Edwin Davis et al., Appellants,v.South Nassau Communities Hospital, et al., Respondents.BriefN.Y.October 15, 2015Index No: 1834/11 tfo 6e }lrgued (8y: Joseph G. Dell, Esq. (rfime 1\§questecf: 30 :lVlinutes) Nassau County Clerk's Index Nos.: 1834/11,23966/09 & 8405/09 State of New York Court of Appeals APL -2014-00245 EDWIN DAVIS and DIANNA DAVIS, Pfaintif!s-}lppe((ants, -against- SOUTH NASSAU COMMUNITIES HOSPITAL, REGINA E. HAMMOCK, DO, CHRISTINE DeLUCA, RPA-C, and ISLAND MEDICAL PHYSICIANS, P.c., Index No.: 23966/09 LORRAINE WALSH-ROMAN, -against- (j)efendants-1\§spondents. Pfaintijf-1\§spondent, REGINA E. HAMMOCK, M.D., ROBERT DEAN, M.D., CHRISTINE DeLUCA, P.A., SOUTH NASSAU COMMUNITIES HOSPITAL, and ISLAND MEDICAL PHYSICIANS, P.c., Index No.: 8405/09 (j)ejendants-1\§spontfents. EDWIN DAVIS, -against- P(aintiff, LORRAINEA. WALSH, (j)ejendant. REPLY BRIEF FOR PLAINTIFFS-APPELLANTS TO BRIEF OF AMICUS CURIAE DELL & DEAN, PLLC JIttorneys for P[aintiffs-JIppe[[ants EDWIN DAVIS and DIANNA DAVIS 1325 Franklin Avenue, Suite 100 Garden City, New York 11530 Tel.: (516) 880-9700 Date: February 23, 2015 Fax: (516) 880-9707 TABLE OF CONTENTS Table of Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 1 Reply to Amici's Arguments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Conclusion ....................................................... 14 TABLE OF AUTHORITIES New York Precedent Ellis v. Peter, 211 AD2d 353 (2d Dept 1995) ............................ 12 Moreta v. New York City Health & Hospitals Corp., 238 AD2d 149 (1st Dept 1997) ....................................... 12 Pulka v. Edelman, 40 NY2d 781 (NY 1976) ............................. 9 Pulka v. Edelman, 50 AD2d 514,515 (1st Dept 1975) ..................... 9 Secondary Sources Boehm G, Debunking Medical Malpractice Myths: Unraveling the False Premises Behind 'Tort Reform', Yale Journal of Health Policy, Law and Ethics, Vol 5, Iss 1, Article 9 (2005) ................ 8 Restatement Third Torts §43(c) (2012) ................................. 12 Studdert DM, et. aI., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, N Engl, J Med 2006; 354:2024-2033 (May 11,2006) .................................................... 4 Waxman DA, Greenberg MD, Ridgely S, et ai. The effect of malpractice reform on emergency department care. N Engl J Med 2014;371:1518-1525 (October 2014) ............................. 1,2 REPLY TO AMICI'S ARGUMENTS This brief is submitted in Reply to the brief submitted by the amicus curiae parties American Medical Association and the Medical Society of the State of New York (hereinafter "Amici.") Amici argued that 'defensive medicine' costs the nation approximately $70 to $126 billion per year. (Brief at 25.) The newest data indicates that Amici's estimate may be approximately $70 billion to $126 billion off the mark. In October 2014, the New England Journal of Medicine published a study that evaluated defensive medicine in three states that had 'reformed' tort law from a negligence standard to a gross negligence standard. 1 Before discussing their conclusions, the authors of the study noted that "there are few data, however, to show whether physicians would practice differently [in terms of the theory of defensive medicine] if the risk oflegal action were appreciably lowered." (Id. at 1519.) 1 See, Waxman DA, Greenberg MD, Ridgely S, et al. The effect of malpractice reform on emergency department care. N Engl J Med 2014;371: 1518- 1525 (October 2014). Available at http://phdres.caregate.net/jclub-articles/Patel.110414.pdf The study was administered by RAND Health, an independent health research group that is nonprofit and nonpartisan. According to the 2014 study, "Legislation that substantially changed the malpractice standard for emergency physicians in three states had little effect on the intensity of practice, as measured by imaging rates, average charges, or hospital admission rates (Id. at 1518) ... Approximately a decade ago, the state of Texas (in 2004), Georgia (in 2005), and South Carolina (in 2005) changed their malpractice standard for emergency care to 'willful and wanton negligence' (in Texas) and 'gross negligence' (in Georgia and South Carolina) (Id. at 1519) ... Malpractice reforms in Texas, Georgia, and South Carolina ... provide unusually broad protection for emergency physicians. We did not find evidence that these reforms decreased practice intensity, as measured by the rate of the use of advanced imaging, by the rate of hospital admission, or in two of three cases, by average charges. Although there was a small reduction in charges in one of the three states (Georgia), our results in aggregate suggest that these strongly protective laws caused little (if any) change in practice intensity among physicians caring for Medicare patients in emergency departments. We chose study outcomes on the basis of defensive practices that have been identified by emergency physicians in surveys. In one such survey, 70% of the respondents said they often practiced defensively (Id. at 1523) ... In the context of the existing literature, our findings suggest that physicians are less motivated by legal risk than they believe themselves to be. (Id. at 1525.)" The 2014 study published in the NEJM remarkably debunks Amici's defensive medicine hypothesis with concrete data. The article is also remarkable in that it evidences that Amici's marketing campaign and strategies are so intense 2 that Amici have convinced