Darryl Weiman, M.D., J.D.

The American Law Institute (ALI) is a group of lawyers, judges, and other legal scholars whose mission is to improve, modernize, and clarify the law to promote the administration of justice. Established in1923, it is a private, independent, non-profit and their writings have great weight in the legal community. The ALI publishes Restatements of the Law, Principles of the Law, and Model Codes, to “express the law as it should be.”

In 2024, the American Law Institute (ALI) wrote new guidelines for medical malpractice which shifted from the “reasonable physician” to a more patient-centered standard which relied more on evidence-based practice guidelines. As mentioned above, these new standards have considerable respect in the legal community, and it is reasonable to conclude that some state legislatures and supreme courts will follow the recommendations to incorporate “evidence-based medicine” into malpractice law. This is a significant shift which may cause major legal problems for physicians.

Medical malpractice is currently predicated on the “reasonable practitioner” standard. Although there is variability among the states, a practitioner would not be liable for malpractice so long as their actions complied with what a reasonable provider would do if faced with the same or similar circumstances.

Here is an example of what might happen with the ALI recommended changes. I was at a continuing legal education meeting where the speaker, a well-known plaintiff’s attorney, stated that deviations from practice guidelines should be construed as medical malpractice. He used the example of the Advanced Cardiac Life Support (ACLS) acronym for the acute coronary syndrome. The acronym is MONA, which stands for morphine, oxygen, nitrates, and aspirin. According to this attorney, a physician who did not follow these guidelines is liable for malpractice if the patient was harmed.

As physicians, we all know not to give morphine to a patient with an allergy to that drug, and we may not be willing to give it to a patient with low blood pressure. We may be reluctant to start oxygen on a patient with severe chronic obstructive pulmonary disease, as the oxygen saturation may be his driver of respiration and providing oxygen may lead him to stop breathing. With similar reasoning, we may not give aspirin to a patient who is allergic to the drug or if gastrointestinal bleeding is an issue. Also, we know not to give nitrates to a patient who is taking Viagra or Cialis because, as the commercials warn us, this can cause a precipitous drop in blood pressure.

With current medical malpractice law, the burden of proof is on the plaintiff who must show, with a preponderance of the evidence standard, that the practitioner did not do what a “reasonable practitioner” would do if faced with the same or similar circumstances. If the recommendations of the ALI are to be used, the burden of proof would shift to the practitioner

who would need to convince the jury that the guidelines should not be applied in his case. This is a significant shift in burden.

Granted, the guidelines have disclaimers, usually at the beginning of the publication, which acknowledge that the guidelines are written for the ideal patient presenting with that disease entity and it is up the physician taking care of the patient to decide whether to use the guidelines. Plaintiffs are likely to downplay or ignore these disclaimers. The result will be to shift the burden of proof to the physician to convince a jury that following guidelines written by experts in the field was the wrong thing to do in his case. Good luck with that.

It becomes more problematic when it comes time for the judge to instruct the jury as to what standard of care it should use in deciding the case. Instead of customary care as the standard for reasonableness, the guidelines will be used to define what the law says is “reasonable.” It is foreseeable that the injured plaintiffs will use the guidelines as the best scientific evidence of what the physician should have done.

Expert witnesses for the defense used to opine whether the practitioner did what a reasonable practitioner would do if faced with the same or similar circumstances. That was the law. With the guidelines, by law, now defining the standard of care, defense experts will need to argue that the law should not be followed in this case. Under the “preponderance of the evidence” burden of proof needed in most malpractice actions, this may make it more difficult for the practitioner to win his case; juries instructed to follow the law, are unlikely to ignore that instruction.

Instead of practicing defensive medicine, physicians and other practitioners will be inclined to follow guidelines even though it is rare to find the ideal patient with any disease entity. Knowledge, education, training, experience, and skill will no longer be the lynchpins of medical judgment. Computers may soon be telling us how to take care of our patients. In fact, they already are.

If a practitioner decides not to follow the guidelines, he should document his reasoning in the medical records. With this documentation, the court will be inclined to believe that the physician was doing what he believed to be best for his patient, i.e., he was acting reasonably. This will go a long way in helping him win the case.

Darryl Weiman, M.D., J.D.

Standards and Ethics Committee of the Eastern Cardiothoracic Surgical Society

Ben Franklin said,

“Honesty is the best policy.” When you are under oath, it is the only policy.

During a surgeon’s career, it is likely that he will have to deal with a medical malpractice suit either as a defendant or as an expert witness. In fact, a cardiothoracic surgeon in Tennessee will be named as a defendant, on average, once every three years. During the legal process that will follow, testifying under oath, either at a deposition or at trial, may be required.

