Illinois Association of Defense Trial Counsel P.O. Box 7288, Springfield, IL IDC Quarterly Vol. 8, No. 3 (8.3.i) THE IDC MONOGRAPH:

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1 THE IDC MONOGRAPH: EVOLVING TRENDS IN MEDICAL LIABILITY LAW Thomas B. Borton Livingston, Barger, Brandt & Schroeder Champaign, Illinois Robert W. Brunner Haskell & Perrin Chicago, Illinois Linda J. Hay Alholm, Monahan, Keefe & Klauke Chicago, Illinois Anne M. Oldenburg Alholm, Monahan, Keefe & Klauke Chicago, Illinois Thomas S. Reed Alholm, Monahan, Keefe & Klauke Chicago, Illinois Mark J. Smith Fedota, Childers & Rocca Chicago, Illinois Evolving Trends in Medical Liability Law Introduction By: Linda Hay Alholm, Monahan, Keefe & Klauke, Chicago Medical malpractice law continues to evolve and adapt to developments in the field of medicine, as well as fundamental changes in the infrastructure of the health care industry. As a result, defense counsel must respond Page 1 of 28

2 to present the best defense for their clients. In this Monograph, members of the Medical Liability Committee address developments in medical liability law which are of critical concern to defense counsel and their medical clients. The Monograph begins with Mark Smith s article on informed consent and the HIV-positive physician. Mark analyzes the potential liability of health care providers infected with HIV as the medical condition of the physician concerns the issue of informed consent. The next article, written by my co-chair, Thomas Borton, provides an update on the law in Illinois regarding the qualifications of standard of care witnesses, a pivotal issue in most medical liability litigation. Next, Anne Oldenburg and Thomas Reed provide an update on federal regulations and state statutes governing insurers and health care providers reporting requirements, a topic of grave concern to every medical practitioner. Finally, Robert Brunner discusses the ramifications of recent case law which increases the potential liability exposure of managed care organization. Part I Informed Consent and the HIV-Positive Physician By: Mark J. Smith Fedota, Childers & Rocca, Chicago Introduction The Supreme Court of Illinois is currently considering a petition for leave to appeal the decision of the Appellate Court of Illinois, First District in Jane Doe v. John Noe. 1 If the Supreme Court chooses to hear the case, one of the issues it may consider is whether an HIV-infected physician owes his patient the duty to disclose his HIV status in order to obtain informed consent to perform any invasive procedure which exposes the patient to the risk of HIV transmission. The First District s opinion in the Doe v. Noe case raises several practical and philosophical questions about the state of the law of informed consent, the role of the N.E.2d in interpreting and applying the law, and the role of the expert witness to aid a jury in determining when a physician has discharged his duty to obtain informed consent. For those who represent health care professionals and institutions, it has become very important to study and consider the ramifications of HIV-infection among their clientele. This is especially true in what remains an almost hysterical environment in which the general public fears contracting the disease. In order to counsel HIV-infected health professionals and those who supervise their activities, one must think about informed consent and examine what Illinois courts have recently done in this area of the law. This article examines the law of informed consent in the context of the recent decisions of the Appellate Courts of Illinois that address issues of informed consent and HIV-infected health care professionals. The conclusion we reach is that the courts should not decide which risks are worthy of disclosure and which are not, a position that is consistent with what has long been the law of informed consent. However, the recent decision of the First District in Doe v. Noe is a departure that must be examined. This article also examines the positions taken by organizations on the front lines of the AIDS epidemic insofar as their policies potentially affect the standard of care applicable to HIV-infected physicians in informed consent cases. Their reliance upon experts to assess the risks inherent in particular circumstances underscores the difficulty with any court s decision to decide what a physician should disclose to his patient when obtaining informed consent. The Cause of Action for Lack of Informed Consent Page 2 of 28

3 There are four elements to the cause of action for lack of informed consent. The plaintiff must plead and prove that (1) the physician had a duty to disclose material risks, (2) he failed to disclose or inadequately disclosed those risks, (3) as a direct and proximate result of the failure to disclose, the patient consented to, and (4) plaintiff was injured by the proposed treatment. 2 Duty In a general sense, the physician s duty to disclose material risks has been established as a matter of law. Courts in Illinois have consistently held that a physician is obligated to inform patients of foreseeable risks, results and alternatives to any given procedure. 3 What constitutes a material foreseeable risk, result or alternative is a factual question of the standard of care. In other words a physician must disclose that information that a reasonably well qualified physician would disclose under the same or similar circumstances. 4 Physicians are not required to disclose every conceivable risk which possibly could develop. 5 Because of the special relationship a doctor has with his patient, the courts have required the physician to exercise discretion in prudently disclosing information in accordance with his patient s best interests. 6 The First District in Miciekis v. Bond recognized that too much disclosure, particularly of remote risks, may be a detriment to the patient. 7 As in any other medical negligence cause of action, the informed consent case requires proof of the standard of care by expert testimony. 8 The First District in Green v. Hussey 9 held: [Plaintiff]... had the burden of proving by expert medical evidence that the reasonable medical practitioner of the same school, in the same or similar circumstances, would have told the patient of such risks, or that the disclosures as made by the defendants did not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances. 