In a recent post, https://www.videntpartners.com/blog/2023/medical-institutional-standard-care-and-liability-breach-independent-respondeat-superior, I discussed a case involving the death of a prisoner for lack of timely emergency treatment. Windhurst v. Arizona Department of Corrections et al. (10/11/2023). The Arizona Supreme Court held that a contract prison healthcare provider has an institutional duty of care to imprisoned patients, separate and distinct from its employee clinicians’ duty of care, and that the institutional standard of care and breach thereof can be established by an appropriate expert (in that case, the chief of medical services for the New York City jail system). Importantly, the court held that the state statute governing the qualification of medical malpractice experts does not apply when the defendant is an institution rather than a human being:
Because the defendant in this case, Corizon, is not engaged in a “health profession” and is neither a “specialist” nor “general practitioner,” § 12-2604 does not apply…. [A]n institution cannot be a licensed health professional because an institution cannot be a natural person…. Similarly…an institution, by definition, cannot be a “specialist” or “general practitioner.” Accordingly, § 12-2604(A) is inapplicable to claims based on a theory of institutional liability.
In Jorgensen v. Smith et al. (2/9/2024), the Iowa Supreme Court arrived at the same conclusion by a different route. The defendant plastic surgeon, Dr. Smith, was a member of the defendant physicians’ practice group, Tri-State Specialists, L.L.P.
In May 2020, the Jorgensens brought this suit against Dr. Smith...and Tri-State. The Jorgensens allege that Dr. Smith botched the 2018 surgery and that [both] defendants were liable for the resulting damages. As to Dr. Smith, the Jorgensens allege medical negligence and lack of informed consent…. As to Tri-State, the Jorgensens allege…negligent “hiring, supervising, employing, and/or retaining.” At oral argument, the Jorgensens’ counsel clarified that this claim is about negligent retention.
In brief summary, the negligent retention claim is based on the idea that Tri-State knew or should have known that Dr. Smith was unfit to practice surgical medicine and, therefore, TriState was negligent in retaining Dr. Smith. Put another way, the Jorgensens believe that Tri-State was negligent in failing to discharge Dr. Smith before he could harm Charlene in the 2018 surgery.
The Jorgensens give a host of reasons why Tri-State was obligated to discharge Dr. Smith. [In lieu of the court’s brief summary, see the hair-raising account at https://iowacapitaldispatch.com/2021/03/18/after-years-of-alleged-fraud-and-incompetence-an-iowa-surgeon-surrenders-his-license/.]
Iowa, like many other states, requires medical malpractice plaintiffs to file a certificate of merit signed by a qualified expert (Iowa Code §147.140). The Jorgensens’ plastic surgery expert opined that Dr. Smith had deviated from the standard of care, but his certificate did not address the claim against Tri-State; nor did the plaintiffs file a separate certificate from a suitable expert opining that Tri-State’s failure to discharge Dr. Smith was negligent. Tri-State, claiming that the statute required such a certificate, filed a motion for summary judgment, which the trial court denied:
First, the [trial] court found that although Tri-State “is a health facility and within the type of cases included in [section] 147.140,” the negligent retention claim “is not a question of professional medical care, but is within the ambit of nonmedical, administrative, or ministerial acts.” [Citation omitted.] Therefore, the court reasoned, “[n]o expert testimony is required to establish a prima facie case and no certificate of merit affidavit is required.” Second, the court noted that even in cases about medical care, expert testimony isn’t always required to establish a prima facie case. “Where lack of care is so obvious as to be within the comprehension of a lay person and requires only common knowledge to understand, no expert testimony is required,” the court noted. And under “the facts of this case,” the court believed that “the alleged facts” supporting the negligent retention claim “are so obvious as to be within this exception.”
The Iowa Supreme Court granted Tri-State’s request for an interlocutory appeal. The opinion begins with an analysis of the four statutory criteria that require plaintiffs to file a certificate of merit:
1. The plaintiff’s action is “for personal injury or wrongful death.”
2. The action is “against a health care provider.”
3. The action is “based upon the alleged negligence in the practice of that profession or occupation or in patient care.”
4. The action includes “a cause of action for which expert testimony is necessary to establish a prima facie case.”
The first criterion was met in this case, obviously. Iowa’s statutory definition of “health care provider” includes (oddly, as the court acknowledged) entities like Tri-State, so the second criterion was also met. The court held, however, that the third criterion was not met. Because this determination was dispositive in favor of the plaintiffs, the court did not opine on whether expert testimony was required to establish Tri-State’s negligence (the fourth criterion).
In their brief, the defendants say that [the third] requirement is met because the Jorgensens’ “negligent retention claim is . . . ‘based upon the alleged negligence in the practice of [Tri-State’s] profession or occupation or in patient care.’ ” But the defendants’ brief does not contain arguments about the “profession” option or the “in patient care” option. Instead, the defendants’ brief only contains an argument about the “occupation” option. Following the defendants’ lead, we only consider the “occupation” option as it is argued in the defendants’ brief.
….[A]ccording to the defendants, the ordinary meaning of “occupation” should be found in Black’s Law Dictionary. Black’s defines “occupation” to mean “[a]n activity or pursuit in which a person engages; esp., a person’s usual or principal work or business.” And the Jorgensens’ negligent retention claim is premised on the idea that Tri-State’s “work or business” includes hiring and retaining surgeons. It follows, the defendants say, that the Jorgensens’ negligent retention claim alleges “negligence in the practice of” Tri-State’s “occupation.”
….In our view, though, the common, ordinary meaning of “occupation” only encompasses the pursuits of natural persons, that is, human beings. It does not encompass the pursuits of entities like Tri-State. (Emphasis added.)
The opinion devotes three full pages to demolishing Tri-State’s argument. One could almost feel sorry for defense counsel. First, the court points out that Black’s definition of “occupation,” upon which Tri-State relies, actually supports the court’s view, because the definition uses the word “person” twice, and Black’s defines “person” as “[a] human being,” that is, a “natural person.” The court then quotes the definition of “occupation” in five dictionaries, beginning with The Brittanica Dictionary (“the work that a person does”) and proceeding through Merriam-Webster, Dictionary.com, Collins, and Cambridge Dictionary. All five definitions, the court points out, “describe the efforts of individual humans…not entities. This suggests that ‘occupation’ unusually means the efforts of humans, not entities.”
As if this were not more than enough to prove the point, the opinion proceeds to quote examples provided by all five dictionaries of how “occupation” is used in a sentence. From Brittanica: “He is thinking about changing occupations and becoming a police officer.” From Dictionary.com: “Her occupation was dentistry.” And so on.
It is difficult to resist the conclusion that the court was irritated by a physicians’ practice group trying to take advantage of a statute that was clearly intended to benefit individual physicians only – particularly when Tri-State’s answers to interrogatories state that it “is a business entity” and “does not provide medical care, treatment, or diagnosis.” Rather than rebuke Tri-State directly, which would have been wholly inappropriate, the court chose to hammer the point into the ground instead. That’s my interpretation, anyway.
I find these medical institutional liability cases very interesting, and the judicial rejection of such entities’ attempts to latch on to rules that were intended to benefit flesh-and-blood physician defendants is heartening. I will continue to make note of such cases whenever I come across them.
