented.”
IV. PowerPoint Slides and Lecture Notes
These slides and notes are presented here for your use in preparing for your classroom
sessions. You may download the full slide presentation at
www.ache.org/pubs/classroom/showalter/show5power.ppt
•
General Principles of Negligence
• What is a “tort”?
• A civil wrong not based on contract
•
•
– Usually based on “fault”
– Strict liability uncommon in healthcare
– Intentional torts in Chapter 2
See the taxonomy in the first slide
for Chapter 2 IM.
A tort is a civil wrong that is not
based on contract.
To prove liability, the plaintiff must
prove each of the four elements:
duty, breach, injury, and causation.
• Elements
–
–
–
–
Duty
Breach
Injury
Causation
•
Elements of Negligent Tort
• Duty
– How to establish?
– Published standard of
care
– “Due care in the
circumstances”
• foreseeability
• reasonable person
• Breach of duty
• Injury
• Causation
•
The duty is often proven by showing
a “standard of care” through written
evidence (a Joint Commission
standard or hospital policy, for
example) or expert testimony.
If a published standard of care or
expert testimony cannot be
obtained, “due care under the
circumstances” will be used as the
standard.
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•
Misc. Thoughts
• “Locality rule”
• “Respected minority” rule
• Respondeat superior vs.
independent contractor
• Tort reform
•
•
•
The “locality rule”—which required
expert witnesses to be from or at
least familiar with the practice of
medicine in the locality where the
defendant practices—has pretty
much been discredited. We are
generally considered to have a
national standard of care.
A “structured settlement”
$1 million
Annual
cost
Reversionary trust
$$
0
•
•
Age
72
Example of a periodic payment
settlement.
The graph is an example of a case I
had in the Navy. On my
The “respected minority rule”
recognizes that there may be
multiple standards because medicine
is practiced differently by people
with different schools of thought.
The defense that a member of a
hospital’s medical staff is an
“independent contractor” whose
negligence cannot render the
hospital liable has been weakened in
recent years.
Various types of tort reform have
been considered in recent years due
to malpractice insurance crises.
These proposals are discussed in the
text.
—Caps on noneconomic damages (pain
and suffering)
—Arbitration
—Periodic payments
—Shorter statute of limitations
recommendation, the government
set up a reversionary trust for the
benefit of an infant with profound
cerebral palsy and a life expectancy
of 72 years. We did an analysis of
the costs of caring for this person
24/7 for her entire life, reduced the
cost to present value, then
determined what amount of money
would be needed to provide for her.
With accumulated interest for the
life of the child, we determined that
$1 million of principal would be
enough to fund the trust. Should the
child die prematurely, the remaining
principal and interest would revert
to the government.
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V. Additional Material
The following opinion is provided for your use, if desired. You might want to make
copies and assign it as additional reading. Discussion Questions and Suggested Answers
are also provided at the end of the case.
Marshall v. Yale Podiatry Group
5 Conn. App. 5, 496 A.2d 529 (1985)
Dupont, C. J.
This case presents the question of whether an orthopedic surgeon is qualified to testify as
an expert as to the standard of care required in connection with the performance of foot surgery
by a licensed podiatrist certified in the field of surgery.
This is a medical malpractice action arising out of surgery performed by the defendant Jeffrey
Yale, a licensed podiatrist in Connecticut, on the plaintiff’s right and left feet. Yale is an agent
and employee of the defendant Yale Podiatry Group, P.C. His examination of the plaintiff
disclosed a hallux limitus of the right foot (restricted, painful range of big toe motion) and a
tailor’s bunion of the left foot. To alleviate the plaintiff’s condition, Yale operated on the plaintiff
implanting an artificial joint in the plaintiff’s right, big toe and removing a portion of the
plaintiff’s left small toe.