10 Proximate Cause In order to establish proximate cause the plaintiff must prove that she would not have given consent to the proposed treatment if the risk she alleges was not disclosed had been fully disclosed at the time she gave consent. 11 The majority of jurisdictions, including Illinois, follows the objective standard set forth in Guebard v. Jabaay. 12 The Guebard Court held that in order to prove the causal connection, the plaintiff must establish that a reasonable person would not have consented to the procedure or treatment if the physician had disclosed the information at issue. 13 Some courts in Illinois have held that proximate cause must be proven by expert testimony. 14 Other courts have held that expert testimony is not required to prove proximate cause. 15 The First District in Coryell v. Smith, a recent decision on the subject of proximate cause in a lack of informed consent case, held that the jury was in the best position to determine what a reasonable person would do under the particular circumstances of any given case. 16 Injury To prevail in a cause of action for lack of informed consent the plaintiff must prove that the undisclosed risk came to fruition. Intuitively it seems that a plaintiff is not likely to bring a cause of action alleging lack of informed consent unless the risk that was allegedly undisclosed is something that eventually occurred as a result of the treatment. Though a cause of action absent the manifestation of any undisclosed risk it is unlikely to prevail. The United States Court of Appeals, District of Columbia Circuit, addressed this issue in a 1972 decision: No more than breach of any other legal duty does nonfulfillment of the physician s obligation to disclose alone establish liability to the patient. An unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without consequence. 17 Therefore, Page 3 of 28

4 the only compensable injury in an informed consent case is the occurrence of the risk that was allegedly undisclosed. Lack of Informed Consent Distinguished from Battery Plaintiffs may attempt to allege a cause of action for battery, as an alternative to lack of informed consent. There is a distinction between the two causes of action, but it can be a fine line. Stated simply, the difference between the causes of action is that the lack of informed consent claim concedes that the plaintiff at least consented to the touching which was necessitated by the treatment. The battery cause of action exists only when there was no consent to the touching. If the plaintiff consented to the touching and claimed subsequently that she gave consent without knowing all of the risks, she simply has no cause of action for battery because she gave consent, albeit allegedly uninformed. In Lojuk v. Quandt 18 the United States Court of Appeals, Seventh Circuit, discussed the distinction: Illinois law distinguishes between medical malpractice cases alleging no informed consent and those claiming a total lack of consent to the medical procedure in question. [Citation.] Informed consent cases concern the duty of a physician who has obtained consent to perform a medical procedure to disclose fully the risks associated with that procedure. Such cases are viewed as negligence actions. Total lack of consent cases involve a physician who undertakes to treat a patient without the patient s consent; absent consent, it is meaningless to require the disclosure of risks necessary to an informed decision. Rather, total lack of consent cases are treated as batteries because they involve an intentional unauthorized touching of the person of another. When an HIV-positive physician treats a patient without disclosing his HIV infection, the patient may later attempt to plead a cause of action for battery, arguing that, while she did consent to the treatment, she did not consent to treatment by a physician who is HIV-positive. Such a failure to disclose, she may argue, negated her consent and rendered any touching a battery. There is, however, no support in Illinois law for such an argument. In fact, recent precedent in Illinois lends support against such an argument. In Doe v. Northwestern, 19 a case currently before the Illinois Supreme Court, plaintiffs alleged battery when they learned that a dental student who was HIV positive had treated them, a fact of which they had been unaware during the treatment. 20 The trial court dismissed the battery claim and the plaintiffs argued on appeal that while they consented to treatment in general by the dental student, they stated a cause of action for battery because they never consented to treatment by a student infected with HIV. 21 The First District affirmed the trial court s dismissal of the battery claims because the plaintiffs had consented to the treatment thus giving them a potential claim for lack of informed consent but no cause of action for battery. 22 The Decision in Doe v. Noe The Appellate Court of Illinois, First District, considered the following certified question: Whether an HIV positive physician has a duty to disclose his or her HIV status to a patient when seeking the patient s consent to perform an invasive medical procedure which exposes the patient to the risk of HIV transmission. 23 The Doe v. Noe Court held in response to the question that an HIV positive physician should disclose his or her HIV status to a patient who is going to submit to an invasive surgery. 24 The Doe v. Noe case involved allegations that an HIV-infected obstetrician/gynecologist performed dilatation and curretage on his patient without first disclosing to her that he was HIV-positive. 25 One need not know anything about dilatation and curretage in order to see that there is something curious about the Court s Page 4 of 28