Any party in a malpractice action is allowed to take the sworn testimony of any witness, opposing party, or expert expected to be used at the trial by the opposition. This testimony will occur at a deposition. At the deposition, the witness will be put under oath, usually by the court reporter who will also write a word for word transcript of the testimony. There is no judge present at the deposition so any objections will have to be ruled on later. Usually, the objecting attorney will place the objection into the record and then the witness will be allowed to answer the question. If the objection is later sustained, the answer will not be allowed to be used at the trial.

Some depositions are video recorded and that video may be played for the jury if the witness is not able to attend the subsequent trial. This may be more effective than just having someone read the transcript to the jury. The jury can actually see the witness, evaluate his demeanor, the tone of voice and get a sense of the timing of the answers to better judge the witness’s credibility.

As a discovery tool, the deposition will be useful in gathering information that may be sought at trial, and box the witness in as to what they can then say at trial. It is common for the opposing attorney to close his questioning by asking the witness if there are any other issues he will be testifying to at trial. If the witness says “no” then he will not be allowed to bring up new issues at the trial unless the opposing attorney “opens the door” to new testimony by asking a question that he probably should not have asked that was beyond the scope of the deposition testimony.

There is a great deal of strategy that goes into taking and defending depositions. Many experienced attorneys will get right to the heart of the matter and ask as few questions as possible to get the information they need to support their case. This “short and sweet” approach is likely since the witness, if it is the expert witness of the opposition, must be paid by the

deposing attorney’s side. Also, they don’t want to waste time seeking answers that will not make a difference as to the outcome of the cause of action.

Some attorneys try to wear the witness out in hopes that he will make a mistake as he gets tired. You should be able to figure out the strategy being used but answering truthfully is still required. If the opposing attorney can show that you are lying, your credibility will be destroyed, and you will probably be punished by the court.

Besides answering truthfully, there are other things to keep in mind while testifying. Always be professional and polite. Testifying is stressful but you must maintain your cool and answer to the best of your ability. The judge and jury (if you go to trial), know that you are stressed and they will respect you more if they see you are being courteous—even to your adversary. Dress appropriately and be on time. Do not try to be funny or sarcastic with opposing counsel. Every word you say is recorded by the court reporter and if your testimony will be read back at trial, you want to be sure that your words were appropriate.

If you are asked a question and you don’t remember the answer, it is alright to say you “don’t remember” or “don’t recall.” It is rare for a person to recall what they were thinking at a particular time many years ago. It is also not a good idea to guess what you might have been thinking. The opposing attorney may ask you to review the medical record and then ask if that may have refreshed your memory so that you could now try to answer his question. It is unlikely that the chart review will allow you to remember what you were thinking back then so you may want to point out that a review of the chart won’t be enough to recreate the thought pattern you might have had during that time.

The opposing attorney may persist and present you with a hypothetical patient that is like the plaintiff and then ask your opinions as to diagnosis and treatment. As a physician, it is fair to point out that the presence of the patient—one that you can talk to and examine—is critical to making a diagnosis and treatment plan and without such patient, you are reluctant to answer based on limited knowledge.

If your case involves a missed diagnosis which led to harm to the patient, some attorneys will persist in trying to get you to admit to a mistake. They will do this by posing a theoretical question dealing with the signs and symptoms of the plaintiff and ask for a differential diagnosis. For example, let’s say the patient had an aortic dissection and the diagnosis was not made until he was already dead. The attorney may ask for a differential diagnosis for a patient who presents with substernal chest pain, shortness of breath, and tachycardia.

Faced with this scenario, the inclination is to say, “it could be an aortic dissection.” This is especially true because you know that this is what the plaintiff had. It would be truthful and better for your case if you do not jump ahead. Provide the attorney with a list of conditions which meet the proposed criteria so that the judge and jury can see that the case is not as simple as the plaintiff attorney is trying to portray. In this example, the list could include myocardial

infarction, pulmonary embolus, aortic dissection, pneumonia, pancreatitis, a duodenal or gastric ulcer with perforation, costochondritis, and perhaps a sternal or rib fracture, etc.

Do not start offering opinions without examining the theoretical patient. Do not let the opposing attorney force you to make suppositions as to what the patient might have had since you are only being given limited information which was not the situation when you were taking care of the patient.

It is wise to only answer the question you’ve been asked. Many defendants feel the need to give a long, detailed explanation that goes beyond the scope of the question. Their goal is to educate the attorney as to their thought process and make him realize that they were thoughtful and reasonable. This is unlikely to happen and may even hurt your case. The more information you provide to plaintiff’s attorney will just give him more material with which to ask questions.

If you are asked a “yes” or “no” question, you don’t need to provide explanations. For example, if you are asked if you remember seeing the patient on a particular day when there is no note by you or a member of your team, then “no” is the answer. If you say, “No, but it could have been one or two times and I just didn’t document it,” you will be opening yourself up to another line of questioning dealing with your documentation habits. Do not volunteer information.

