Inherent Function

The legal doctrine that decided this case. When a hospital contracts out its emergency department, can it still be liable for the contractor's care? This episode walks through the appellate ruling — and the documentation lessons every hospitalist and emergency physician should take from a case where the hospital's structural relationship with its ED group became the central question.  

Transcript

SPEAKER_00 1:31

Approximately two and a half weeks before trial was scheduled to begin, the trial court entered an order granting partial summary judgment in favor of the plaintiff on the question of vicarious liability. The order held the defendant hospital vicariously liable as a matter of law for the conduct of the emergency department physician under the inherent function doctrine.

SPEAKER_01 1:51

This is on the record. I am Michael Coleman. This is Season 5, Episode 3. Tonight we walk through the legal architecture of the trial. We open with the inherent function vicarious liability ruling. We walk through the dismissal of the comparative fault defenses and explain what that means. We walk through the motions in limit order, including the exclusion of the autopsy photographs. We walk through the trial, the verdict, the post-trial motion for a new trial, and the trial court's analysis of an unresolved inconsistency between defense experts that the defense then attempted to address in closing argument. We walk through a contempt finding arising from a cross-examination that crossed a pretrial line. We walk through the appeal and the petition for review, and we close with a few teaching points drawn from the record.

SPEAKER_00 2:47

The inherent function doctrine focuses on whether a function is so central to what a hospital does that the hospital cannot avoid liability by outsourcing the function to an independent contractor. Adamski held that the provision of emergency care is an inherent function of an acute care hospital. The doctrine does not depend on evidence of patient belief or on signage and paperwork. It depends on the nature of the function at issue. The ruling placed the defendant hospital on the verdict form for any negligence the jury found on the part of the emergency department physician, regardless of the contractual arrangement between the hospital and the physician group.

SPEAKER_01 3:42

For the clinical work performed by group physicians in the hospital's emergency department. The inherent function doctrine is not the law in every state, and the doctrine's application varies with subsequent case law. The broader point is that vicarious liability analysis in any given jurisdiction is not a settled matter. Group contracts, staffing arrangements, and credentialing documents are not a uniform shield.

SPEAKER_02 4:15

Approximately one week before trial, the trial court entered an order granting in part the plaintiff's motion for partial summary judgment regarding comparative fault and affirmative defenses. The order dismissed certain affirmative defenses pleaded by the defendant physician group and by the defendant hospital, including defenses directed at the comparative fault of the decedent and at the fault of non-party physicians.

SPEAKER_00 4:44

Before we walk through what that means, I want to pause and define a piece of legal terminology the audience will hear repeatedly in this episode. A motion in liminae. A motion in limino is a pretrial motion asking the judge to rule in advance on whether certain evidence, testimony, or argument will be allowed in front of the jury. Lawyers file these motions before trial because they want those rulings settled before the jury is in the room. The idea is to keep the trial itself clean. If the judge has already ruled that a category of evidence is out, both sides know the rule going in, and neither side has to spend trial time objecting in front of jurors, which can itself be prejudicial because jurors hear the objection even if the evidence is ultimately excluded. Now, comparative fault, comparative fault is the legal doctrine that governs how a jury assigns responsibility when more than one party, potentially including the plaintiff, may bear some share of fault for the injury. The specific version of comparative fault varies by state, and the variation matters a great deal. Under a pure comparative fault rule, the jury assigns percentages of fault to each party, and the plaintiff's recovery is reduced by the percentage of fault assigned to the plaintiff. Even if the plaintiff is 90% at fault, the plaintiff can still recover 10% of the damages. Under a modified comparative fault rule, which is the law in most states, the plaintiff can recover only if the plaintiff's share of fault is below a threshold. 50% in some states, 51% in others. If the plaintiff crosses that threshold, the plaintiff recovers nothing. A small number of states still follow pure contributory negligence, a much stricter rule. Under that doctrine, any fault on the plaintiff's part, no matter how small, bars recovery entirely. The plaintiff gets nothing. In this case, the trial court's ruling dismissed the comparative fault, affirmative defenses that had been pleaded. The practical effect on the architecture of the trial was that the verdict form did not contain a line for the jury to assign any percentage of fault to the decedent. The defense could not argue at closing that any portion of the responsibility for the outcome belonged to the patient. For example, that she should have returned sooner or that she should have reported symptoms differently. That theme was removed from the case before trial.

