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Medical Malpractice
Temple University School of Law
McClellan, Frank M.

Frank McClellan

Medical Malpractice

Fall 2016

Medical Mistakes & Quality

Taylor v. Einstein

Pa. Super. 1998

(conditional consent is valid; punitive damages valid question for the jury; IIED claim valid question for the jury)

Facts: Ka-Rin Taylor, 16 year old. She was diagnosed with Adult Respiratory Distress Syndrome and admitted to the PICU with a tentative diagnosis of pneumonia. Intubated and placed on a ventilator, was right mainstemmed at 11AM, but by 1:30 was in proper position. Ms. Taylor contended at trial the misplaced ETT a substantial contributing cause of her death based upon expert testimony and was not repositioned for 1-3 hours. Dr. Trinkaus countered it was repositioned by 11:15 (usual practice/ABGs). Dr. Trinkaus determined he needed to perform a Swan-Ganz catheterization, consulted Dr. Wertheimer from cardiology and concurred.

The informed consent: Taylor testified – her consent was conditioned upon Dr. Werheimer’s experience and Dr. Trinkaus lack of experience; stated Dr. Werheimer would perform the procedure; they requested him – he declared he did it every day on adults, it was “minor,” 1% risk factor, that he was going to do the procedure
Died of an arrythmia during the procedure –Trinkhaus admitted he did the procedure “it was just like he was doing it, he was standing behind me”

Procedural History:

The Jury: found Trinkaus’ behavior was negligent although it was not a substantial factor is causing death – they found his conduct outrageous and caused the emotional distress and awarded $500,000 for compensatory damages (Dr. Wertheimer was not negligence and was not outrageous)
Superior Court: Vacated and remanded; holding the trial court erred in refusing to submit to the jury issues of lack of consent, misrepresentation, punitive damages, IIED

Holding: Reverse and remand.

Whether parents agreed for pediatrician rather than cardiologist to perform the procedure was an issue for the jury on an informed consent claim.
Whether pediatrician’s alleged conduct warranted imposition of punitive damages was an issue for the jury.
Parent’s claim for intentional infliction of emotional distress is for the jury.


Lack of Consent

Plaintiff Argues: her consent was conditioned upon Dr. Wertheimer performing the procedure

The Court – Agrees – PA law permits a patient to limit his or her consent to a particular surgeon
Rule of informed consent – contractual in nature – both parties should understand the nature and understanding of the results – material facts, risks, complications, alternatives that a reasonable person would consider significant in deciding whether to have an operation

Plaintiff need to prove – causal relationship between failure to disclose information and consent; not that the surgery caused the injury because the unauthorized procedure constitutes a tort (battery)
Battery – need not establish negligence – the surgery could be perfect, and even beneficial, yet the cause of action exists because the procedure is a tort nor is expert testimony required – and even in harmless nominal damages should be awarded/nominal damages/punitive damages (intentional invasion of another’s rights)

Application – Taylor only consented to Dr. Wertheimer – this supports a battery claim and misrepresentation
Patient may conditionally provide consent – AMA – Patient is entitled to choose his own physician and should be permitted to acquiesce or refuse to accept the substitution; this creates the physician-patient relationship; is nondelegable and condemns “ghost surgery”

Punitive Damages

Punitive damages – punitive, not compensatory – when defendant’s conduct evidences a “reckless indifference for the rights of others”
Reckless disregard § 500 Restatement (Second) of Torts – conduct is in reckless disregard of the safety of another if he does an act which it is his duty to the other to do, knowing or having reason to know the facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make conduct negligent
The Court – Dr. Trinkaus’ behavior is precisely the type of conduct for which punitive damages may be recovered


Dr. Trinkaus: argues the trial court erred in refusing to enter j.n.o.v. in his favor for IIED claim

Section § 46 of the Restatement (Second) of Torts: (though not expressly adopted by the PA Supreme Court: IIED

One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other person results for it, for such bodily harm
Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distressed

to a member of such person’s immediate family who is present at the time, whether or not such distress results in harm, or
to an person who is present at the time, if such distress results in bodily harm

Outrageous conduct – is subject to emotional distress if it was a “substantial factor” in causing the emotional distress
Extreme and outrageous conduct – goes beyond all possible bounds of decency and would be regarded atrocious and utterly intolerable in a civilized community that no reasonable person could be expected to endure it
Severity – consider intensity/duration of distress
The Court – recognized IIED against third parties; it applies here where Taylor proffered evidence of severe emotional distress- performing the procedure himself despite repeated assurances to the contrary – panic attacks, depression, insomnia, lethargy, sadness, dysthmia-depression which required treatment and may require hospitalization; her boss – lack of concentration/lethargy and moved her to call center control
The Court – remands this claim at trial – the jury could draw the conclusion it was outrageous for Dr. Trinkaus to perform the procedure – who will invade a lived one is an important decision and this was outrageous

BECK: CONCURS/DISSENT – agrees with informed consent, punitive damages

Rejects IIED – §46(a) requires a person who is present at the time – she learned second hand about the misconduct after they took place, was not present, did not witness it, which has always been required
Rationale/policy: “The relative who contemporaneously observes the tortious conduct has no time to brace his or her emotional system. The negligent tortfeasor inflicts upon his bystander an injury to the victim. Hence, the critical element for establishing such liability is contemporaneous observance of the injury to the close relative” e.g. no time or space to soften the blow
He contends – this is necessary to “draw the line somewhere” for liability

Taylor v. Einstein

(Pa. 2000)

Issue on Appeal: whether parent’s contemporaneous sensory perception of IIED is necessary to recover under §26(2) of the Restatement of Torts; did Superior Court properly uphold trial court’s denial of judgment n.o.v. for IIED?