Your lawyer may advise you to use medical terms in your answer to force the opposing attorney to look to you for help. This may be risky. Instead, it would be best to answer in a way that would be understandable to a member of the jury. Remember, your testimony may be read to the jury at trial. The jury would appreciate it if they perceived that you are not talking down to them.

Some opposing attorneys may be threatening and try to coerce you into providing them with more favorable testimony. If you are telling the truth, you should not be intimidated.

Remember, as a physician, you will be more knowledgeable about patient care than any attorney. Use your knowledge, education, training, experience, and skills to your advantage.

Newsletter for the Standards and Ethics Committee
Eastern Cardiothoracic Surgical Society

By Darryl Weiman, M.D., J.D.

In June 1996, the Office of the Inspector General (OIG) initiated a plan to audit teaching hospitals (the PATH audits). The OIG wrote, “[t]his initiative grows out of the extensive work performed by the OIG at a major East Coast University.”1 The focus of the review was compliance with intermediary Letter 372 (IL-372). This letter explained the Medicare rule affecting payment for physician services provided by residents. The review found that the university hospital was not in compliance with the rule.

The university in question was the University of Pennsylvania where it was alleged that the attending surgeons were billing for services provided by the residents and there was improper “upcoding” of the level of services provided to maximize Medicare reimbursement. The rule in question would allow for billing of the resident services so long as there was proper documentation for attending supervision. The rule required documentation with specificity and, if the documentation was inadequate, the services could not be billed for.

Prior to this audit, it was customary for chief residents to function independently, especially at night, and the attendings did not come in unless requested by the chief resident. With the new rule, which most (if not all) of the attendings were not aware of, the lack of documented supervision put the university at risk for a False Claims Act violation and that is exactly what happened.

The University of Pennsylvania was found to be billing despite “inadequate documentation” and there were 1.4 million claims submitted during the audit period. The Hospital for the University of Pennsylvania calculated that even if only 2% of the records had inadequate documentation, they would be at risk for statutory penalties of $280 million under the False Claims Act (not including treble damages for overpayments). The OIG did not want to bankrupt one of the premier teaching hospitals, so they agreed to a settlement of $30 million.

The University of Washington was the next target and that university agreed to a $35 million dollar settlement. This case was complicated by a neurosurgeon who tried to suborn perjury by having his residents say he was in the operating room when the bills were generated.

The Dartmouth Hitchcock Medical Center was found to have only a minimal billing error ($778) but it cost them $1.7 million to defend against the audit. The costs were high even with a victory.

With these financial victories, the OIG was looking to do more. Attorneys in the OIG found the audits to be a great way to advance their careers and it was no surprise that they planned to audit all teaching hospitals. Of course, the teaching hospitals fought back as their financial viability was on the line. Lobbying efforts by the universities and teaching hospitals led to Congressional hearings. The hearings led to a moratorium on the PATH audits, but this moratorium was not permanent. In fact, a recent audit led to a settlement at the University of Pittsburgh.

Since those PATH audits, teaching hospitals have worked hard to remain in compliance with the requirements for resident supervision at all levels, but an unintended consequence was a detrimental effect on resident training. As RVUs became more important in deciding attending salary, attendings were less likely to let residents do cases independently. The RVU issue was a result of the Omnibus Budget Reconciliation Act of 1989 which pushed surgeons to do more to increase their own operative load; this, of course decreased the resident involvement with the case.

Other laws and regulations on point were the 1997 CME (Coding and Medical Encounter Documentation) modifiers for billing involving resident doing cases and the 2002 CMS Mandates requiring the attending to be present for critical portions of the case. Although these laws and regulations led to a decrease in resident experience, the Libby Zion case probably had the most significance in reducing the “hands on” exposure in the operating room, wards, and clinics.

The Libby Zion case led to the Bell Commission in New York. This led to an 80-hour work week restriction for residents in that state. Other states soon followed the New York example and the ACGME bought in to the 80-hour work week restriction which affected all residencies.

It is now no surprise that up to 60% of general surgery residents finishing training are concerned that they may not be able to function independently, especially in the operating room. In fact, up to 80% of graduating general surgery residents go on to do a fellowship as they hope the added training will allow them to be safe and clinically competitive.2

If your practice is hiring new graduates, it may be prudent to mentor them as they may need to acquire the confidence needed to function safely and independently. It’s not their fault that the states and ACGME decided that residents in training needed more time off. I’m sure the new graduates will appreciate your help.