SPEAKER_01 7:24

In this case, the court ruled that the record did not support submitting that question to the jury at all.

SPEAKER_02 7:34

The order on motions in Le Mine, entered approximately one week before trial, resolved a substantial number of pretrial evidentiary motions from both sides.

SPEAKER_00 7:46

One plaintiff motion sought to exclude any expert testimony advancing the theory that the patient would have refused a lumbar puncture if one had been offered. The trial court granted the motion in part. The emergency department physician was permitted to testify to actual conversations she recalled having with the patient at the bedside. Expert opinion testimony to the effect that the patient would have declined the procedure was excluded. A second plaintiff motion sought to exclude radiologic interpretations that had not been available to the morning emergency department physician at the time of her bedside decisions. The court granted that motion, subject to reopening if the plaintiff opened the door through cross-examination of the treating physician or the experts. A defense motion sought to exclude the plaintiff rebuttal expert's testimony as cumulative or beyond the permissible scope of rebuttal. The defense argued that the plaintiff's neurosurgery rebuttal expert had been designated in a rebuttal posture, meaning the plaintiff intended to call him after the defense case, but that the opinions he was going to offer were affirmative causation opinions that should have been disclosed and presented during the plaintiff's case in chief. The plaintiff's response was that the rebuttal expert was addressing specific opinions advanced by specific defense experts. Opinions that could only be rebutted after those defense experts had actually testified. The trial court permitted the plaintiff to call the rebuttal expert, reserving specific objections for trial. A motion, ultimately resolved by stipulation, addressed whether the defendant physician group's medical director could offer standard of care or causation opinions. The medical director appeared at trial as a fact witness only. The structural reason that kind of stipulation gets reached is worth naming directly. The medical director of a defendant physician group is not an independent retained expert. He is an employee and an officer of a party. The plaintiff's concern is that a medical director's expert opinions have not been subjected to the same independent vetting as a retained expert's opinions, and that the jury may give the medical director's testimony disproportionate weight. The mirror concern for the defense is that the medical director has institutional knowledge the plaintiff may want on cross-examination, and putting him on the stand as an expert opens that door.

SPEAKER_01 10:06

That is a useful teaching point for any physician who has ever assumed that their group's leadership can get on the stand and defend their care. In a contested case, the opposing party can, and often will, object to that testimony. And the stipulation that emerges may limit your own leadership to a fact witness role. The witnesses who defend your care on standard of care and causation are independent retained experts. Know that going in.

SPEAKER_00 10:34

An order was entered by stipulation limiting any claim against the defendant hospital to a vicarious liability theory. After the inherent function summary judgment ruling, the hospital's only exposure was as the party held responsible for the emergency department physician's conduct. Its fate rose and fell with the jury's finding on the physician.

SPEAKER_02 10:55

The Order on Motions in Limini also addressed the autopsy photographs from the post-mortem examination. The photographs were excluded. The exclusion ruling and its aftermath at trial is one of the more instructive parts of the entire trial court record. It is also the segment of the appeal where the Court of Appeals wrote its longest analysis.