5 holding. In light of the state of the law of informed consent in Illinois, one might ask, how a Court could decide that the physician s alleged HIV-positive status constituted a material or foreseeable risk. The Doe v. Noe Court considered the question of this duty in the context of an informed consent case. 26 The Court specifically said that [a] physician s duty to disclose is incorporated and defined in the doctrine of informed consent. 27 The Court quoted from Weekly v. Solomon: [a] physician has a duty to inform patients of the foreseeable risks and results of a given surgical procedure, and the reasonable alternatives to such procedure. 28 However, rather than follow the Weekly Court s lead when it stated that expert testimony is required to establish the standard of care concerning disclosure and whether the physician complied with the standard, the Doe v. Noe Court found itself persuaded by a holding of the state of Maryland s highest court in a case called Faya v. Almaraz. 29 It held, without the benefit of any expert testimony, that the defendant had a duty to disclose. The Decision in Faya v. Almaraz The Doe v. Noe Court relied exclusively upon the Faya decision for its conclusion and for that reason a close look at Faya is necessary. The Faya Court heard companion cases that presented... the important question whether a surgeon infected with the AIDS virus has a legal duty to inform patients of that condition before operating upon them These companion cases were filed by two former patients of an oncological surgeon who operated on each when he knew that he was HIV-positive and later suffering from AIDS. 31 The plaintiffs alleged that the physician had not informed them of his HIV status prior to performing invasive surgical procedures. 32 Among other causes of action, the plaintiffs stated claims alleging lack of informed consent due to the physician s and the hospital s failure to advise them that the physician was HIV-positive, and at another point in time during the treatment, afflicted with AIDS. 33 The plaintiffs specifically alleged that the physician had failed to inform them of the risk that they may contract HIV as a result of his participation in the proposed procedures. 34 The plaintiffs were particularly concerned in retrospect about the possibility that the physician may have lacerated or punctured himself and that his blood could have mixed with theirs, thus infecting them. 35 They both alleged that had they known of the doctor s illness and the possibility that he could have transmitted the disease to them, they would not have consented. 36 Both plaintiffs underwent testing when they learned that their physician had died of AIDS and both tested negative. 37 There was no expert testimony considered. The defendant in Faya prevailed in the trial court on a motion to dismiss. 38 The trial judge held that the plaintiffs had failed to plead a compensable injury, claiming only a...fear that something that did not happen could have happened. 39 The thrust of the plaintiffs complaints in the Faya case, at least as that Court saw it within the numerous causes of action they stated, was that the defendant physician was allegedly negligent because he failed to disclose his HIV-positive status before performing invasive surgical procedures. 40 The plaintiffs maintained the argument that the physician s duty to abide by the standard of care required him to disclose the risk of transmission of the disease, however slight that risk was. 41 Rather than dismissing their claims, the plaintiffs argued that the trial court should have allowed a jury to hear the evidence of the defendant physician s conduct and decide whether it was negligent. The Faya Court simply and explicitly agreed with that argument. 42 W hen the Faya Court considered the concept of duty in the context of the case before it, it turned for guidance to its own precedent of B.N. v. K.K. 43 That case involved allegations by a nurse that a physician with whom she had had an intimate relationship was negligent for failing to tell her that he had genital herpes. Focusing on the foreseeability of transmission of his disease, the Court held that the doctor had a duty to either refrain from sexual contact with another or inform his potential partner of the risk of transmission of his disease. 44 Page 5 of 28

6 Applying the same principle in its own case, the Faya Court held that it was foreseeable that the defendant physician could transmit HIV to a patient during an invasive procedure. 45 The Court concluded:... we are unable to say, as a matter of law, that Dr. Almaraz owed no duty to the appellants, either to refrain from performing the surgery or to warn them of his condition. 46 The Faya Court found it important to discuss at length, the available medical literature concerning how the disease is passed and the risk that it could be transmitted through infected health care providers and it gave great weight to the severity of the consequences in the event the disease is transmitted. But when it came to stating conclusions rather than dicta, the Court agreed with the argument that a jury should decide whether the defendant s conduct fell within the standard of care. When it had its opportunity to affirmatively impose a duty, the Faya Court was at the very least, equivocal, saying in double negative that it could not say that there was no duty to disclose. It seemed to be saying that it could not answer its own question outright but that someone else would have to answer the question rather than any court. Surely if the Faya Court had sought to impose a duty to disclose, it would have answered its central question with an emphatic and simple yes. Although the Faya Court did not provide any declarative answer in the affirmative to the question whether the HIV-positive physician owes his patients a duty to disclose his HIV status when obtaining informed consent, the First District in the Doe v. Noe case read the Faya Court s opinion as if it had. The Doe v. Noe Court correctly quoted from Faya what it considered to be the issue: whether a surgeon infected with the AIDS virus has a legal duty to inform patients of that condition before operating on them. 47 In the next line of its opinion, the Doe v. Noe Court said: [t]he Faya Court found that such a legal duty existed. 48 The Doe v. Noe Court later declared: [w]e find that the decision in Faya is persuasive and comports with our already well-established general principles of duty and our particular doctrine of informed consent. 