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1Ruth SoRelle, Tracking a Tangled PATH, Circulation, 1998; 97:2191. 2 Yeo H, Viola K, Berg D, et al. Attitudes, training experiences, and professional expectations of US general surgery residents: a national survey. JAMA 2009; 302:1301-1308.

By Darryl S. Weiman, M.D., J.D.
Associate Program Director, General Surgery Residency Program
Baptist Medical Center, Memphis, Tennessee

Newsletter submitted on behalf of the Standards and Ethics Committee of the Eastern Cardiothoracic Surgical Society

Can taking call, in and of itself, put you at risk for a malpractice action even if you have never met the patient? After all, a duty owed is one of the elements that must be proven by the plaintiff in order for them to win the suit. If a physician-patient relationship has never been established, then how can a duty be owed? This issue was addressed in Millard v. Corrado.1

On November 5, 1994, 63-year-old Marjorie Millard was involved in a motor vehicle accident (MVA). The emergency medical technicians (EMT) arrived at the scene at 10:28am.2 The accident scene was 14 miles from the Audrain Medical Center (AMC) and 25 miles from the University of Missouri Medical Center. Since the EMTs found no measurable blood pressure or radial pulse, they chose to transport to Audrain.

Dr. Joseph Corrado was the general surgeon on call for Audrain, but he had signed out to Dr. Ben Jolly, an orthopedic surgeon. Dr. Corrado then left town so that he could attend the local American College of Surgeons meeting. Unfortunately, Dr. Jolly did not have general surgery privileges and Dr. Corrado had not notified anyone else that he would be unavailable for emergencies.

Millard arrived at AMC at 11:07am. IV fluids were started and a chest radiograph was obtained. The chest film was consistent with blood in the chest. The emergency room attending examined Millard and he concluded that she was also bleeding into the abdomen.

Dr. Corrado was paged twice but he did not answer. At 12:00pm, air transport was called but they were grounded due to bad weather. At 12:07pm, Dr. Jolly entered the ER and saw the patient. He agreed that she needed an abdominal exploration, but he did not have the privileges or training to do that operation.

At 12:23pm, Dr. Corrado responded to the previous pages. After being told the situation, he agreed that Millard should be transferred to the University of Missouri Medical Center. At 1:45pm, the patient arrived at the University of Missouri where she underwent an abdominal exploration beginning at 2:15pm; this was about four hours after the MVA.

Ms. Millard was found to have broken ribs, a ruptured diaphragm, injuries to the renal artery and vein, and adrenal artery. She presented in hypovolemic shock.3

The left kidney, gall bladder, part of the colon and part of the small bowel had to be removed. Millard brought a malpractice action against Dr. Corrado claiming that “…as a direct and proximate result of the delay in treatment caused by Dr. Corrado’s absence (she) sustained aggravation of the injuries sustained in the accident and additional serious injuries.”4

Dr. Corrado moved for summary judgment arguing that the plaintiff had failed to establish the formation of a physician-patient relationship—a necessary component proving that a duty of care was owed.

The trial court agreed with Dr. Corrado. The motion for summary judgment was granted and a judgment in favor of Dr. Corrado was entered. However, on appeal, the judgment was reversed. The appellate court held that the public policy of Missouri and the foreseeability of harm to patients in the position of the plaintiff support the recognition of a duty flowing from Dr. Corrado to Ms. Millard. By being “on call” the physician owes a duty to reasonably foreseeable emergency patients to, at least, provide notice to the hospital when they will be unable to respond to calls.5

In dictum, the court went on to say that the duty to provide adequate notice should not have a detrimental effect on the ability of the hospital to attract physicians to accept “on-call” assignments. It is now common practice for hospitals to pay physicians to “take call” and many young physicians are anxious to take call to help build their practices.

A concurring opinion summed up the “duty owed” issue very well. “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking if his failure to exercise reasonable care increases the risk of harm…”6

Since the plaintiff produced substantial evidence that Dr. Corrado’s actions resulted in a delay in obtaining treatment for her injuries, thus increasing the risk of harm, Dr. Corrado lost his summary judgment motion.

As we now know, taking call, in and of itself, will create a duty of care owed to any foreseeable patient who may need our care during that call period. With the advent of the Emergency Medical Treatment and Active Labor Act (EMTALA) of 1986, further legal requirements may be required of us if a patient with an emergency condition is able to make it to our hospital.

Using public policy factors, courts will consider the prevention of future harm, the cost of the conduct, and the ability to spread the risk of loss, and the economic burden upon the actor and the community related to the conduct.

The court in Millard concluded that Corrado did owe a duty of care to Ms. Millard. Also, Corrado had a contractual obligation to AMC to notify them if he would not be able to cover. The court also construed a contractual obligation for the “on-call” physician to respond to being called in a reasonable time frame, i.e., 30 minutes.