SPEAKER_00 11:20

I want to walk through the factual story carefully before we get to the legal framework. Because the legal analysis only makes sense once you understand how the photograph surfaced. The autopsy was performed by the hospital pathologist. The photographs were therefore in the custody of the defendant hospital. The co-defendant physician group made a supplemental discovery request, specifically asking the hospital for the autopsy photographs. The hospital responded that it could not locate the photographs in its files. The photographs were not produced during discovery. They were not identified in any formal evidentiary disclosure. They were not listed on any trial exhibit list. They were not disclosed in the joint statement of evidence the parties submitted to the court. None of the defense experts had reviewed the photographs before their depositions, and none had relied on them in forming any standard of care or causation opinions. On the Friday before trial, the hospital located the photographs and emailed them to both the physician group and the plaintiff. The defense then indicated it intended to use the photographs with its infectious disease expert. The trial court held hearings on the photographs and excluded them. The court's stated rationale had two components. The first component was discovery. The photographs had not been produced in response to the physician group's supplemental request at a time when the plaintiff's experts could have been shown them and deposed about them. The trial court found that the photographs had been within the defendant hospital's exclusive control at all relevant times, that they were easily accessible to the physician group. As a co-defendant, had either party been diligent in pursuing them, and that the late disclosure had prejudiced both the plaintiff and any party who would have needed to prepare a response to the photographs before trial. The second component was the balancing rule that governs probative value against unfair prejudice. The court reviewed 16 autopsy photographs, considered what they depicted, and concluded that on the record as it stood, with no expert deposition testimony about them and no opportunity for the plaintiff's experts to respond, the probative value was outweighed by the prejudice. The Court of Appeals agreed with the plaintiff. The court held that the exclusion of the photographs did not trigger Burnett because the defendants retained a complete and fair opportunity to present their theory of causation through their expert witnesses and numerous other illustrative and substantive exhibits. The photographs were one piece of evidence among many. Excluding them was not a harsh remedy within the meaning.

SPEAKER_01 14:23

The post-trial record reflects that the defense infectious disease expert in a post-trial supplemental declaration said the photographs corroborated his opinion that there was a large pocket at the surgical site containing a residual collection of pus. But the underlying facts that there was a void at the surgical site and that there was purulent material in it were already in the autopsy report and were not disputed by any expert. The photographs themselves were the visual amplification of facts already in the record. The Burnett analysis the Court of Appeals performed is how appellate courts characterize that distinction in legal terms. Complete and fair opportunity is the phrase that controls. The defense had it. The photographs would have added emphasis, not substance. There is a learning point here. In a malpractice trial, the defense is not just about having the right experts and the right medicine. It is about discovery discipline. Evidence that is not produced in discovery, not listed on exhibit lists, not shown to your own experts before their depositions, and not disclosed in the joint statement of evidence can be excluded at trial. Even powerful visual evidence that might otherwise help the defense.

SPEAKER_02 15:48

The plaintiff's case proceeded through background, standard of care testimony from the plaintiff's emergency medicine, internal medicine, and infectious disease expert, and causation testimony from the same expert and from the plaintiff's separate infectious disease causation expert. The defense case was presented through the defense infectious disease expert, the defense neuroradiologist, the defense neurosurgeon, the defense emergency medicine standard of care expert, and the defense neurology expert. The plaintiff's neurosurgery rebuttal expert testified in rebuttal. Closing arguments and jury instructions were given, and the case was submitted to the jury. The jury was instructed using the standard medical malpractice framework applicable in that jurisdiction. The first question on the special verdict form asked whether the emergency department physician failed to act with the degree of care, skill, and learning required of a reasonably prudent emergency physician under the same or similar circumstances. The jury answered yes. The second question asked whether that failure was a proximate cause of the death. The jury answered yes. The damages questions allocated total damages of roughly $3 million. The judgment was entered on the verdict jointly and severally against the defendant hospital and the defendant physician group. After the verdict, the defense filed a motion for a new trial under the applicable civil rule. The motion raised several grounds, including improper rebuttal scope, the contention that the verdict was contrary to the weight of the evidence, asserted errors in the admission of evidence, and a juror misconduct claim, supported by a post-verdict declaration from one of the jurors.

SPEAKER_00 17:50

The trial court denied the motion in a 16-page written order. Two features of that order are worth walking through in sequence. The first is the trial court's treatment of the plaintiff's causation opinion, which the court credited in its analysis of whether the verdict was supported by the weight of the evidence. The second is the trial court's identification of an unresolved inconsistency between two of the defense's own experts on the central temporal question in the case. On the plaintiff's causation theory, the trial court's post-trial order walked through the components that the jury had been entitled to credit. First, the order noted the plaintiff's position that the meningeal phase of the illness had begun in the hours before the morning emergency department visit. Second, the order noted the plaintiff's position that ventriculitis was not yet present at the time of the morning visit, meaning that the disease had not yet advanced to the stage that drove the ultimate outcome. Third, the order noted the plaintiff's position that more likely than not, had a lumbar puncture been performed at the morning visit, an empiric intravenous antibiotics started within the window, the plaintiff's lead expert identified the patient would have survived. And fourth, the order noted the opinion carried by the plaintiff's neurosurgery rebuttal expert that meningeal enhancement on MRI attributable to a prior lumbar puncture, which was the defense theory of the imaging finding, would be expected to wash out within a window measured in days to weeks, at most a month or so, and that there was no basis to attribute the imaging finding to a lumbar puncture that had been performed approximately five years before the presentations at issue. The trial court's post-trial analysis treated those components as adequately supported in the record and consistent with a reasonable jury's weighing of the evidence. The second feature of the post-trial order is an inconsistency between two of the defense's own experts, an inconsistency that can be problematic in a medical malpractice case.

