When I was in law school, I took Federal Courts, a notoriously difficult and complicated class, with Laura Little, who taught it with grace and style. (Law students, take note: she wrote a commercial outline with rave reviews.) Afterwards, I told her how much I liked the class, and asked her what I should take next (law students, again take note: great way to get recommendations for classes) and she pointed me to Michael Libonati, whom she said was “probably the smartest teacher on the faculty.”

With a recommendation like that, I dutifully took his State and Local Governments class, not realizing until I was in the class that it wasn’t merely an interest of his, but a subject on which he had written a four-volume treatise.

Anyone who studies State and Local Government law as a field comes quickly to a simple realization: there is even less “law” among states and municipalities than there is “international law” among nations. Every state conducts itself in an entirely different manner, and within states the law is changed to suit the circumstances. In Pennsylvania, for example, doesn’t have just cities or townships. As the Pennsylvania Legislator’s Municipal Deskbook says, Pennsylvania has one first class city, one second class city, one second class-A city, 53 third class cities, 961 boroughs, one incorporated town, 1,548 townships (91 first class; 1,457 second class), 501 school districts and 2,015 authorities, with different rules applicable to each of them.

That sort of diversity of legal relations isn’t necessarily a bad thing — Philadelphia, Pittsburgh, Harrisburg, Erie, Altoona, and rural communities with fewer than 5000 people are not merely different cities, but different types of cities, and so need to be governed differently — but it does make it exceedingly difficult to glean any sort of “legal principles” from the laws of states and local governments. Tailor-made law is more political policy than legal theory.

Before, during, and after law school I’ve always been a bit of a legal realist. At some point I was grousing to Prof. Libonati about a handful of state Supreme Court opinions about zoning law in which the wealthy real estate developers always on their challenges against the local boards but the individual homeowners always lost when I asked him, “is anything in the law real or are these opinions all just rationalizations?”

Burdens are real,” he replied briskly as if he had considered and answered similar questions before. “Burdens decide cases.”

Which brings me to the inspiration for this post. I hadn’t intended to write again so recently about emergency medicine malpractice, but last week Walter Olson sent WhiteCoat the opinion in King v. St. Barnabas, a first-responder negligence case in which a New York appellate court reversed the trial court’s entry of summary judgment in favor of the defendants. As the opinion recounted:

In this case, involving allegedly negligent resuscitation efforts by a team of first responders, we revisit the vexing question of the degree of certainty necessary to establish legal or proximate cause in a medical malpractice action.

By definition, victims requiring resuscitation are found in grave condition from which the likelihood of recovery may be negligible. These circumstances, however, cannot excuse first responders from all responsibility when they fail to abide by professional standards. Negligent resuscitation attempts — while not a but-for cause of the victim’s distress — may nonetheless contribute to a death so as to make the imposition of liability appropriate. …

In February 2009, defendants moved for summary judgment dismissing the complaint, arguing that the opinion of their medical expert established that the emergency medical treatment rendered to Murray was within accepted medical standards, and, in any event, had not contributed to his death.

[Defendants’ board-certified emergency physician expert] noted that when the first responders arrived on the scene, they found Murray to be in an asystolic state. He noted that “asystole is an ominous finding in victims of cardiac arrest in which the heart stops beating and is characterized by the absence of electrical and mechanical activity in the heart,” and opined that the possibility of survival from such a state “is extremely rare, especially in the absence of immediate bystander CPR.”

WhiteCoat wasn’t happy. Most everyone, WhiteCoat included (I think), agrees that it’s negligent to administer electrical defibrillation to an asystolic rhythm. Instead, it’s the standard of care to begin CPR, provide supplemental oxygen, and add intravenous lines to administer epinephrine and atropine. WhiteCoat attacks the causal connection between that error and the decedent’s death: the decedent was asystole, which is essentially dead anyway, and the odds of recovering from that — even with proper treatment — are miniscule. As WhiteCoat put it, the defendants were being sued for not performing a miracle.

We’ll return to that in a minute. First, some of my prior thoughts about the Casey Anthony verdict:

Casey Anthony’s acquittal is not an example of “the system working.” The system “works” when the guilty are convicted and the innocent are acquitted. Here, a person most people — including the jurors who have spoken with the media — believe is likely guilty of murder is now walking free. That’s not “the system working.”