49 Indeed, the Faya Court s decision is persuasive and it does, in part, comport with the principles of the law of informed consent in Illinois. What the Faya decision does not do is lend support to any finding that there exists a legal duty on the part of an HIV-infected physician to disclose his infection to his patients when obtaining informed consent for an invasive procedure. The Faya Court simply concluded that it could not say there was no duty; so, let the jury decide. The Experts One of the more troubling questions raised by the Doe v. Noe decision is how the court expects trial judges to decide what procedures are invasive to an extent that they expose a patient to the risk of HIV transmission and thus require disclosure of HIV-infection by the physician when obtaining informed consent for the procedure. Not even experts who have published on the subject agree. In 1991 the United States Department of Health and Human Services Public Health Service and the Centers for Disease Control (CDC) published its Recommendations for Preventing Transmission of Human Immunodeficiency Virus and Hepatitis B Virus to Patients During Exposure-Prone Invasive Procedures. 50 The CDC reported that the current data suggested that the risk of transmission of HIV from an infected health care provider to a patient was small and that a precise assessment of the risk [was] not yet available. According to its report, the CDC investigated a group of HIV infected patients in one AIDS stricken dentist s practice and determined that its results strongly suggested that of the 850 patients studied, five of them contracted the disease as a result of their dental care. 51 The CDC report also discussed two other studies in which 75 patients of a general surgeon and 62 patients of a surgical resident both of whom had AIDS. None of those patients tested positive. In another study 143 patients of an AIDS-infected dental student tested negative. In yet another investigation cited by the CDC in its report, 1,340 patients of an AIDS-infected surgeon were tested for HIV. One patient was found to be infected. That patient was a known intravenous drug user who may have already been HIV-positive at the time of surgery. 52 The CDC could not make an estimate of the risk of HIV-transmission from health care provider to patient on the basis of the data in these studies. In its report, the CDC discussed the characteristics of exposure prone procedures in the context of what it was able to determine about the infectivity of hepatitis B and concluded that the same exposure prone Page 6 of 28

7 procedures would be expected to pose a substantially lower risk, if any, of transmission of HIV The CDC described exposure prone procedures: Characteristics of exposure-prone procedures include digital palpation of a needle tip in a body cavity or the simultaneous presence of the HCW s (health care worker s) fingers and a needle or other sharp instrument or object in a poorly visualized or highly confined anatomic site. Performance of exposureprone procedures presents a recognized risk of percutaneous injury to the HCW, and-if such an injury occurs-the HCW s blood is likely to contact the patient s body cavity, subcutaneous tissues, and/or mucous membranes. 54 Despite the low risk of transmission, the CDC recommended that health care workers who are infected with HIV should not perform exposure-prone procedures unless they have sought counsel from an expert review panel and been advised under what circumstances, if any, they may continue to perform these procedures. 55 As far as informed consent is concerned, the CDC recommended that infected health care workers advise prospective patients before they undergo exposure-prone procedures. 56 In addressing the concern about whether HIV-infected health care workers should be permitted to perform invasive procedures, the American Medical Association, in its 1994 Digest of HIV/AIDS Policy, 57 stated that the answer to that question should be should be reached in light of individual circumstances. Noting that transmission of the disease from a physician to a patient was only a theoretical possibility, an actual case of which is yet to be reported, the AMA nonetheless took the position that the physician should err on the side of patient protection. 58 With patient protection in mind, the AMA recommended that HIV-infected physicians should not perform procedures that pose a significant risk of HIV transmission without the informed consent of the patient. 59 The clear implication is that the AMA considers disclosure of HIV-infection and the possible transmission to be integral to obtaining informed consent. In its most recent Policy Compendium, the AMA stated that HIV-positive physicians who know that they are infected should not perform any services that carry risk of transmission. The physician, says the AMA, should consult colleagues to determine what services they can deliver without creating the risk of transmission. 60 In its Policy Compendium, the AMA also recommends that the physician who is HIV-positive should notify a state public health official or local review committee, which should consist of medical experts, at least one of whom should have some familiarity with the infected physician. 61 The AMA contemplates that the committee would determine what patient care the physician may perform given the risk of transmission as the committee determines it exists. 62 The AMA also charges the local committee with advising the infected physician concerning the need to inform patients of his infection. 63 The AMA does not set forth any absolute duty to inform but does recommend that the infected physician not perform exposure prone procedures without approval of the committee and informed consent of the patient. 64 The American College of Obstetricians and Gynecologists Committee on Ethics had this to say about the HIV-infected physician: In making decisions about patient care activities, a physician who is infected with HIV should adhere to the fundamental professional obligation to avoid harm to patients. There are aspects of obstetrics and gynecology that do not involve measurable risk of transmission of infection. Some patient care activities, however, such as surgery and obstetric deliveries, may involve some potential exchange of bodily fluids. Each infected physician must make a decision as to which procedures he or she can continue to perform safely. This decision will depend upon the physician s level of expertise, the particular surgical techniques involved, and the physician s medical condition, including mental status. The decision should be made in conjunction with such responsible individuals as his or her personal physician, the chief of the department, the hospital s director of infectious diseases, the chief of the medical staff, or with a specialized advisory panel. 65 Page 7 of 28

