Different States; Different Suits

It is commonplace to hear advertisements both on television and radio where some legal firm is looking for clients who may have been injured by some “bad drug” such as a blood thinner which may have caused a bleeding problem, a faulty medical device such as meshes used for hernia repair, or for patients who may have developed mesothelioma from exposure to asbestos. The more clients they can get to sign up with their firm, the larger the possible settlement will be. Since these lawyers are usually working on a contingency, their share of the settlement is likely to be very large.

A recent Supreme Court decision will now make it more difficult for these plaintiff attorneys to reap a single large payday; instead, they will have to litigate in each state where a group of patients may have been harmed or they will need to bring the suit where the manufacturer is incorporated or where it is headquartered.

In BristolMeyers Squibb Co. v. Superior Court of California, San Francisco County, Et. Al., a group of plaintiffs, many of whom were California residents and some who were allegedly injured in other states, brought suit claiming that they were injured by Plavix, a blood thinner. The legal issue centered on the State’s jurisdiction for the nonresident plaintiffs. Bristol-Meyers Squibb (BMS) tried to get the nonresidents’ claims removed from the suit because of lack of personal jurisdiction in the State. The Court ruled that there was enough activity by the defendant to allow for general jurisdiction by the California Courts. In order for general jurisdiction to attach, it must be where the defendant corporation is deemed to be at home. This could only be where the defendant is headquartered or incorporated. Since BMS was incorporated in Delaware and headquartered in New York, general jurisdiction should not have attached so the Court got this legal issue wrong and BMS appealed.

The Court of Appeals agreed with BMS and found that California did lack general jurisdiction but the Court went on to hold that California did have specific jurisdiction over the claims brought by the nonresident plaintiffs. In order to have specific jurisdiction, the defendant needs to have a connection with the forum and the specific claims at issue. Was the connection enough to force BMS to defend itself in California for the injuries claimed by plaintiffs who were not injured in California? Previous jurisprudence seemed to require that there must be a connection between the forum and the specific claims at issue. How could the claims of nonresidents be connected with BMS activities in California?

The California Supreme Court felt that BMS’s contacts with the State were enough to allow for specific jurisdiction over the nonresidents’ claims because these claims were similar to the residents’ claims and because BMS had sufficient activities in the State to support jurisdiction. They relied on the fact that BMS had contracted with a California company, Mckesson, to distribute Plavix nationally.

The United States Supreme Court took the case on appeal and they held that the California courts did not have this specific jurisdiction because the suit of the nonresidents did not “arise out of or relate to the defendant’s contacts with the forum.” The Court held that the contract with Mckesson was just not enough to force BMS to defend itself against the nonresident plaintiffs.

The decision in BristolMeyers Squibb does not say what will need to be done if there is more than one defendant each headquartered or incorporated in different States, but the logical conclusion is that there will need to be separate suits for each defendant. This may make comparative fault issues very difficult to decide and is likely to lead to crossclaims and counterclaims. This will likely increase the costs of litigating these types of cases.

In a dissenting opinion, Justice Sotomayer stated that this decision will make it much more difficult for plaintiffs to hold corporations accountable for conduct that is uniform around the country. She wrote that it “does not offend ‘traditional notions of fair play and substantial justice,’” International Shoe, 326 U.S., at 316, to permit plaintiffs to aggregate claims arising out of a single nationwide course of conduct in a single suit in a single State where some, but not all, were injured.” In essence, Sotomayer believes the decision will overturn the holding of International Shoe which allowed States to go after corporations that did substantial business in their State. However, the holding still allows the States to have jurisdiction, but they can only fight for those who were injured in their State. It looks like International Shoe will still have a role in this type of litigation.

With this decision, plaintiffs will only be able to bring a legal action in the State where they were injured or in the defendant’s state of incorporation or where the defendant is headquartered. This means that actions which could have been decided in one court may now have to be divided with each interested State litigating the same type of case in their own jurisdiction. This division of cases could lead to very different results and will significantly add to the costs of the firms who are bringing suit in the first place; court costs, expert witness fees, time spent by the lawyers dealing with each court, will be multiplied by the number of States in which there are plaintiffs alleging injury.

In general, plaintiff’s attorneys do not like to bring suit in the defendant’s home State as they feel those courts are more likely to be favorable to the corporation. It is common practice for plaintiffs to bring suit in a forum which they feel will be more receptive to their cause. BristolMeyers is likely to make forum shopping by plaintiffs more difficult.

Of course, plaintiffs can try to start a “class action” on a national level, but that has a whole set of rules that can be difficult to meet. This is especially evident when different plaintiffs are looking for different remedies or when there are different attorneys looking to represent different plaintiffs.

With the decision in BristolMeyers Squibb, plaintiffs will no longer be able to consolidate a legal action in a State in which only some of them have been injured. This will hold even if the plaintiffs who were injured in different States are suing the same company for the same type of conduct that is alleged in the forum State. In the future, the only type of mass action that will be allowed will have to be brought on the defendant’s home turf. This will be to the disadvantage of the plaintiffs who would prefer the case to be heard by a more favorable State court and will make it more difficult for the plaintiff who may have to deal with a jurisdiction far from his home State.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016. 