Instead, what happened here was a preferable error. Our society has generally agreed that it is better for someone like Casey Anthony to go free than for an entirely innocent mother to be wrongly convicted of murdering their child. Thus, by use of the “beyond a reasonable doubt” standard, we set up our criminal prosecution system to prefer false negatives (wrongfully acquitted) to false positives (wrongfully convicted).

In other words, the burden of persuasion and burden of proof are often established in part based upon our society’s preference for one type of error versus another.

The same reasoning can be applied to medical malpractice cases. Which situation do you believe is worse:

  1. a meritorious malpractice case is erroneously dismissed by a court before trial; or,
  2. a malpractice case with no reasonable chance of success is erroneously permitted by a court to go to trial?

Your answer likely depends on the letters that follow your name and if you or someone close to you has ever felt like you were the victim of medical malpractice. My point isn’t to argue for one versus or another, but to note that choosing one legal policy versus another is indeed a choice. There’s no “correct” legal answer; it’s up to society to decide which is worse.

New York state’s laws hold that #1 is worse than #2, which is why the appeals court concluded:

On a motion for summary judgment in a medical malpractice action, the defendant doctor has the initial burden of establishing the absence of any deviation or departure from accepted medical practice, or that any such departure was not a proximate cause of the injury or damage alleged. Proximate cause is established where the defendant’s conduct was a “substantial factor” in bringing about the injury (Stewart v New York City Health & Hosps. Corp., 207 AD2d 703, 704 [1994], lv denied 85 NY2d 809 [1995]).The motion court, in granting defendants’ motion for summary judgment, misapprehended the standard for establishing proximate cause. The motion court found that plaintiff failed to raise a triable issue of fact as to whether defendants’ departures caused the decedent’s death, noting that plaintiff’s expert had failed to offer statistics concerning the survival rates of patients in an asystolic state, and could not predict whether Murray would have been saved. This Court, however, has cautioned that “proximate cause is a legal concept which cannot be dissected and measured in terms of percentages,” and that it “has proven to be an elusive [concept], incapable of being precisely defined to cover all situations” …

The evidence in this case supports the inference that by shocking decedent when he was in an asystolic condition and by failing to timely administer the appropriate cardiac medications, defendants diminished decedent’s chances of recovery and may have further damaged decedent’s heart. “If the proof is ambivalent as to whether the deceased would have died regardless of the malpractice, a pure factual issue is raised . . . and such an issue can only be resolved by a jury determination of whether the malpractice proximately deprived the deceased of that substantial possibility” (Mortensen, 105 AD2d at 157).

(Emphasis added). In New York, once the plaintiff has shown a prima facie case of malpractice, the defendant then has the burden of showing the absence of negligence or of causation.

As far as I can tell, most emergency physicians and paramedics would agree that, although it’s unlikely that appropriate treatment — i.e., CPR and IVs instead of defibrillation — would have saved the decedent’s life, it’s certainly possible. Under those facts, the appellate court was undoubtedly right in its holding: because it’s possible that appropriate treatment would have saved the decedent, the case has to go to a jury. The burden of proof decided the case.

That summary judgment standard at work in King isn’t set in stone; in a number of states, the court would have held that the plaintiff has the initial burden of showing probable causation. Here in Pennsylvania, for example, the Pennsylvania Supreme Court said in Toogood v. Rogal:

Relaxing the burden of proof in medical malpractice cases might correct a perceived unfairness to some plaintiffs who could prove the possibility that medical malpractice caused an injury but could not prove its probability. However, health care providers might then find themselves defending cases simply because a patient failed to improve or when serious disease processes were not arrested and where another course of action might possibly have brought a better result. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably, rather than possibly, caused the injury. Thus, we cannot approve the substitution of such an obvious inequity for a perceived one.

Toogood involved a separate issue — whether or not a plaintiff in a medical malpractice case needs an expert (the answer is “almost always”) — but the reasoning could be applied in other instances. It wouldn’t surprise me in the least to see a number of Pennsylvania courts hold that the decedent in the King case had only introduced possible instead of probable cause.

Which I think is a shame. The right to jury trial is one of the founding features of America. The framers themselves wouldn’t have recognized anything like the “summary judgment” by which judges decide cases instead of juries, raising doubts about its constitutionality. Once the plaintiff has come forth with appropriate expert testimony showing a deviation from the standard of care and a connection between that deviation and the decedent’s harm, who is the court to say otherwise? Don’t we have juries for the precise purpose of answering those sorts of factual questions?