8 ACOG makes no recommendation concerning informed consent but defers, instead, to those with expertise and familiarity with the particular situation. In an article summarizing the general consensus among attendees and speakers at a conference at the University of Medicine and Dentistry of New Jersey-New Jersey Medical School on the subject of HIVpositive health professionals, Dr. David M. Price, the program director of the conference, set forth several points that shared widespread agreement or striking clarity. 66 One of those points of agreement/clarity was that [r]equirements that infected professionals inform their patients are inappropriate. 67 This informed consent, in the view of those present at the conference, which included physicians, nurses, dentists, health care attorneys, ethicists and public health officials from throughout the country, does not absolve either professionals or hospitals of their ethical and legal responsibility. 68 Dr. Price reported that those who participated found that the patient s protection, the apparent goal of informed consent, was illusory and that the damage to conscientious HIV-infected professionals was unjustified in these cases. 69 Finally, having acknowledged that the AMA and ADA recommended disclosure for informed consent after the New Jersey conference, Dr. Price maintained that at the conference such policies not only failed to win support, but were roundly and, it seemed, definitively attacked by thoughtful analysts representing several disciplinary perspectives. 70 He argued that the risk of transmission should not be disclosed if it is far less than the risk of so many other maloccurrences, and if the risk is believed to be significant then the procedure should not be performed regardless of whether the patient has given informed consent. 71 n 1992, the American Hospital Association criticized the I CDC s recommendation that HIV-infected physicians disclose their infection when obtaining informed consent. 72 The AHA wrote: Such a recommendation is inconsistent with the traditional doctrine of informed consent, which has not applied to relatively remote risks. If an expert panel has already made a determination that a health care worker poses no reasonable risk to a patient, disclosure of the health care worker s infection status unnecessarily invades the health care worker s privacy and almost guarantees that the health care worker will be unable to continue his or her practice. The practical effect of the patient notification requirement is to prohibit HIV-infected health care workers from practicing, particularly if the practice involves invasive procedures, even if the risk of exposure during such procedures is remote. 73 Of course the AHA does not recommend that HIV-positive physicians be required to disclose their HIV status when obtaining informed consent. These references scratch the surface of the debate. However, there seems to be an overall agreement that experts familiar with particular situations and circumstances are best positioned to determine which risks are real and which are not. None of the references indicate that a court is in the best position to determine what risks should be disclosed. Conclusion In Illinois, one court has held that an HIV-positive physician has a legal duty to disclose his infection to a patient when obtaining informed consent for an invasive procedure which creates a risk of transmission of the disease. The Court issued that opinion in the context of a case in which dilatation and curretage were the procedures and an obstetrician/gynecologist was the specialty of the physician. Was the Court truly qualified to determine that, in a such circumstances, the risk of transmission from that particular obstetrician/gynecologist to that particular patient during dilatation and curretage was material and foreseeable? Will trial courts of this state keep up with the specialized medical knowledge required to determine, on a case-by-case basis, when the Page 8 of 28

9 duty to disclose applies-specifically, when the combination of the type of procedure, specialty of physician and other factors combine to make HIV transmission a material foreseeable risk? There is really no need to change the informed consent law in Illinois in the way the Doe v. Noe case has apparently done. For now, however, be aware that the hysteria surrounding HIV and AIDS does not stop at the courthouse steps. Endnotes N.E.2d 1012, 228 Ill.Dec. 938 (1 st Dist. 1997) 2 Coryell v. Smith, 653 N.E.2d 1317, 210 Ill.Dec. 855, 857 (1st Dist. 1995) 3 Magana v. Elie, 439 N.E.2d 1319, 64 Ill.Dec. 511, 513 (2nd Dist. 1982), citing, Taber v. Riordan, 403 N.E.2d 1349, 1353, 38 Ill.Dec. 745, 749 (2nd Dist. 1980). Leave to appeal denied; Miceikis v. Field, 347 N.E.2d 320, 324 (1st Dist. 1976), leave to appeal dismissed; Ohligschlager v. Proctor Community Hospital, 283 N.E.2d 86,89 (3rd Dist. 1972), rev d on other grounds (1973), 55 Ill. 2d 411, 303 N.E.2d 392; Green v. Hussey, 262 N.E.2d 156, 161 (1st Dist. 1970) 4 5 Taber v. Riordan, 403 N.E.2d 1349, 38 Ill.Dec. 745, 749 (2nd Dist. 1980), citing, Miceikis v. Field, 347 N.E.2d 320, 324 (1976) 6 Miceikis v. Field, 347 N.E.2d 320, 324 (1st Dist. 1976) 7 8 Green v. Hussey, 262 N.E.2d 156, 161 (1st Dist. 1970) Coryell v. Smith, 653 N.E.2d 1317, 210 Ill.Dec. 855, 857 (1st Dist. 1995) Ill.Dec. 498, 452 N.E.2d 751 (2 nd Dist. 1983) Hansbrough v. Kosyak, 95 Ill.Dec. 708, 490 N.E.2d 181 (4th Dist. 1986); St. Gemme v. Tomlin, 455 N.E.2d 294, 74 Ill.Dec. 264 (4th Dist. 1983); Green v. Hussey, 262 N.E.2d 156 (1st Dist. 1970) 15 Casey v. Penn, 362 N.E.2d 1373, 6 Ill.Dec. 453, (2nd Dist. 1977), citing, Borowski v. Von Solbrig (1975), 60 Ill. 2d 418, 423, 328 N.E.2d Coryell, 210 Ill.Dec. at Canterbury v. Spence, 464 F.2d 772, (D.D.C. 1972) F.2d 1456, 1460 (7th Cir. 1983) N.E.2d 145, 224 Ill.Dec. 584 (1st Dist. 1997) 20 at at Doe v. Noe, 690 N.E.2d 1012, 228 Ill.Dec. 938, 940 (1st Dist. 1997) 24 at at at , citing, Faya v. Almaraz, 329 Md. 435, 438, 620 A.2d 327, 328 (1993) 30 Faya, 329 Md. at at at at at at at at , citing, B.N. v. K.K., 312 Md. 135, 538 A.2d 1175 (1988) Faya, 329 Md. at 448. Page 9 of 28

