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Medical Malpractice Case Update – Winter 2009

By Adam P. Chaddock

I. Plaintiff Entitled to Right to Amend 2-622 Documentation

In Cookson v. Price, plaintiff filed a complaint for medical negligence against a physical therapist, alleging that the use of an inferential current device resulted in injury. Attached to the complaint was an affidavit seeking the 90 day extension allowed by Section 2-622. Within the 90 day extension, plaintiff filed an attorney’s affidavit indicating that the attorney had reviewed the case with a healthcare professional. Plaintiff also filed a reviewing healthcare professional’s report which was authored by a physician, not a physical therapist. Defendant filed a motion to dismiss, arguing that Section 2-622 requires a healthcare professional’s report to be authored by an individual with the same license as the defendant – – in this case, a physical therapist’s license. Plaintiff subsequently filed a motion for leave to amend the healthcare professional’s report, to which he attached the report of a physical therapist. The trial court granted defendant’s motion to dismiss and denied plaintiff’s motion for leave to amend. Plaintiff appealed.

On appeal, the appellate court held that plaintiff was entitled to amend his healthcare professional’s report. Once plaintiff realized that there was possible difficulty based upon the license held by his original healthcare professional, he timely moved to amend the report to use an author of the proper licensure. Unfortunately, the appellate court was not concerned that plaintiff sought to use an entirely different reviewing healthcare professional to author a report filed well after the 90 day extension had run. The appellate court was especially concerned with protecting the rights of the plaintiff, noting that “[t]o bar a plaintiff from amending his . . .affidavits and corresponding report would elevate the pleading requirements set forth in section 2-622 to a substantive defense contrary to both the spirit and purpose of the statute.” While the concurring opinion noted that plaintiff had shown good cause necessary to allow the additional filing, the majority opinion did not even address the issue of good cause.

Obviously, this is a concerning decision. This appellate court essentially concluded that the specific requirements set forth by Section 2-622 are not necessarily mandatory. By so doing, the appellate court read an exception into the statute that does not exist. This is a disappointing decision for the defense.

II. Physician Cannot Testify as to Standard of Care Applicable to an Advanced Practice Nurse & When a Physician-Patient Relationship Exists

In Smith v. Pavlovich, the mother of a patient who died from an infection at age three brought suit against an advanced practice nurse and two physicians for failing to recommend and administer a particular vaccine during clinic visits. In six trips to the clinic, the three year old was never seen or treated by the defendant physicians, only by the APN. The three year old was never administered the vaccine known as Prevnar, which plaintiff alleged would have prevented the bacterial meningitis that killed the child.

Plaintiff offered a pediatrician to testify as to the standard of care and breaches thereof by the APN. During the jury trial, the trial court struck the testimony of the plaintiff’s expert pediatrician as to the APN. Because plaintiff lacked an APN expert, or expert testimony of any kind, directed verdict was entered on behalf of the APN. Additionally, the trial court held that plaintiff had not established a physician-patient relationship between the three year old and the physicians and therefore, the trial court granted directed verdict on behalf of the physicians. Plaintiff appealed.

On appeal, plaintiff argued that the APN was acting as a pediatrician when she cared for the three year old. Because of this, plaintiff argued, a pediatrician was the appropriate expert to testify against the APN. The appellate court disagreed, noting that the APN did not act as a pediatrician, and at all times, practiced under the statutes and regulations applicable to an APN. Thus, the general rule that an expert must be licensed in the same school of medicine as the defendant applied. This rule is appropriate as a defendant “has the right to have his competence judged by the standards of his own distinct profession and not by those of any other.” The appellate court affirmed the directed verdict in favor of the APN.

In regard to the physicians, the appellate court upheld the trial court’s finding that a physician-patient relationship had not been proven by plaintiff. The defendant physicians never saw the three year old as a patient, never examined or treated the three year old, and never provided any services to the three year old. That the physicians’ names appeared on the records as the supervisor of the APN or that they signed off on the APN’s notes was not enough to create a physician-patient relationship. This was especially true since there was no evidence that the APN discussed the care and treatment of the three year old with either physician.

This case is not important for its ruling that an expert must be the same license as the defendant. That rule is well-established. However, this case is important in that it demonstrates that a physician-patient relationship will not be established simply because the physician’s name was on the chart or because the physician signed off on the work of the one holding a lesser license. This is a significant holding, especially in the age of electronic medical records. Oftentimes, electronic medical records will prominently display the name of the supervising physician for a physician’s assistant, APN or other category of provider. The electronic medical records may also require signature of the physician on the notes of the lesser provider. These two pieces of information on the chart open physicians to lawsuits under the “sue every name identified in the chart” method of some plaintiffs’ attorneys. However, supervising physicians now have some cover to distance themselves from liability.

 

Originally published in the Winter 2009 edition of Quinn Quarterly.