approximately 70% of its constituents that they were practicing 'defensive' medicine when in actuality they were practicing 'good' medicine. The article/study did not address whether any possible negative societal implications arose from Amici convincing 70% of physicians that 'good' medicine was 'defensive' medicine. Amici argued that a conglomerate of insurance companies known as PIAA alleged that average litigation costs was approximately $70,000 to $135,000 in some cases, and up to $253,920 in other cases. (Brief at 24.) Assuming, hypothetically, that the plaintiffs bar spent the same costs per litigation, then for every 100 losses that the plaintiff s bar endured, the plaintiff s bar would be absorbing up to $135 million in unreimbursed losses by brining frivolous lawsuits (utilizing Amici's $135,000 number and not the higher $253,920 number.) Similarly, the plaintiffs bar would have to absorb over $1 billion in unreimbursed losses for every 1,000 losses. Amici further noted that according to the conglomerate of insurance companies, most cases are frivolous. (Id.) If Amici's litigation costs numbers are legitimate, it is unclear how most plaintiffs attorneys are not bankrupt from unreminbursed litigation costs, especially when considering attorneys fees are lower for medical malpractice claims in New York. The fact that the plaintiffs bar is not bankrupt would seem to indicate either (i) Amici's 3 numbers are distorted, or(ii) the insurance industry is incredibly incompetently run. In all probability, it is probably the first scenario. As importantly, and as stated in the main Reply brief, a study by the Harvard School of Public Health evidenced that the interposing of unmeritorious defenses was an underappreciated systemic problem.2 The Harvard study found: "Although the number of claims without merit that resulted in compensation was fairly small, the converse form of inaccuracy - claims associated with [unnecessary medical] error and injury that did not result in compensation - was substantially more common. One in six claims involved errors and received no payment. .. Substantial savings depend on reforms that improve the system's efficiency in the handling of reasonable claims for compensation." (Id. at 2031.) Litigation costs would surely decrease if frivolous defenses were abandoned by Respondents. For example, how often does a defendant-doctor testify, and admit, that he or she actually deviated from the standard of care? 1 out of 1,000? Although physicians often consent to enter into a settlement, almost all defendant- physicians would never testify a deviation occurred. Most physicians are 2 See, David M. Studdert, et. aI., Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, N Engl, J Med 2006; 354:2024-2033 (May 11, 2006). The article is available at http://www.nejm.org/doi/pdf/l 0.1 056INEJMsa0544 79 4 hardworking, honest and diligent, yet they no little about litigation. Most physicians' testimony is shaped by the recommendations and viewpoints of their insurers. For example, most, if not all, defendant-doctors testify that no medical literature, medical textbooks, or medical studies are 'authoritative' sources of information, thereby blocking the reasonable review of the relevant case-specific medical literature. Are all defendant-doctors trained in all medical schools that all literature is not 'authoritative' sources? Or is it an unmeritorious legal strategy utilized? Though Amici's constituents are concerned about frivolous lawsuits, almost every single one of them would, or has testified, in a manner that renounces and devalues objective medical literature based on the recommendations of their insurers. The incongruency from Amici's public positions and their insurers' litigation tactics is pronounced. For example, the medical industry often argues that 'real' mistakes do not occur, and only 'charting errors' occurred (i.e., a patient was warned, but it was not charted.) The 'charting error' defense uses alleged administrative incompetence as a 'sword' to try to fog out and misdirect from true medical mistakes. It is a defense that typically has no factual foundation in any sense (Emphasis Supplied)- as there is typically no way to prove that a charting mistake occurred- in the context that the defense is usually utilized such as in failure to warn cases- yet it is a defense that is always theoretically possible, so 5 the medical industry often utilizes it, or implies that a 'charting error' occurred, when no valid medical defense exists. Often the 'charting mistake' defense is disingenuous, and the defense loses sight of the fact that medical charting errors often lead to unnecessary patient deaths- and medical charting is not an insignificant aspect of the medical business. (Though a jury cannot usually be told that 'charting errors' have led to countless unnecessary deaths.) What the 'charting mistake' defense attempts to do is disassociate the relevant medical records from the issues in the case. And of course, if the relevant medical records are disassociated from the relevant issues, then the case becomes much more of a guessing game, and determining if Respondents acted appropriately becomes more of a guessing game, which is precisely what Respondents want when meritorious claims are interposed. When the medical records disprove the plaintiff's case, it is a frivolous lawsuit. When the medical records disprove the defendant's case, it is often disingenuously