The legal requirements of Millard only apply to the state of Missouri, but other states have their own “on-call” laws. Each physician should learn the laws in their state. Ignorance of the law is no excuse if the laws are violated in their malpractice arena.

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1 Millard v. Corrado, 14 S.W.3d (Mo. App. E.D. 1999). 2 Id. 3 Id. 4 Id. 5 Id. 6 Id.

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

Standards and Ethics Committee Newsletter for the ECTSS

What should the health care provider do when the patient or the patient’s family requests that life-prolonging care be started or continued when there is no reasonable expectation that the care would be helpful? These types of demands are not unusual and are based on the ethical principles of autonomy and self-determination. It is legally accepted that patients can refuse treatment; does the law recognize their right to demand care based on the same principles?

“Futile care” is medical care or treatment for a patient when there is no reasonable hope of a cure or benefit. Physicians are sometimes faced with a situation when the patient (or the patient’s family) requests care that the physician believes is futile and may even be harmful. No State requires a physician to provide care that he believes to be futile, but the physician’s judgment may be subject to second guessing, and he may be served with a medical malpractice or wrongful death suit.

There are mainly two reasons that patients and families push for care that is against their physician’s advice. The first rests on religious or cultural reasons where the family believes that everything should be done to preserve life, even if prolonged suffering is the result. In some cases, such as “brain death”, the religion may not recognize the medical definitions. In some religions, death only occurs when the heart and lungs have stopped working. This is why New York and New Jersey have religious exceptions for their “brain death” statutes.

The second reason is related to a lack of understanding as to the limits of medical care. This leads to false beliefs that care given can reverse what the medical professionals know to be an irreversible situation. This scenario is usually managed with regular meetings with the family with discussions as to what reasonable outcomes can be expected. However, even with improved communications, the family may continue to request “futile” care.

Fear of legal ramification usually leads to honoring the family’s request. As a result, cost of care goes up and limits are placed on scarce medical resources.

To help physicians deal with these difficult clinical situations, some states have enacted laws to protect providers who may decide to not honor a family’s request for futile care.

Texas has a model for how to approach this difficult clinical scenario, but not all states have this type of “safe harbor” statute relating to futile care. In Texas, when a patient or family demands care that the physician believes is futile, the law requires the care-giver to get a second opinion from another physician. When this is done, the person providing the second opinion should see and examine the patient and review the medical records. The second opinion should

then be documented in the medical records and the family should be informed as to the opinion. In most cases, the opinion will be consistent with the first physician’s opinion but that may not be the case.

If the second opinion is in agreement with the family or patient, that physician should then take over the care of the patient. If the second opinion agrees that the care requested would be “futile” then the family or patient will either need to change their opinion or continue to request the care in question.

If, after hearing the second opinion, the family still wants the “futile” care to be given, the physician should obtain a consult from the hospital’s Ethics Committee. The committee should then review the medical records and examine the patient. Usually the ethics opinion will agree with the physician. If the family still is pushing for the “futile” care, then the physician and the hospital should offer to try to transfer the patient to another facility which would be willing to provide the care in question. This attempt to transfer the patient is unlikely to be successful as most other hospitals will not want to deal with a “futile care” conflict.

If all of the steps outlined in the Texas statute are done, then the physician will have a “safe harbor” under the law to not provide the requested care; he would even be allowed to withdraw care that he deems to be futile. The family will still be allowed to bring a medical malpractice or wrongful death suit, but they will be unlikely to win.

The underlying intent of the process outlined in the Texas law is to allow the family to come to grips with the gravity of their loved one’s situation. Once they realize that the medical staff is in agreement, they are likely to back off from their demands for further, unwarranted, care.

There are situations, usually in the trauma scenario, where there is not enough time to meet the requirements of the futile care statute. For example, patients who have sustained blunt chest trauma and present with no cardiac rhythm often get a resuscitative thoracotomy in the emergency department even though the mortality is significant and those who survive have horrible neurologic outcomes (Powell DW, Moore EE, et. al., Journal of the American College of Surgeons, August 2004). The recommendations of the Powell article are to stop doing these thoracotomies for any patient with blunt chest trauma who was getting prehospital cardiopulmonary resuscitation for longer than five minutes even though not doing the thoracotomy may lead to medical malpractice actions related to the “loss of chance” for survival.

Although the “Futile Care” statute will afford some protections to the physician and hospital, they may still have to experience the financial and other expenses of defending their actions. No one wants to be the first case to test the law since it is uncertain if the courts will deem the law to be constitutional or not. It is possible to argue that the law is unconstitutional as it may deprive a person of “life, liberty, or property” without “due process of law.” A further constitutional argument against the law can be based on the “equal protection” clause of the Fourteenth Amendment; if one person is treated, then all can claim the “right” for the same treatment.

