Blog Ipsa Loquitur

Published on under Legal Theory

One of my favorite blogs, written by an Emergency Department physician (WhiteCoat), covers a lot of medical issues and medical policy news; I’m always intrigued by perspectives on these topics other the litany of articles by lawyers and economists. It’s journalism from the trenches, and everyone can appreciate a perspective informed by a career on the front lines. If a doctor says a certain part of the health care system sucks, or a “reform” would actually make things worse, it’s hard to argue.

A few weeks back, a hospital in New Orleans settled a class-action lawsuit for $25 million. The hospital was sued after Hurricane Katrina: the complaint chiefly focused on the allegedly insufficient disaster preparation of the hospital’s owner, Tenet Healthcare Corporation. Such failure to prepare was alleged to have caused injury to hundreds of patients, and led to the death of forty-five of them.

WhiteCoat posted a rather narrow-minded critique of a legal system that allows for this sort of result, titled “Where Are Force Fields When You Need Them?” In the comments of his blog post, I attempted to explain why the settlement wasn’t a miscarriage of justice, and what the legal standard was for a lawsuit like this (hint: it does not involve Force Fields).

If you scroll down to the comments section, you’ll see that I was not what one could safely call “successful.” I may have more success if I’m not constrained to a comment on someone else’s blog. Let’s try that again.

Not All Liability is the Same

Fundamentally, lawsuits like this are about negligence. The hospital was negligent in planning for a disaster, so sick people died. The supermarket was negligent for not cleaning a spill on the floor, so someone slipped and fell. The guy tossing his cigarette in the bushes was negligent, so the lawn caught fire and your whole house burned down. These scenarios all have a lot more in common than “something bad happened, and we will hold someone accountable.”

Note: there is a legal standard where that’s all the plaintiff needs to demonstrate. It’s Strict Liability, and it’s harsh. Way harsh. The plaintiff doesn’t have to show fault, or carelessness, or recklessness, or malfeasance, or anything other than “this guy did this, now where’s my money?” That’s not what the Tenet lawsuit is about, nor should it be: we’re only going to be discussing Negligence now.

We see Strict Liability chiefly in products liability cases. Say you were using a chainsaw when the chain broke and cut your leg; the legal system doesn’t require you to figure out where the design flaw in the chainsaw lay, or whether it was the fault of the steel supplier, the plastic supplier, the assembly robot, the assembly robot installation guy, or any of the five thousand other people remotely related to the production and sale of the chainsaw. That’s silly. It’s almost as simple as ‘show up at the courthouse and bring your receipt.’

Negligence Was the Case they Gave Me

Defined briefly, Negligence is the breach of duty of reasonable care owed to a person who was foreseeably injured by a defendant’s unreasonable act. There’s a lot to unpack here, but the key word is “reasonable.”

This is really where WhiteCoat missed the point. His big gripe is that, for a hurricane as devastating as Katrina, only force fields or nuclear-powered hovercrafts would have saved everyone. He’s probably right. But we’re not looking at the results and saying “Tenet should have done better” here. That’s not how Negligence actions work.

In the best case scenario, maybe there could have been no deaths, maybe there could have been forty deaths, or maybe four hundred deaths, and this case still could have turned out the other way. It’s irrelevant. Negligence isn’t about a failure to have the best possible results, or even the failure to have good results. It’s a failure to act reasonably, thus causing injury to people to whom you owed a duty to act reasonably.

If you don’t act reasonably, yes, it’s likely that you’ll fall short of the ideal outcome, and someone could suffer an injury. The Negligence lawsuit happens when someone is injured, but the defendant is not liable because he could have done better by not injuring anyone. The defendant is liable because he owed a duty to exercise reasonable care, he failed to do it, and someone was injured.

Meet the Tenet Healthcare Corporation

So here’s the deal. Tenet owns lots of hospitals, but they’re not terribly good citizens. They have settled a number of lawsuits over the years with just about everyone they deal with: patients, employees, investors, regulators, labs, etc. They have paid a lot of money to avoid juries over the last decade: $29 million for Medicare fraud in 2002. $17 million for overcharging federal health care programs in 2002. $54 million for medical necessity fraud in 2003. $30 million for overcharging patients in 2005. $395 million for unnecessary open heart surgery in 2005. $900 million for Medicare fraud in 2006. $215 million for misleading its investors in 2006. $85 million for denying employees overtime pay in 2009.

This does not represent every lawsuit Tenet has defended. Not even close. These are the cheaper(!) ways out of some of the closer calls they might have had. You could say that this is symptomatic of a legal system that’s gone out of control, and just doesn’t know when to stop second-guessing hardworking professionals.