The Prejudiced Patient

What are physicians obligated to do if a patient refuses medical care based on the assigned physician’s racial, color, gender, religious, or national origin identity? Typically, the patient’s wishes are honored; but is that the right thing to do?

As physicians, our primary concern is the health of our patient. Evidence based medical practice shows that the physician-patient relationship is dependent on trust, mutual respect, forthright communication, cooperation, and participatory decision-making. The patient must be able to speak candidly about personal, maybe even embarrassing conditions and he must be willing to submit to a physical exam. These two conditions are linchpins to good care. To this end, the American Medical Association has consistently maintained that the patient’s right to choose his physician is a prerequisite of optimal care and ethical practice.

Physicians are not required to change a patient’s perception of the world. The Hippocratic Oath (which most physicians take in one form or another) directs them to do what is best for the patient. If the patient is unwilling to follow a physician’s advice, even if based on racial or other invidious prejudices, then he may be clinically harmed. As such, it makes medical sense to accede to the patient’s request.

There is a constitutionally protected liberty interest in refusing unwanted medical care. The law of Battery and the Doctrine of Informed Consent allow the competent patient to make choices for his medical care; this includes rejecting a doctor assigned to his case for any reason.

In 1986, the Emergency Medical Treatment and Active Labor Act (EMTALA) was signed into law. This Act requires that a hospital must provide a screening exam for any patient that presents to the facility. If the screening exam finds an emergency medical condition or active labor, then the hospital must provide stabilizing care so long as it has the capability to do so. A patient’s rejection of an assigned physician does not allow the hospital to avoid the EMTALA obligations so the hospital must provide another physician to take care of the patient.

The Civil Rights Act of 1964 (Act) was enacted to prevent discrimination based on race, color, religion, ethnicity, and national origin. Unfortunately, the Act gave no clear direction on how to deal with physician choice of a prejudiced patient. However, Titles II, VI, and VII of the Act may provide some guidance.

Title II of the Civil Rights Act prohibits customer preference discrimination. The argument can be made that patients are not customers or else they “would always be right.” The Act specifically applies to hotels, motels, restaurants, theaters, gas stations, bars, recreation areas, and places of entertainment—all affecting interstate commerce. Hospitals were specifically left out. When a law has such specificity, the courts uniformly rule that the law will not apply to other entities. Only Congress, not the courts, can give the law such added reach. Congress has not added hospitals to this Title for over fifty years.

Title VI of the Act covers hospitals and it targets actions against patients. The law addresses denial of health care, benefits, and services to patients. This law has never been used to address the prejudiced patient issue, but, even if it did, only the funding agent (such as the Federal Government, Medicare and Medicaid, or other third party payers) was given the legal standing to enforce the law. Third party payers are unlikely to bring a suit against a single prejudiced patient as the costs would far outweigh any perceived benefits.

Under Title VI, the Supreme Court has previously held that only intentional discrimination is forbidden—this is a high bar to prove in a legal action.

Title VII is the primary federal statute addressing employment discrimination; the employer may not discriminate based on race, color, religion, sex, or national origin. It is unlikely that the patient will ever be construed as the employer in this type of setting. A patient’s racial preference in the hospital setting is very different which probably explains why this Title has never been used to combat this invidious prejudice.

The case of Chaney v. Plainfield Healthcare Center, Seventh Circuit Court of Appeals (2010), 612 F.3d 908, dealt with the Civil Rights Act and patient choices. This case dealt with a nursing home resident who made a racially discriminatory request with respect to nursing assistants who were assigned to bathe her. The court ruled that this type of discrimination is not allowed. However, the facts of Chaney are clearly different from the situation where there is a physician-patient relationship and the health of the patient may be affected. There is no case that I could find that used Chaney as a basis to ignore a patient’s invidious prejudice against an assigned physician.

A physician’s primary concern is the well-being of his patients. That care is optimized if the patient buys in to the care being offered and the recommendations being made by the physician. If the patient does not have confidence in his physician, for whatever reason, he is not likely to follow the course of recommended care; he may be harmed by this action. Physicians are not the enforcers of social justice and they are not the political correctness police, especially if these roles may harm the patient.

The law of Battery and the Doctrine of Informed Consent are on the side of the prejudiced patient as are the requirements of EMTALA. The accomodation of the patient’s racial and other prejudices is not the type of invidious discrimination that the Civil Rights laws were enacted to prevent in other settings.

There are sound medical, ethical, and legal reasons to accede to a patient’s prejudiced choice of physician. We have honored the patient’s choice in the past and we should continue to honor their requests in the future; at least until the law directs us to do otherwise. The patient may be wrong in his demands, but it just does not matter.

by Darryl S. Weiman, M.D., J.D.

Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN

MORE ABOUT THE AUTHOR: Darryl Weiman is a featured expert in www.healthcaredive.com on February 17, 2016.