New therapies for acute life-threatening illnesses such as ventricular assist devices, organ transplants, coronary and valvular interventions, have led to increases in the need for intensive care (ICU) beds. As a result, there are times where there is not enough ICU beds to meet the demands of the patient population that could benefit from that environment.

To optimize the use of scarce medical resources, there should be a push to educate the public and health care providers about futile care alternatives such as palliative care (keeping the patient comfortable). Education should also focus on reasonable discussions on end of life issues such as “advanced directives” and “power of attorney for health care issues.” It might also be useful to educate health care providers on the ethical, and legal, issues relating to providing, or not providing care which is costly and unlikely to provide a reasonable hope of meaningful recovery.

One of the first things that needs to be done is provide a clear definition of what constitutes “futile care” and what strategies can be done to more effectively use the ICUs or emergency rooms scarce resources.

There are few cases that have gone to court to decide on the “futility” issue. This is probably because few physicians and hospitals are willing to face the costs and possible reputational damage for removing life-sustaining treatment over the protests of the patient or family. Although most judicial rulings have upheld the physicians’ judgment, some have not.

In medicine, it is often said that “when God puts his hands on, take yours off.” This saying is applicable to the situation where the requested care is deemed to be futile. However, withdrawing care is problematic as no one wants the aggravation of defending his actions in courts of law or courts of public opinion.

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

Since the re-election of President Trump, several federal district courts have issued national injunctions which have blocked several of his executive orders. The United States Supreme Court finally stepped in and ruled that the federal district courts could not issue national injunctions. Any district court injunction could only apply to the parties involved in that court’s jurisdiction. How did we get to the point that the courts felt they could wield such enormous power?

Article II, section 2 of the United States Constitution states the president “…shall nominate and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme court.” Eventually, all Article III judges had to go through a confirmation process in the Senate. Not surprisingly, with the increasing politicization of the courts, the importance of placing judges whose judicial philosophy is consistent with the president’s has become paramount. Issues such as health care, abortion, freedom of religion, political speech, gun control, results of an election, and affirmative action have become so contentious that control of the Supreme Court and the lower federal courts as political tools has taken on critical importance.

It used to be that the legislative powers as defined in Article I of the Constitution were vested in the Congress and the executive power, under Article II, was outlined for the President. Judicial power was defined in Article III and was meant to keep the executive and legislative bodies from extending their designated powers and from taking freedoms designated to the states and the people in the Bill of Rights and subsequent amendments. This was the intent of separation of powers and the concept of federalism.

Over the last few decades, it has become clear that the courts are making more decisions relating to legislation and to executive powers. As such, the politics of judicial appointments have become increasingly contentious with the minority party resorting to the filibuster to block a presidential appointment that they felt would be detrimental for their legislative goals. With the filibuster, the minority party only needed to muster 41 votes to block a nomination instead of a majority of 51.

Since the filibuster is not part of the Constitution, how did this procedural rule come to take on such importance? Dating back to the 1830’s, a simple majority in the Senate was not enough to confirm a judicial appointee. This was due to a senate procedural rule which allowed for a “filibuster”—defined as a “dilatory tactic, esp. prolonged and often irrelevant speechmaking, employed in an attempt to obstruct legislative action” (Black’s Law Dictionary, seventh edition). The Constitution allows the House and Senate to set their own rules, and, in the Senate, a rule was made to allow for a debate to continue for an unlimited time. The only way to end the debate was for passage of a motion for “cloture” which required a three-fifths majority of the senators duly sworn. With the present senate, this meant that 60 senators are required to pass the motion for ending the debate.

In its original form, the filibuster allowed for a group of senators to speak for as long as they could on the senate floor to prevent a cloture vote from ever taking place. This tactic can still be done today; if the vote for cloture is very close, the minority can prevent any voting on an issue if the filibuster is on-going in hopes of garnering more votes for their position.

To keep the senate from becoming completely paralyzed from the one issue being filibustered, subsequent rules allowed for the issue to be tabled if it is obvious that there are not enough votes for cloture. This allowed for other business to be done while the issue generating the filibuster is effectively blocked.

The history of Senate confirmation of Article III judges is interesting and is worth reviewing.

The Constitution does not specify how many votes are needed to confirm a judicial nominee. Numbers for confirmation are enumerated in other areas of the Constitution such as ratifying a treaty (2/3 majority), voting to convict someone who has been impeached (2/3 majority), expelling one of its members (2/3 majority), and concurring on a proposed Constitutional Amendment (2/3 majority). Since no number is specified, the Advice and Consent role is, arguably, met with a simple majority vote.