10 46 47 Doe v. Noe, 228 Ill.Dec. at Center for Disease Control, Morbidity and Mortality Weekly Report Recommendations and Reports, July 12, 1991, Vol. 40, No. RR-8, Pages at American Medical Association, Department of HIV, Division of Health Science, Digest of HIV/AIDS Policy, January, at AMA Council on Long Range Planning and Development in cooperation with the Council on Constitution and Bylaws, and the Council on Ethical and Judicial Affairs, Policy Compendium, Copyright at at ACOG Committee Opinion, Number 130-November, 1993: HIV Infection: Physicians Responsibilities 66 Price, David, What Should We Do About HIV-Positive Health Professionals?, Arch Intern Med, Vol. 151, April 1991, p American Hospital Association, AIDS/HIV Infection Recommendations for Health Care Practices and Public Policy, Copyright 1992, p Part II Standard of Care Witnesses By: Thomas B. Borton Livingston, Barger, Brandt & Schroeder Bloomington The medical profession continues to develop more intricate and discrete areas of specialty. Fields such as orthopedics, pediatrics, obstetrics and gynecology have been divided into several subspecialty areas. In addition, we see new practice areas in the healthcare field developing, such as nurse practitioners. The expansion of different types of healthcare providers and the ongoing development of specialized and concentrated fields of practice will no doubt add to the debate as to who should be permitted to give opinion testimony as to the standard of care in medical malpractice cases. With a couple of rare exceptions, expert testimony is necessary in a medical malpractice case to establish the standard of care applicable to the defendant. 1 Hence, most medical malpractice cases are viewed as a battle of the experts, 2 with a great deal of discovery focusing on where prior and subsequent treaters fall on the standard of care issue. The issue of whether a witness is qualified to render opinion evidence is a matter for the court to decide. 3 The court s decision on the competency of a witness to render testimony will only be set aside if it is found to be an abuse of discretion. 4 Illinois law defines an expert as follows: Page 10 of 28

11 An expert witness is a person whose special knowledge, skill, experience, training, or education is determined by the trial court to qualify said witness to testify to an opinion, based upon the witness experience, because the opinion will aid the trier of fact in resolving a question which is beyond the understanding or competence of persons of common experience. 5 Both the Illinois legislature and courts recognize that the issue of who should be permitted to give expert testimony on the standard of care in a medical malpractice case, requires special attention. Due to the importance of the issue involved, the Illinois Supreme Court and the legislature have attempted to provide additional guidelines to assist in determining who is competent to render testimony on the standard of care. Unfortunately for the practitioner, the guidelines are vague and it is not easy to determine with certainty who will be allowed to give standard of care testimony and who will not. Key Supreme Court Cases In Dolan v. Galluzzo, 6 the Illinois Supreme Court enumerates the factors to be considered in deciding the threshold question of who is competent to give standard of care testimony. In Dolan, plaintiff attempted to introduce the testimony of orthopedic surgeons on the issue of whether a podiatrist breached the standard of care in performing an osteotomy and in obtaining informed consent. The Court noted that this was a case of first impression, and went on to develop a two-prong test to analyze the competency of a standard of care witness. The Court noted that the legislature expressly recognized the existence of various schools of medicine and provided for the training and regulation of these schools of medicine. 7 Citing cases from other jurisdictions and treatises, the Court observed that standard of care testimony should only be admitted where the defendant and witness practice in the same school of medicine. The rationale of a general rule limiting expert testimony on the standard of care to one who practices in the same school of medicine is that there are different schools of medicine with varying tenets and practices, and that inequities would be occasioned by testing the care and skill of a practitioner of one school of medicine by the opinion of a practitioner of another school. 8 The Court stated that the term school of medicine was not specifically defined, but was described as follows: A school of medicine relates to the system of diagnosis and treatment. While the law recognizes that there are different schools of medicine, it does not favor, or give exclusive recognition to, any particular school or system of medicine, as against the others. When a patient selects a practitioner of a recognized school of treatment he adopts the kind of treatment common to that school, or, as otherwise stated, he is presumed to elect that the treatment shall be according to the system or school of medicine to which such practitioner belongs. 9 The Court went on to find that, in order to be permitted to testify regarding the standard of care, the witness must be licensed in the same school of medicine as the defendant. Once it is established that the witness is licensed in the same school of medicine, it then lies with the sound discretion of the trial court to determine if the witness is qualified to testify as an expert regarding the standard of care. 10 The Court held that since plaintiff s experts were not licensed in the school of medicine of podiatry, they were not competent to render opinions on the standard of care of a podiatrist. The Court was particularly concerned that the testimony of physicians and surgeons in that case would result in holding a podiatrist to a higher standard of care. 11 The Court specifically recognized that, while the physician could not offer opinions on the standard of care, he could testify regarding his own diagnosis and prognosis of the patient. 12 In subsequent decisions, the Illinois Supreme Court reaffirmed and refined its two-prong test. In Purtill v. Hess, 13 the Court considered the sufficiency of an affidavit filed by plaintiff in opposition to defendant s summary judgment motion. The Court stated that the affidavit must provide a foundation which affirmatively Page 11 of 28