SPEAKER_01 19:46

The defense infectious disease expert took the position that the rupture of the infected material into the subarachnoid space was a sudden catastrophic event that occurred in the mid-morning while the patient was still in the emergency department being observed. And that the rupture produced what he described as instant meningitis from that moment forward. On his theory, no lumbar puncture performed during the morning visit could have detected the disease because for most of the visit the disease was not yet present in the subarachnoid space. The rupture was the starting gun. And in his view, once the rupture occurred, the outcome was uh effectively um unsurvivable. The defense neuroradiologist took a different position. He testified that the rupture was not sudden at all. It was a slow, gradual leak by a mechanism he described with a toothpaste tube analogy that had been developing over the preceding 24 to 48 hours. On his theory, the meningeal enhancement on the morning cervical MRI was the imaging signature of a process that had been underway for a day or more. In other words, on the defense neuroradiologist's own testimony, bacterial meningitis was already present at the moment. The morning physician was making her discharge decision. Those are two uh fundamentally contrasting opinions on the central temporal question of the case, and they generally cannot both be true. If the defense infectious disease expert is right, the rupture was at mid-morning, and no earlier lumbar puncture could have detected anything. If the defense neuroradiologist is right, the rupture had been underway for a day or more, and a lumbar puncture at the morning visit would have detected it almost certainly. One of those positions supports the defense of the case, the other effectively corroborates the plaintiff's timeline from the defense's own expert. The defense neurosurgeon tried to bridge the two with a hybrid position, and the defense neurology expert built on the infectious disease expert's sudden rupture theory. Uh, with his severed posterior fossa sensory nerve endings theory to explain the absence of severe head pain at the morning visit, they were saying opposite things about the question at the center of the case. When a closing argument has to tell the jury that the difference between two expert opinions is semantic, the argument asks the jury to look past an unresolved inconsistency in the defense's own theory. The trial court noticed, the jury noticed, and the trial court credited the inconsistency in the 16-page post-trial order as part of the reasoning for why the verdict was supported by the weight of the evidence. The mirror image of this, which we flagged in episode two, is worth saying one more time. The plaintiff had originally designated a fourth expert, a critical care expert, whose opinions turned out to be inconsistent with the rest of the plaintiff's causation theory, specifically on the abscess versus MPMA characterization of the autopsy findings. The plaintiff withdrew that expert before trial rather than walk the inconsistency in front of the jury. The defense had the same kind of problem. When your defense team retains multiple experts because the case has multiple dimensions, the experts each answer their lanes question by making assumptions about what the other lanes show, and those assumptions have to line up. Ask your defense counsel a specific question well before trial. Have you compared our experts' opinions side by side on the core disputed facts? Do they tell the same story? If they do not, what is the plan? An inconsistency between two of your own experts on the central temporal and mechanistic question of the case is a closing argument gift to the plaintiff that is extraordinarily hard to recover from.

SPEAKER_00 24:22

The controlling authority holds that a juror cannot, after a verdict has been entered, testify about his own mental processes during deliberation, or about how he would have voted if he had been shown evidence that the court had excluded.

