Summary judgment in medical malpractice: The case of Hoard v. Roper Hospital

In May 2010, the Supreme Court of the State of South Carolina issued an opinion that should reassure any physician or surgeon concerned about the fairness of the American judicial system. In its ruling, the court upheld a lower court’s decision to grant a motion for summary judgment for the defendant radiologist in a medical malpractice lawsuit that involved multiple defendants. An examination of this ruling and the relevant issues is as follows.

During litigation, a motion for summary judgment is a pleading that can be filed by either party, assuming that the party believes that depositions and affidavits demonstrate that there are no genuine issues of material fact that a jury needs to consider for a verdict to be rendered. In American jurisprudence, the court is responsible for making legal determinations, ie, those decisions concerning the litigation that are based on black-letter, or undisputed, law. In contrast, the jury’s sole function is to determine the facts as best as possible from the evidence presented and apply those facts to the instructions of law delivered to the jury, by the court, at the end of final arguments.

Summary judgment

If a court finds it appropriate to grant a motion for summary judgment — it renders a verdict in favor of the moving party by agreeing that there are no issues of material fact that a jury needs to determine — one need not have a jury consider the facts, since consideration of the facts is irrelevant; application of legal principles alone is dispositive.

B. Sonny Bal

Lawrence H. Brenner

Summary judgment is rarely granted because our judicial system favors examination of the facts by juries and great deference is given to the outcomes of jury trials, with appeals limited to technicalities and precise questions of law. Facts are not re-litigated on appeal. Since legal cases are won or lost at trial, summary judgment is a drastic measure that forecloses a party’s right to a trail. Accordingly, as a technical matter, courts are required to draw all factual inferences in favor of the party against whom the motion has been filed, before granting a motion for summary judgment.

Illustrative case:

The South Carolina case of Hoard v. Roper Hospital, Inc., et al, represents an example of the court’s willingness to grant summary judgment in a malpractice case. This was a tragic case involving a newborn who suffered brain damage and paralysis due to the alleged negligence of multiple medical providers. There were four defendants in the lawsuit, and all but one, the radiologist, entered into a settlement with the plaintiff.

The facts of the case: Shortly after the plaintiff, Jamia Hoard, was born, she developed respiratory distress and was transferred to a Level 2 nursery. Her treating physician thought it was necessary to place a peripheral intravenous line for the infusion of medication and fluids and for the withdrawal of blood for testing. When the nurses were unable to place the IV, the treating physician ordered an umbilical vein catheter (UVC). The UVC was inserted, but was malpositioned placing Jamia Hoard at risk of a heart attack due to erosion of the wall of the right atrium.

After insertion, the UVC was not drawing blood and was advanced further. A follow-up chest X-ray was performed to verify catheter positioning. The X-ray was sent for review to the defendant radiologist; preliminary review by the party inserting the UVC did not show any problem with placement. But, the chest X-ray clearly showed that the UVC was malpositioned; the radiology report stated “an umbilical vein catheter has been placed. The tip terminates high within the right atrium. There are persistent bilateral coarse infiltrates essentially unchanged compared with the prior exam. No pneumothorax is seen.” The X-ray report was sent to the nursery where it was read by the treating physician who documented the placement of the UVC in his progress note.

The next day, Jamia went into cardiac arrest, and the treating physician instructed his staff to pull the UVC back. Jamia then developed cardiac tamponade, and despite resuscitation, ended up with serious brain damage and paralysis from the cardiac complications. In their lawsuit on behalf of the girl, plaintiffs alleged that the radiologist was negligent in not stating that the UVC was malpositioned, nor alerting any of the medical staff about the risk of potential harm to the patient.

Evidence and reasoning at trial

Following the X-ray report, the treating physician reviewed the X-rays and testified that he considered repositioning the UVC, but decided that in his clinical judgment, the risks outweighed the potential advantages. He made this decision even though he was well aware that the placement of the UVC was outside the standard of care, according to his testimony.

The radiologist’s motion for summary judgment was not based on a denial of negligence, but rather that his alleged failures did not cause or contribute to Jamia Hoard’s catastrophic outcome. The mechanics of a motion for summary judgment are well illustrated in this case; essentially the radiologist pleaded that whether or not his conduct fell below the standard was irrelevant; there was no need for a jury to consider facts that might lead to a finding of sub-standard conduct, because, even so, his conduct did not contribute to the alleged damages.

Thus, the radiologist argued that without the requisite element of “causation” there could not be any way under law that a jury could make out a case of medical negligence; hence the court should grant the motion for summary judgment in his favor. Attorneys for the radiologist argued that the treating physician had reviewed the X-rays himself, made an independent decision not to reposition the UVC, therefore, there was no evidence to submit to a jury that there was a cause-and-effect relationship between the radiologist’s alleged failures and Jamia Hoard’s outcome. Culpability, if any, simply rested with another party in the litigation, and that party had already settled, thereby closing the case.

The counter argument:

The plaintiffs countered that the jury had every right to disbelieve the treating physician’s unsubstantiated testimony that he had considered, but rejected, repositioning the UVC. After all, the treating physician had already settled with the plaintiff and was at no risk in accepting responsibility in a way that would eliminate all liability of the radiologist — a fellow member of the hospital medical staff. This was, they said, the medical community looking out for one its own.

In support of this argument, there was testimony that when UVCs are repositioned, babies do not suffer any significant injuries. There was direct evidence that if the treating physician had repositioned the UVC, Jamia Hoard would not have developed the cardiac complications. Further, there was evidence that the treating physician’s claim that his failure to reposition the UVC due to clinical concerns was unsupported by the medical literature. Finally, there was evidence that in other, similar cases that same treating physician had re-positioned catheter lines that were malpositioned, with no adverse effects.

The plaintiffs contended that it was possible that the treating physician gave false testimony to cover his radiologist colleague; and hence, it was the role of the jury to determine whether or not his testimony was credible, reliable and truthful. The plaintiffs further contended that had the radiologist made it clear in his report that there was a malpositioned UVC, then action would have been taken to prevent the process that led to Jamia Hoard’s cardiac arrest.

Procedural history and analysis:

In this case, the trial court granted the radiologist’s motion for summary judgment, but upon appeal the next higher court reversed. When the reversal was appealed to the South Carolina Supreme Court, that judicial authority reversed again and reinstated the trial court’s grant of summary judgment in favor of the radiologist. The high court reasoned that the plaintiffs’ contention that a jury might find the treating physician’s testimony unreliable, and offered to protect his radiology colleague, did not constitute a genuine issue of material fact. Plaintiffs could not rely on such speculation to defeat an otherwise properly granted motion of summary judgment.

What do you think?

Do you think the court should have let the jury determine whether the treating physician’s testimony was truthful?

Do you think the radiologist was obligated to contact the treating physician to notify him that the UVC was malpositioned?

The treating physician was a neonatologist. In your opinion, was he as competent as the radiologist in interpreting the x-ray? If not, was it incumbent upon the radiologist or the treating physician to initiate a consultation over the potential for harm if the UVC was not repositioned?

Can you think of other, similar circumstances in orthopaedic surgery where summary judgment would be an appropriate remedy?

• B. Sonny Bal, MD, JD, MBA, is associate professor of hip and knee replacement in the department of orthopedic surgery, University of Missouri School of Medicine. Lawrence H. Brenner, JD, is on the faculties of orthopedics at Yale University and the University of Southern California and practices in Chapel Hill, N.C. Address all correspondence to Brenner at lb@lawrencebrennerlaw.com.