Over the years, there were several threats to end the filibuster, especially as it related to judicial appointments. The move to end this procedural tool was called the “nuclear option” although many people preferred to call it the “constitutional option” as they claimed the Constitution only required a majority vote to meet the requirements of “advice and consent.”

The first opinion written in support of ending the filibuster was done in 1917 by Thomas Walsh, a Democratic senator from Montana. Walsh argued that each new Senate could write its own procedural rules and did not have to abide by the rules of previous terms. These rules could be put in place with only a majority vote.

In 1957, then Vice President Richard Nixon wrote an opinion stating that the Constitution allows for the presiding officer of the Senate—the Vice President—to override Senate rules with subsequent rules put in place with only a majority vote. No action was taken on this written opinion.

The first Senator to use the term “nuclear option” was Trent Lott, a Republican from Mississippi. Lott coined the term during President George W. Bush’s first term after the Democrats blocked several of the President’s judicial nominees. Lott used the term because he recognized that it was a last resort and would probably result in negative consequences for both sides.

Bill Frist, a former heart surgeon and then senate Majority leader, threatened to use this nuclear option later in 2005 in hopes of ending Democratic filibusters of judicial nominees of

President Bush. A group of seven Democratic and seven Republican Senators, later referred to as the “Gang of 14,” joined to oppose both the nuclear option and the filibusters of judicial nominees except in rare circumstances. The seven Democrats agreed to vote for confirmation of most of the pending nominees and, in turn, the seven Republicans agreed to vote against the nuclear option. The Republicans in the Gang of 14 recognized that the Democrats might someday become the majority party in which case the Republicans would need the filibuster for unacceptable nominees of a Democratic president. Senator Frist agreed to honor this compromise.

Despite the long history looking to end the filibuster, it remained as a procedural option to block a presidential judicial nominee unless at least 60 senators supported him. Things finally changed in November 2013 when Harry Reid let the Senate vote to change the cloture rule. Senator Reid pushed for the nuclear option because of frustration with the Republicans who had blocked three of President Obama’s nominations to the United States Court of Appeals for the District of Columbia. By a 52 to 48 vote, the filibuster cloture requirement was changed for all nominations, except for justices of the Supreme Court, to only require a majority. All Republicans, the minority at that time, and three Democrats voted against the change. The three Democrats recognized that the change could dilute their power when the Republicans became the majority and they were right.

When Antonin Scalia died, President Obama nominated Merrick Garland to replace him on the Supreme Court. The Republicans held off on hearings for the nomination in hopes of winning the 2016 presidential election and then getting their own nominee. The Democrats, believing they would win the election, did not push for the necessary hearings thinking they would get their appointment when Hillary Clinton became president.

With the surprising win of Donald Trump, the Republican strategy turned out to be correct. Neil Gorsuch was nominated for the position and, predictably, the constitutional option was passed so that the Republicans could assure confirmation of the appointment. It was foreseeable that the Republicans would extend the option to include nominations to the Supreme Court when it became obvious they would not get cloture on the threatened filibuster. At least for now, any nomination for a judgeship in an Article III court, even a Supreme Court justice, will only need a majority vote in the Senate for confirmation.

With the politicization of judicial appointments, it is not surprising that some federal judges felt they had the power to block some executive orders and new laws with the injunction power until such time that the cases were litigated and appealed. Since the litigation could take years, they were effectively blocking the laws until a more favorable President could be elected.

This change in confirming justices for the Supreme Court and other Article III judges will have significant importance for health care providers as the constitutional questions of parts of the Affordable Care Act, such as the Independent Payment Advisory Board, and other health care related issues make their way to the Court. All health care providers need to stay informed to be better able to advocate for their patients’ best interest.

For the Newsletter for the Eastern Cardiothoracic Surgical Society Standard and Ethics Committee

As mentioned in a previous newsletter, the American Law Institute (ALI) has published a recommendation that medical malpractice law should change the requirements of negligence from reliance on customary care i.e., care that a reasonable physician would do if faced with the same or similar circumstances, to a requirement to use guidelines based on evidence-based practice. A physician not following guidelines would then have the burden of proof shifted to him to show why the guidelines were not followed.

The ALI, which is composed of lawyers, judges, and other legal scholars, based their recommendation on the premise that patients would be better served if their care was based on the guidelines which were formulated by medical experts based on best evidence. I have commented on this recommended change in a previous newsletter.

Not surprisingly, the ALI has also taken a stance on the law of informed consent. Traditionally, the states have taken two approaches in determining what information the health care providers would need to present to the patient, or the patient’s surrogate, so that an informed decision can be made. In both approaches, the patient needs to be given “material” information. Unfortunately, the ALI did not clarify what the “material” information should be in both approaches.

In both approaches, the patient must be allowed to ask questions and the provider should answer the questions to the best of his ability.