Or, you could see a company with a demonstrated history of executive malfeasance. Lying to investors, lying to regulators, lying to patients, mistreating employees, defrauding Medicare; hospitals owned by Tenet have a long history of this kind of behavior. One of the other commenters on WhiteCoat’s blog post used to work at a Tenet facility. She says:

They’re cheap bastards that will compromise patients’, families’ and staff safety for a buck. I live in St. Louis, worked at my hospital for 9 years and NEVER once saw them run through even a basic tornado drill. Most of the nurses I work with don’t know the basics to this.

(For those outside the US, St. Louis is in a state that has seen nearly 2000 tornadoes in the last 60 years, though only a few dozen were within St. Louis, they’ve injured over 600 people. Tornadoes in the midwest are a serious danger.)

This is not a company that seems to keep a tight leash on what their hospitals are up to. Indeed, if you read the original New York Times article about the Hurricane Katrina Aftermath trial, you get a distinctly different impression.

The class-action suit is expected to highlight desperate e-mail exchanges, not previously made public, between the hospital and its corporate parent.

“Are you telling us we are on our own and you cannot help?” Sandra Cordray, a communications manager at Memorial Medical Center, which sheltered some 1,800 people, wrote to officials at the Tenet Healthcare Corporation’s Dallas headquarters after begging them for supplies and an airlift.

Tenet corporate headquarters did not have an emergency command system in place and established one as the disaster unfolded. Company officials lobbied hard to get federal rescuers to prioritize Memorial, warning that dozens of patients were in danger of dying.

If Plan B was really “lobby federal officials,” I think they must have become used to solving their problems by throwing lots of money around. (See: that paragraph above with all the $$$ for settlements.) Tenet may not have been on the ball. The fact is that they just paid $25 million to keep a judge from asking a jury if they were negligent. That means Tenet thinks at least twelve people might see it that way, too.

Hurricanes and Hospitals: A Primer

Why would a jury see it this way, anyway? Again, Reasonableness is the key word in avoiding liability in a lawsuit like this. What’s a reasonable way to handle this situation? Force fields and hovercrafts are way, way beyond reasonable, though they would probably work. The reasonable way to handle the situation may still result in some fatalities: certainly, in the case of hurricane Katrina, most folks were not completely and omnisciently prepared for how badly that ended up going. And that’s okay.

However, a failure to make reasonable preparations for a hurricane when you’re a hospital in a hurricane-prone town below sea level isn’t okay. What would have been reasonable? That’s a good question. From the New York Times article again:

It has been previously reported that [Tenet’s subsidiary] Memorial did not act on a 2004 recommendation to move components of its electrical system above the ground floor. New documents raise questions about whether design, maintenance or other factors led to the total failure of backup power after the floodwaters rose.

The Times article also mentions that the backup generators might have failed due to improper maintenance, not rising floodwaters. Not keeping your backup generators ready to generate power for more than a few hours might mean you’re not reasonably prepared for a disaster. Deciding to keep sensitive electrical equipment below sea level also might mean you’re not reasonably prepared for a disaster. These are the sorts of issues that would have come out at trial, and Tenet decided to skip the trial and go right to the checkbook.

Really, the point is that Tenet did not need to plan for every contingency, save every life, and magically turn back the waters. The legal system doesn’t hold a hospital to this kind of standard, which is great, because no one could have. I certainly can’t, otherwise I’d have a great line for my cover letter when sending my resume to Tenet Healthcare: “boy, can I save you guys a lot of money in (some of your smaller) settlements!” Tenet needed to be reasonably prepared; that’s all the law requires. No force fields, no hovercrafts, no perfect outcomes, no happy people.

One last bit that really confused me was WhiteCoat’s insistence that it’s never fair to look back on someone’s actions and tell them that they should have acted differently. Virtually all legal actions are retrospective judgments of past behavior. Golly, OJ, you really shouldn’t have stabbed your wife to death. Gee, Kenneth Lay, you shouldn’t have committed all that corporate fraud. Wow, Dominic, you really shouldn’t have written libelous things about Mr. Simpson or Mr. Lay. Lawsuits talk about things that happened in the past because that’s how we evaluate our actions.

Seriously, when else would you sue? Before the negligence or any injury happens? Do you stand around and hope that Tom Cruise can crack the case before the court date? Doctors don’t give you chemo before you get cancer. Lawyers don’t file lawsuits before there’s an injury.

(Yeah, yeah, injunctions are prospective prohibitions on certain actions, but it’s just as unreasonable to expect patients sitting in a hospital to enjoin negligent preparation as it is to Minority Report your way through pre-emptive negligence actions.)

Part of what lawyers and the other risk-management types do is prospectively examine their clients’ potential liability from regulators or plaintiffs. I guarantee that Tenet’s legal department would have had conniptions if they knew the generators weren’t regularly repaired, or that a report suggesting the electrical equipment be moved off the ground was ignored. (Hell, I bet the doctors working in the hospital would have been pretty freaked out, too.) Then again, Tenet’s legal department seems to spend a lot of time negotiating settlements and writing checks to dodge juries, so maybe I’m giving them too much credit.

In that case, I’m for hire, guys.