At trial, the plaintiff called Urelich Weil, an orthopedic surgeon, to testify to the applicable
standard of care for such surgery. The defendants objected to Weil’s testifying, claiming that he
was not qualified to testify as to the applicable standard of care. The trial court sustained the
defendants’ objection and the plaintiff excepted. Weil was the plaintiff’s only expert witness and
therefore the plaintiff rested since without his testimony the plaintiff could not prevail. The
defendants moved for a directed verdict, which the trial court granted. The plaintiff moved to set
aside the verdict, which the trial court denied and the plaintiff appealed.
The standard of care to which physicians and surgeons are held is “that which physicians and
surgeons in the same general neighborhood and in the same general line of practice ordinarily
have and exercise in like cases.” When the court formulated that test, the “same general
neighborhood” was interpreted as a territorial limitation restricted to the confines of the
community in which the doctor practiced. In [a 1932 case], the “general neighborhood” was
considered the state of Connecticut. It has now been broadened to include the entire nation. These
cases reveal a trend towards the liberalization of the rules involving the qualifications of medical
experts.
Although the issue of this case does not involve the geographical limitation on medical expert
testimony, but rather the “general line of practice” limitation on expert medical testimony offered
in a medical malpractice action, the liberalization of the evidentiary rules regarding the former
limitation are relevant in analyzing the latter limitation.
Our analysis of cases starts with [a 1975 decision] where the court found that the trial court
erred in excluding the plaintiff’s expert, a practicing surgeon specializing in breast cancer
surgery, from testifying as to the proper medical standards of practice among obstetriciangynecologists pertaining to breast examinations. In that case, the testimony was “that breast lump
examinations are performed in exactly the same manner by obstetrician-gynecologists and
surgeons; and that these two specialties are identical with respect to breast lump examination and
diagnosis.” The threshold question of admissibility is governed by the scope of the witness’
knowledge and not the artificial classification of the witness by title.
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Our appellate courts have had occasion to address this issue since that case.... The common
thread tying these decisions together is that where the evidence indicates that the specialties
overlap and the applicable standard of care is common to each, a medical expert from either of
the overlapping groups who is familiar with that common standard is competent to testify as to
the standard of care.
Connecticut has not previously considered whether an orthopedic surgeon can testify as an
expert against a podiatrist in a malpractice action. Other jurisdictions, however, have addressed
this issue, reaching varying decisional results. The Ohio Supreme Court, citing a Connecticut
case, held that the plaintiff’s medical expert, a podiatrist, was competent to testify as to the
alleged malpractice, applying and failing to remove a cast which was too tight, by the defendant
orthopedic surgeon. The record disclosed that the application and removal of casts is an area
where these fields of medicine overlap. The court, therefore, concluded that the podiatrist was
qualified to testify as an expert. The Georgia Court of Appeals addressed this issue, holding that
where the evidence indicates the fields overlap and the methods of treatment are the same for the
schools involved, an orthopedic surgeon can testify as an expert as to the standard of care which
must be exercised by a podiatrist. The California Court of Appeals has addressed the analogous
issue of whether a podiatrist can testify as to the applicable standard of care of an orthopedic
surgeon performing foot surgery, holding that he can. The record revealed a familiarity with the
surgery and contained testimony that the fields overlapped.
There is, however, a line of authority excluding such testimony. The South Carolina Court of
Appeals has held that an orthopedic surgeon was not competent to testify as to the applicable
standard of care in a malpractice action against a podiatrist. The record there revealed that the
orthopedic surgeon had never performed ambulatory foot surgery nor was he familiar with the
surgical procedure performed. Likewise, the North Carolina Court of Appeals has excluded the
testimony of an orthopedic surgeon on the applicable standard of care in a malpractice action
against a podiatrist. The record also revealed an unfamiliarity with the field of practice. The
Illinois Supreme Court has considered whether “a plaintiff may establish the standard of care a
podiatrist owes a patient by offering the testimony of a physician or surgeon, or another expert
other than a podiatrist.” The court held that “in order to testify as an expert on the standard of care
in a given school of medicine, the witness must be licensed therein.” The dissent casts this as a
mechanical and formalistic resolution of the issue.