deemed a 'charting mistake.' A viewpoint that trivializes the importance of medical charting probably increases unnecessary patient deaths. It is also a viewpoint that forwards the concept oflack of transparency. It is a viewpoint that helps to derail an independent review of Respondents' actions. Undisputedly, complete and 6 accurate records/chart have a significant medical purpose, and yet complete and accurate records/chart also have an invaluable societal 'oversight' purpose in allowing an objective review of Respondents' actions. The 'charting mistake' defense is truly a veiled attack on oversight and transparency. The legal strategy of refusing to recognize any objective medical literature as 'authoritative' and the 'charting mistake' legal defense are Respondents' means to remove any 'checks' in the legal system, allowing them to interpose any defense they see fit. In other words, it is in New York's best interest that Respondents be forced to create reliable documentation. Probably the only thing that will stop the 'charting mistake' defense is holdings from this Court, or the Appellate Divisions, forbidding the medical industry from using a defense that has absolutely no legitimate factual foundation. Moreover, in the year 2015, it would seem reasonable modifications in the medical charting system could occur that create more accuracy (to the extent it is necessary). Yet, if this occurred, then more transparency would also occur regarding the 33% of patients who are exposed to unnecessary medical mistakes. There is a reason why Amici, Respondents, and their insurers advocate for certain changes in the legal system, but they do not advocate for, or take action with, other reasonable changes. 7 Indeed, if Respondents, and their insurers, believe that litigation costs are too high, they can easily alter their litigation patterns and other practices in a productive way. Yet, since 1 in 6 meritorious claimants receive no compensation for the harm committed upon them, the litigation costs of Respondents' tactics may be paid off by the insurers' savings earned by denying recovery to victims. 3 Thus, knowing the alleged litigation costs of Amici's insurers is either misleading, or meaningless, without knowing how much Amici's insurers save in defeating meritorious claims with unmeritorious defenses. (Arguably, it would be naive to believe that Amici's insurers have not conducted a detailed in-house cost- benefit analysis relating to how many times they win with unmeritorious defenses as oppose to saved litigation costs.) Additionally, litigation costs have little to nothing to do with the quality of New York's medical treatment, nor do they have much to do with malpractice insurance premiums. See, Boehm G, Debunking Medical Malpractice Myths: Unraveling the False Premises Behind 'Tort Reform', Yale Journal of Health Policy, Law and Ethics, Vol 5, Iss 1, Article 9 (2005), at 364-366; 368 ("Historically, the cause of skyrocketing [insurance] rates has little to do with the 3 Of course, such a strategy by insurers wastes immense judicial resources, yet such a societal waste does not effect the insurers' bottom line so is probably deemed irrelevant. 8 legal system. Insurance companies make profits primarily from investment income.,,)4 Amici argued that a third-party duty should not exist because physicians would have to unduly disclose confidential information of the patient. (Brief at 27.) In this case, Ms. Walsh sued Respondents directly, and filed a third-party action against Respondents. She waived any privilege. This will be the situation in most similar cases in the future. Amici compared this case to Pulka v. Edelman, 40 NY2d 781, where it was alleged that the manner in which a defendant parking garage was operated caused drivers exiting the garage to negligently drive over the sidewalk. (Brief at 12-15.) More specifically, the Pulka facts were "[l]iability was imposed on the garage based on testimony that it knowingly permitted its employees and patrons to drive out of the facility and across the adjacent sidewalk without first stopping, as required by statute." Pulka v. Edelman, 50 AD2d 514,515 (lst Dept 1975). In Pulka, this Court focused its analysis on whether the parking garage had a duty to 'control' the patron. This Court found no such duty to control for two reasons that are arguably relevant to this case. First, Pulka found that no 'special 4 Link to article available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?miicle= 1107 &context=yj hple 9 relationship' existed between the parking garage and patron requiring the duty to control. The fact that a parking garage-patron relationship is not a 'special relationship' has little to nothing to do with whether a doctor-patient relationship is a 'special relationship.' Secondly, Pulka said assuming arguendo that the parking garage-patron relationship was a special relationship, then for the 'control' doctrine to apply, it must be found that a "reasonable opportunity to control" existed. And such a 'reasonable opportunity' did not exist in Pulka. (Id. 783-784.) In contrast, herein, a 'reasonable opportunity' to 'control' did exist- as Ms. Walsh did not leave the hospital A.M.A., and she was following all directives. Respondents were actually controlling Ms. Walsh at all relevant times prior to their decision to discharge her. Additionally, in this case, Ms. Walsh- and all similarly situated patients- had impaired