12 established the affiant s ability to testify on the standard of care. 14 The affidavit must demonstrate that (1) the expert is licensed in the school of medicine about which he proposes to express an opinion, and (2) the witness is familiar with the methods, procedures, and treatments ordinarily observed by other physicians in either the defendant physician s community or a similar community. The Court stated that once the former requirement has been satisfied, it lies within the sound discretion of the trial court to determine if the witness is qualified as an expert. 15 The challenge to the affidavit submitted by plaintiff related to his familiarity with the standard of care in the locality. The affidavit submitted by plaintiff provided that the physician was aware of the minimum standards of care applicable to treating the condition and that they were uniform throughout the country. The Court found the affidavit sufficient to defeat a motion for summary judgment, noting that the affidavit was construed liberally in favor of the nonmoving party. 16 The Court specifically stated that it may later be determined that the affiant should not be allowed to testify on the standard of care at trial. 17 Next, in Jones v. O Young, 18 the Supreme Court answered the narrow question of whether a standard of care witness must be specialized in the same field as the defendant physician. The Court stated that the expert need not be in the same specialized field as the defendant. The Court did note that the decision of whether the particular expert was competent to testify was not before it, and answered only the certified question. 19 The Court reiterated its two-prong test, adding that the two foundational requirements are a minimum that must be met, after these requirements are satisfied, the trial court has discretion to determine the competency of the witness. 20 The Court went on to state that the trial courts should hear evidence on the expert s qualifications and compare them with the type of medical problem and treatment involved in the case. Whether the expert is qualified to testify is not dependent on whether he is a member of the same specialty or subspecialty, but whether he demonstrates sufficient knowledge of the issues. 21 Legislative Efforts In 1985, the Illinois Legislature enacted 5/8-2501, which set forth standards for courts to apply in determining whether a witness is qualified to testify on the issue of standard of care. The original enactment provided: Expert Witness Standards. In any case in which the standard of care applicable to a medical professional is at issue, the court shall apply the following standards to determine if a witness qualifies as an expert witness and can testify on the issue of the appropriate standard of care. (a) Relationship of the medical specialties of the witness to the medical problem or problems and the type of treatment administered in the case; (b) Whether the witness has devoted a substantial portion of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains; (c) whether the witness is licensed in the same profession as the defendant; and (d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State. 22 These guidelines appear to include factors that the courts were analyzing pursuant to the Supreme Court s two-prong test. The standards set forth in , as well as others, could be considered under the second prong of the Supreme Court s test. Hence, the cases that have mentioned often cite and rely on cases applying the two-prong test. Indeed, there are very few decisions that specifically rely on the factors of Page 12 of 28

13 As a part of Tort Reform, was modified such that the standards the court should consider were amended to provide as follows: (a) Whether the witness is board certified or board eligible in the same medical specialties as the defendant and is familiar with the same medical specialties as the defendant and is familiar with the same medical problem or problems or the type of treatment administered in the case; (b) Whether the witness has devoted 75% of his or her time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue which gave rise to the medical problem of which the plaintiff complains; (c) whether the witness is licensed by any state or the District of Columbia in the same profession as the defendant; and (d) whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in this State. An expert shall provide proof of active practice, teaching, or engaging in university-based research. If retired, an expert must provide proof of attendance and completion of continuing education courses for 3 years previous to giving testimony. No expert who has not actively practiced, taught or been engaged in university-based research for 10 years may be qualified as an expert witness. 24 The Tort Reform amendments were subsequently held unconstitutional in Best v. Taylor Machine Works. 