All Claims

Negligence – compared to SOC of the malpositioned ETT and SG cath.
Lack of informed consent

Holding: Reversed in part – the mother cannot maintain an action for IIED because she was not present and did not observe his outrageous conduct.


Rule – The Restatement of Torts § 46 – Outrageous Conduct Causing Severe Emotional Distress- see above
The Supreme Court – rejects the District Court view that it was sufficient he acted in an extreme, outrageous, intentional conduct
Rationale – the Superior Court ignored 46(2) requiring “presence at the time”
Application – she was in a waiting room and a hallway while physicians worked and did not learn of the conduct until after

The rationale for the rule – Johnson v. Caparelli – Presence essential because

the person has no time to prepare themselves for the impact
the actor can be expected to know the effect when the person is present
emotional effect is less when not viewed by personal observations

Comment of the Restatement (L) – concerns for foreseeabiltiy, practical necessity of limiting liability, need to assure bona fide claims
When one is not present but learns later – he is buffered against the full impact that presence and observation would have entailed

By contrast – the relative who observes the tortious conduct has no time span to brace the emotional system

Application – Mrs. Taylor did not observe the tort

CONCURRENCE: Castille, Nigra

He addresses the following points (agrees with must of the analysis)

Does not agree they have never recognized IIED

Papieves v. Kelly – the Court recognized IIED but it involved the treatment of a corpse

The tort – sui generis – of its own kind and subject to a specific subsection

Papieves – Relied on §868 not § 46 – the court held – “The real issue is the right of a decedent’s relatives to protection against intentional, outrageous, or wanton conduct which is peculiarly calculated to cause them serious mental or emotional distress”; recognized “any extension of legal liability to acts which cause ED is not without its problems” “the law cannot guarantee all men’s’ peace of mind” and “a certain toughening of the mental hide is a better protection than the law could ever be” – but recognize the severity of psychological disorders
The difference between the treatment of a

ndard based on inexperience in procedures? Or those who graduated in the lower third of their medical school?
Application: Here, doctors held themselves out as doctors and should be held to the standard they profess – which Clark expected and was entitled to receive.

Pain and Suffering Verdict:

Defendants Argue: pain and suffering was “clearly excessive” result of “passion and prejudice” and warrants a new trial because $2 million for four minutes of conscious pain and suffering is a “staggering number”
Defendants Argue: Legislature amended the standard of review in medical malpractice cases New Jersey Medical Care Access and Responsibility and Patients First Act, setting forth a less deferential standard, and therefore the court erred by applying the “shocks the conscience” standard

The Act Provides: “Upon a motion by any part for additur or remittitur the judges shall determine whether the award is clearly inadequate or excessive in view of nature of medical condition or injury that is the cause of action because of passion or prejudice by the jury”

The Court – the Legislature did not state whether it creates a new standard of review or codifies common-law

Legislative Intent: was passed in response to “dramatic escalation in medical malpractice liability insurance premiums” causing doctors to discontinue practice in N.J., drop high risk patients and increase the cost of medical care
Tort Reform Assertion – the legislature did not import the “shock the conscience” phrase, but the statute mirrors common law

Baxter v. Fairmont Food Co – the object of the court’s review of an award is to correct clear error or mistake by the jury – TEST – whether the award is “so disproportionate to the injuries and resulting disabilities shown as to shock the court’s conscience”

Therefore the Court – finds no difference between common law and statutory language, finding no distinction between “shock the conscience” and “grossly excessive” and “clearly excessive” as “those so disproportionate was to shock the judicial conscience”

Defendants Argue: Pain and suffering is excessive because the suffering was brief (until he was unconscious) and cites drowning cases

The Court: Rejects this – no personal injuries is ever an exact and binding precedent for another upon the question of excessiveness of the verdict even where there is a close parallelism of facts and circumstances

Application: Jury rejected cardiac arrest theory and instead accepted he aspirated and died of “horrible drowning” and under these circumstances the pain and suffering was not excessive (affirm)

McClellan’s Summation – here defendants argue they are in training and should be held to a lower standard than general practitioners based on their own training and experience

The Court – Rejects this – they “hold themselves out” to be doctors under the statute and emphasizing what the patient expects physicians to provide – A lay person does not know they are being seen by a “resident” and therefore liability is limited
Policy: deterrence, promoting those in training to seek advice of more senior person (e.g. failure to reintubate)

Complications – Gawande argues – perfection cannot be the standard if we want a future of trained health care professionals because practice permits growth. Training requires experience and exposure (balance)

Next Issue: pain and suffering – 4 minutes of pain and suffering, $2 million dollars – the Court does not find this “shocks the conscience” (e.g. plaintiffs’ counsel argued “drowning in your own secretions”)
The Court recognizes – different levels of skill, knowledge based upon: training/specialty, experience performing procedures and they “hold themselves out” as doctors and patients do not know the difference; persons are entitled to the care represented by the defendants