abilities to think and reason because of the administration of the medications. This was not the situation with the driver of the car in Pulka. Consequently, the intermediary's ability to self-protect and act reasonably is more inhibited in this context than in Pulka. Correspondingly, a more tenuous causal connection existed in Pulka between the final harm to the third-party and the alleged negligence of the parking garage. While here the causal connection is 10 more direct and stronger because Respondents removed the patient's ability to self-protect. Amici quoted the Pulka Court stating "it would be most unfair to impose" a duty on garage operators ... (Briefat 12-13.) What Amici omitted in the brief was that the quoted language from Pulka was referring to whether a 'special relationship' should be deemed to exist between the parking garage and individuals using the sidewalks (third-parties)(i.e., the second of the two ways a 'special relationship' can be forged.) In this case, Appellant has not even argued that a special relationship existed between Respondents and Appellant- and Appellant has only argued that a 'special relationship' existed between Respondents and Ms. Walsh, allowing the 'control' doctrine to apply. Thus, Amici cited to language regarding an argument that Appellant has not actually interposed, and Amici cited to language that Pulka never related to the argument that Appellant has actually interposed. In contrast, and in relation to the argument that Appellant actually interposed, Pulka stated "to say that a duty to use care arose from the relationship of the garage to its patrons when there was no opportunity to fulfill that duty, places an unreasonable burden on the garage, indeed." (Id. at 784.) (Emphasis Supplied.) Consequently, as to the argument Appellant actually interposed, Pulka found that it would be unfair to impose a duty 11 to control 'when there was no opportunity' to control. Here, such an opportunity existed. Amici relied on Ellis v. Peter, 211 AD2d 353 (2d Dept 1995). (Brief at 21- 22.) In Ellis, the third party plaintiff-wife contracted tuberculosis from her plaintiff-husband, whose tuberculosis was mis-diagnosed. The plaintiff-wife alleged that the defendant-doctor failed to warn her about the existence and nature of the disease. In Ellis "because the doctor did not know of the patient's tuberculosis, there could be no violation of the duty to warn." Moreta v. New York City Health & Hospitals Corp., 238 AD2d 149 (lst Dept 1997), interpreting Ellis. In contrast to Ellis, here, Respondents were aware of the harm, because they created and caused the cognitive impairment, and had knowledge of the need for a warning. In effect, Respondents failed to warn about a harm that they knowingly created. The lack of knowledge and notice in Ellis is one distinction with this case. Yet, as stated in the main Reply, Restatement 3d Torts §43( c) states that third-party liability could exist when "the person to whom the services are rendered ... relies on the actor's exercising reasonable care in the undertaking." (Emphasis Supplied.) Appellant asserted that the patient should be allowed by this Court to rely on the entirety of the 'undertaking' and not just part of the 12 undertaking. Ellis raises a question- not raised on the facts of this case- namely if Respondents are negligent in the undertaking- negligent in the 'course of conduct'- causing Respondents to not diagnose a contagious disease, and the patient detrimentally relies, then should accountability exist to a third-party victim? That answer is a closer call than here, admittedly, because of the notice and obvious and known risk here. Correspondingly, finding a third-party duty when Respondents violated discharge protocols regarding an obvious and known risk, as herein, seems an easier application of principles. Yet, the answer to a case like Ellis- where less notice exists- may come down to what competency standards is best to impose on the medical industry? De minis competency standards and more legal immunity? Or moderate competency standards with more accountability? Which is best to motivate improvement and better treatment and protection for all New Yorkers? Typically, more accountability is usually the more prudent approach, especially when an industry is notorious for not reporting mistakes and underplaying human harm. 13 CONCLUSION Amici's brief argued that privity defines duty- though Amici made a special effort to stay away from using the term 'privity'. Amici want this Court to issue a holding embracing a legal doctrine that Amici are afraid to explicitly name in their brief. Amici's brief labeled important societal obligations as obligations to the 'community at large.' And Amici argued that a duty to another who is not in privity is a duty to the 'community at large.' Amici's arguments infer that the Court should have a compartmentalized view of New York society, and Amici's brief implies that Respondents should have no societal responsibilities to anyone except their patients and themselves. Amici's contractual framework/prism is self-centric, and not utilitarianistic. Reading Amici's brief, it is hard to gleam if Amici understand that they are part of and not separate from the' community at large.' Dated: Garden City, New York February 23, 2015 14 Respectfully submitted, DELL & DEAN, PLLC Attorneys for Plaintiffs-Appellants 1325 Franklin Avenue, Suite 100 Gard City, New York 11530 15