25 As the Court did not specifically discuss , one may question whether still exists in its original form, or whether the provision was stricken as a whole. Given the Court s specific finding that Public Act 89-7 is invalid, it appears that probably does exist in its original form and the constitutionality of the original provision was not considered. However, in light of the discussion in Best regarding the Separation of Powers Clause, one can only wonder if would pass constitutional muster even in its original form, and to what extent further legislative efforts to regulate standard of care witnesses will be upheld. Review of Appellate Court Cases In attempting to apply the Illinois Supreme Court s two-prong test, and , the Appellate Courts have rendered opinions that often appear inconsistent. The rulings on who should be permitted to testify as to the standard of care in a medical malpractice case change with the circumstances of each case as well as the court attempting to apply the test. It appears that the first prong of the test has been rendered virtually meaningless. The first prong requires that the expert be licensed in the school of medicine about which he proposes to express an opinion. In Bartimus v. Paxton Comm. Hospital, the First District discussed the first prong of the Supreme Court test, and found that if the defendant and witness are both physicians, licensed under Illinois Medical Practice Act, the expert satisfies the first prong of the test, irrespective of his particular field of practice. This is easily established in most medical malpractice cases. 26 It is evident that licensure under the same Act is no longer a necessity, as physicians from other states and professors have been permitted to testify on the standard of care. 27 In addition, cases have allowed physicians to testify regarding the standard of care of a nurse, where the issue relates to the standard of care of a nurse in reporting to a physician. 28 Hence, this first prong of the test appears to have been seriously eroded and has rarely been used as a basis to exclude opinion testimony. 29 Page 13 of 28

14 The fertile ground for excluding a witness from testifying on the standard of care is the second prong of the Supreme Court s test. Namely, demonstrating that the witness is unfamiliar with the methods, procedures, and treatments ordinarily observed by other physicians in either the defendant physician s community or a similar community. The locality aspect is not a particularly difficult hurdle in that the witness can apparently satisfy this requirement by stating that there is a uniform minimum standard for treating the condition, and that the witness is aware of the standard. 30 Hence, the proponent of the witness has a significant ability to control the locality issue. The cases that have excluded opinion witnesses have focused on the expert s familiarity with the particular condition and treatment involved. In Northern Trust Company v. Upjohn Company, 31 plaintiff was administered Prostin for the purposes of aborting her pregnancy, and went into cardiac arrest soon thereafter. Suit was brought on behalf of the patient against the physician administering the drug and others. Plaintiff introduced testimony on the standard of care of the OB-GYN involved through Dr. Mathews, an emergency physician. The court found that Dr. Mathews did not meet the second prong of the test in that his specialty was emergency medicine, and he had no experience in pregnancy interruption procedures or use of Prostin. 32 Dr. Mathews had never observed the drug being used or the reactions of a patient receiving the drug. Plaintiff argued that Dr. Mathews criticism of the defendant centered on the alleged failure to assess the patient, as opposed to any type of gynecological procedure. The court noted, however, that the defendant s assessment of the patient could not be taken out of context, given the setting, time and place of the event. 33 The court went on to state that since plaintiff s expert could not know what was custom and practice for the defendant doctor under these circumstances he was unqualified to render an opinion on the standard of care. 34 More recently, in Hubbard v. Sherman Hospital, 35 an appellate court affirmed the trial court s decision to preclude plaintiff s expert from rendering testimony on the standard of care of the defendant. In Hubbard, plaintiff brought suit against the hospital, two emergency room physicians and her surgeon, relative to the diagnosis and treatment of a ruptured appendix. Plaintiff s expert was not an emergency room physician or a surgeon, but was apparently familiar with diagnosing appendicitis and had assisted in appendectomies. The purported expert had little experience in emergency medicine, completing a one-month rotation in the emergency room as an intern. Plaintiff s witness stated that he was familiar with emergency room standards of care in working with emergency room physicians. In analyzing the issue, the court recognized that there was no real dispute as to the first prong of the test and then embarked on an analysis of whether the expert met the second prong of the Supreme Court s test. Relying on Northern Trust, the court precluded plaintiff s expert from rendering opinions as to the standard applicable to the emergency room physicians, noting that the witness experience as an intern was insufficient, and no amount of conversation with emergency room staff could substitute for actual experience in the trenches. 36 The court did permit plaintiff s expert to testify as to the adequacy of the reports made by the emergency room physicians to the attending physician, as well as the administration of drugs in the emergency room. 37 Similarly, the Hubbard Court precluded the expert from testifying as to the standard of care of a surgeon, noting that the expert dealt with appendicitis patients as an attending physician, not as a surgeon. 38 He occasionally assisted with appendectomies, and completed a one-month rotation as an intern in general surgery. The court found these qualifications insufficient to allow the witness to testify as to the surgeon s standard of care relative to scheduling and performing surgery. The court did note that the expert was permitted to testify as to the adequacy of the postsurgical care. 39 Justice Bowman dissented from the majority s opinion, citing the Illinois Supreme Court s decision in O Young, which held that an expert is not required to specialize in the same area of the defendant. The thrust of Justice Bowman s dissent was that appendicitis is a very common condition, and one of general diagnosis. The dissent maintained that since the care and treatment of this condition is familiar to all physicians, plaintiff s expert should have been allowed to testify as to his opinions on the care and treatment rendered by the emergency room physicians and surgeon. 40 Page 14 of 28