Many patients have limited knowledge of medical issues so it is a challenge for the provider to know how much information should be conveyed so that adequate informed consent can be given. The provider-oriented duty to disclose was dependent on the community standard to disclose what a reasonable physician within the community would disclose under the same or similar circumstances.

In “provider-centered jurisdictions, information is ‘material’ if it would be shared by ‘competent…medical providers of the same type in similar circumstances’”1 The provider-centered approach has been criticized for being too paternalistic and at odds with the concept of patient autonomy being paramount in medical ethics.

Recognizing that the community standard tended to protect physicians by limiting standard disclosures which may not have been in the patients’ best interest, the D.C. Circuit Court of Appeals changed the duty to disclose standard in the case of Canterbury v. Spence2.

In Canterbury, a patient was undergoing a laminectomy for back pain. He fell out of bed and became paralyzed. Spence sued because he had not been told of this possible complication.

The surgeon had not told Spence about this possible complication because it was rare (1%) and he believed that Spence would not have consented for this indicated procedure if this possibility was raised.

The D.C. Circuit decided that the following would be “material” information needed for the patient (or designated surrogate) for an informed consent to occur. The provider would need to disclose “(1) the condition being treated; (2) the nature and character of the proposed treatment or surgical procedure; (3) anticipated results; (4) recognized possible alternative forms of treatment; and (5) recognized serious possible risks, complications and anticipated benefits…”3 (emphasis added)

In the “patient-centered jurisdictions, information is ‘material’ if a reasonable person, in what the provider knows or should know to be the patient’s position, would likely attach significance to the information in deciding whether to consent to the treatment.”4 Tennessee uses this patient-centered approach.

The patient-centered approach has been adopted by most states and by the American Medical Association. Unfortunately, these required disclosures are vague and undefined. The ALI had an opportunity to clarify these “material” issues, but they chose not to.

For some reason, the ALI has not chosen to push for the patient-centered approach for informed consent despite the legal push for this doctrine. In the Reporters’ Notes, ALI suggests that current medical professionals are being trained in medical ethics and are now aware of the importance of patient autonomy and professional practice is now following the patient-centered approach even where the state law allows for physician-centered practice.

I think the ALI is not being realistic if it believes that the provider-centric and patient-centric approaches will equally embrace the goal of patient autonomy and self-determination as to informed consent.

No matter which approach is used for the patient consent process, the ALI still leaves unresolved consequences of providers’ failure to comply with the patient’s direction. If the physician does a procedure for which he does not have consent, he would be liable for negligence in New York; but the same case would be a battery in Georgia. The ALI could have clarified this area of legal confusion, but they did not.

Also, it is still unclear how the law should handle the situation where the physician does not provide the medical care that the patient does consent to. This is the murky area of futile care. Most states will not compel physicians to provide care they deem to be futile, but they may still face a malpractice suit alleging failure to provide competent care. Again, the ALI does not weigh in on this issue, so providers need to familiarize themselves with the law in their state. The lack of uniformity of the laws makes providing care even more difficult than it already is.

What about the situation where the patient (or the surrogate) makes it clear that the patient should not be told any bad news about his medical condition? This is not a rare occurrence in some religions or cultures. The ALI could have clarified this issue, but they did

not. For now, if the patient (or surrogate) opts out of the consent process, then a quick call to a judge may need to be done. The judge may even give the decision-making power back to the physician; a complete turn back to the medical paternalism of the past. Very ironic.

What if a patient asks the surgeon about his level of expertise dealing with the recommended surgical procedure? In most states, surgeons are not required to reveal specific information about themselves, but in Johnson v. Kokemoor, the court held that the physician may have to disclose this information if a reasonable person would need this information to give informed consent.5 In Johnson, Johnson ended up a quadriplegic after Kokemoor, a neurosurgeon, clipped an aneurysm of the posterior basilar artery. Johnson argued that she should have been referred to a more experienced surgeon.

The ALI did nothing to clarify as to the “materiality” of this type of question.

I predict that the ALI will eventually succumb to the push to make the informed consent process using the patient-centered approach to avoid any chance of reverting back to medical paternalism.

As to futile care, be sure you know the laws of your state to avoid being sued for denial of care under the “loss of chance” doctrine.

Darryl Weiman, M.D., J.D.

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1 Restatement (Third) of Torts: Medical Malpractice section 12 (c)(1) (Am.L. Inst., Tentative Draft No. 1, 2023). 2 Canterbury v. Spence, 464 F2d 772 (DC Cir 1972). 3 Id. 4 Restatement (Third) of Torts: Medical Malpractice section 12(c)(1) (Am. L. Inst., Tentative Draft No. 1, 2023). 5 Johnson v. Kokemoor, 545 NW2d 495 (Wis 1996).