The decisions allowing and excluding expert testimony in this area generally focus on the
expert’s familiarity with the school of medicine and the procedures involved. To resolve this
issue in the context of this case requires an examination of the testimony proffered to qualify
Weil as an expert, in order to determine whether he possessed a sufficient familiarity with the
school of medicine and the procedures involved.
In the absence of the jury, Weil was extensively examined regarding his qualifications to
testify as an expert. He testified that he has performed hundreds of operations on the feet, that he
was familiar with the surgical procedure performed on the plaintiff’s feet, and that he was
familiar with the treatment, both conservatively and surgically, of keratosis and calluses upon the
feet. Further, he testified that he had worked with almost all of the podiatrists in the New Haven
area. They had referred patients to him for treatment and he had referred patients to them,
generally for conservative treatment, but occasionally for surgical procedures performed in a
hospital. He had observed and performed operations where more than one head and neck of a
metatarsal was removed for neurological disorders of the feet. Here, the defendant podiatrist
removed the fifth metatarsal of the plaintiff’s left foot. In addition, the doctor testified that he had
performed implant operations and was familiar with implants into the foot and toes, but had never
performed an implant operation on the toes. He stated that he was familiar with the standard of
care applicable to the treatment of keratosis and bunions and that the standard of care did not
change simply because a podiatrist rather than an orthopedic surgeon treated the patient.
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The defendant podiatrist testified that, in terms of foot surgery, orthopedic surgeons and
podiatric surgeons generally performed the same procedures. He admitted that a certain medical
text on surgery on the feet was authoritative. Weil expressed a familiarity with that text insofar as
it pertains to the plaintiff’s preoperative condition and the surgical and conservative nonsurgical
techniques for the treatment of the plaintiff’s condition. Although Weil had never performed or
assisted in the surgical procedures involved in the treatment of the plaintiff’s malady, this was so
because he questioned the use of such procedures. The extensive offer of proof discloses that the
plaintiff’s expert had the requisite familiarity with the particular school of medicine and the
procedure involved to substantiate that he had the necessary qualifications to give his opinion as
to the standard of care.
There is error, the judgment is set aside and a new trial is ordered.
Discussion Questions
1. What might have been the practical effect for the practice of podiatry if the decision
in Marshall had been the opposite?
2. Do you believe it is fair to allied health professionals that they be judged by the
standards of MDs?
Suggested Answers
1. It would be hard for them to lose a malpractice case because plaintiffs would have to
find other podiatrists as expert witnesses, which would be unlikely.
2. Sure. It’s the same part of my anatomy, regardless of who’s working on it or what
school of medicine they ascribe to.
Notes
1. S. Novak, Honorable Justice: The Life of Oliver Wendell Holmes 148 (1989).
2. Id., p. 157.
3. Id. The quote in the first full paragraph is from a Holmes law review article written
earlier that year.
4. Id., p. 159.
5. O. Holmes, The Common Law 1 (1881).
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Chapter 3:
Negligence
1
General Principles of Negligence
• What is a “tort”?
• A civil wrong not based on contract
– Usually based on “fault”
– Strict liability uncommon in healthcare
– Intentional torts in Chapter 2
• Elements
El
t
–
–
–
–
Duty
Breach
Injury
Causation
2
Elements of Negligent Tort
• Duty
– How to establish?
– Published standard of
care
– “Due care in the
circumstances”
• foreseeability
• reasonable person
• Breach of duty
• Injury
j y
• Causation
3
Misc. Thoughts
• “Locality rule”
• “Respected
Respected minority”
minority rule
• Respondeat superior vs.
independent contractor
• Tort reform
4
A “structured settlement”
$1 million
Annual
cost
Reversionary trust
$$
0
Age
72
5