SPEAKER_01 24:36

So the jury found for the plaintiff, they accepted the theory that bacterial meningitis was present during that second emergency room visit, and that a lumbar puncture could have altered this patient's course. Because there are a few moments where it is possible that someone could have intervened and changed the trajectory. Those are the teaching points I want to close with. The second emergency room visit was the critical window. Objective evidence was accumulating, the MRI abnormality, the elevated white blood cell count, the fact that she was back within 24 hours of her prior visit. We've talked before about anchoring bias, locking onto one diagnosis, and not being able to step back and see the broader picture. That may have played a role here. The patient did not look like a textbook meningitis patient. The clinical focus was on the cervical spine. The MRI excluded that pathology while raising a finding that could represent meningitis. Once the patient left the emergency department, there was likely no other meaningful opportunity to alter the outcome. This is an incredibly complex case. So what are the take-home points? First take-home point. This case highlights diagnostic momentum. We do not just inherit patients, we inherit the story already forming in the chart. A prior diagnosis of flu-like illness, an elevated white count, and an abnormal MRI all likely shape the clinical frame. But the physician also appears to have acknowledged those findings and reassessed the patient based on the available data. The broader point is that all of us can lose situational awareness. We can anchor on one abnormality, downplay competing signals, and close too early on a working diagnosis. When that starts to happen, the best move is to step back, rebuild the differential, and look at the case with fresh eyes. Sometimes the simplest way to do that is to ask a colleague to see the patient and tell you what they think before they inherit your frame. The next take-home point is related to documentation. Always document your medical decision making. Document the differential, document what you worked up, and how you excluded specific alternatives. In a case like this, document specifically why you did or did not perform a lumbar puncture. If the patient refused, document the informed refusal discussion. If you did not think it was warranted based on your examination findings, document the specific examination findings and the reasoning that supported the decision. The lack of documentation specifics does not mean the care was not performed. But in a courtroom two years later, when the chart does not clearly define what you did and why you did it, the jury gets to decide who to believe. Next, pharmacologic improvement and confirmation bias. The chart reflects that the patient's headache and back pain had improved following a parental dose of analgesic, and that she described her remaining pain as a neck strain. I want to make three clinical observations about that moment. We may put more weight than we should in a patient having symptomatic improvement after analgesic administration. Let's not use that to confirm our suspicion that bacterial meningitis is not present, and we can look at it from another perspective. The patient received similar treatment on the prior day's visit and was back in the emergency room within 24 hours. So that would support an idea that the medications were providing only temporary relief. The second observation is that if the patient had been taking acetaminophen, tylenol, and ibuprofen at home, this may have blunted her fever response. Don't assume that the lack of a fever is a sign that there is not an ongoing serious infection. The medications she was taking at home very well could have been blunting this. Even the hospitalist noted that lack of fever was a poor prognostic sign. At the point that this physician was involved, the patient was at or near brain death and developing central diabetes insipitous with rapid diuresis. So it is possible that the lack of fever could be more of a sign of the degree of neurological damage at that point in time. Fevers may be absent or blunted in older adults, immunosuppressed patients, and in patients who have taken antipyretics or recent antibiotics, and that normothermia at presentation does not exclude the diagnosis. Third, decisions against indicated testing. The chart reflects the decision not to perform a lumbar puncture. When we decide against a test that the data points would support, the chart needs to carry the reasoning, the alternative explanations considered, the bedside findings relied on, the safety net in place, the specific return precautions the patient was given, charts that document reasoning carry the reasoning in front of a later reader. Fourth, and this is the single most important teaching point for me in the entire record, the white blood cell count of 19,000 with 92% neutrophils, and the post-discharge chart addendum that the elevated white cell count remains a mystery. An unexplained leukocytosis combined with the other data should make us pause. A charted note reading remains a mystery is not a closure of the finding. It is an open question at the moment of discharge, and an open question at the moment of discharge on a finding as significant as a white blood cell count of 19,000 with a left shift is a finding that the chart needs to account for, either by documenting the further workup performed, or by documenting the specific clinical reasoning that supported discharging the patient with the leukocytosis still unexplained, and the specific return precautions tied to that finding. That WBC count and uh differential supports a bacterial infection, and the obvious sources such as pneumonia and UTI were excluded in addition to cervical or deep neck infection, leaving one last source unexplored that could explain the symptom pattern. And a final takeaway point, uh drawn from the trial rather than the clinical record, is the one we walked through in detail earlier. Before trial, make sure your experts tell one story. Compare their opinions side by side on the core disputed facts. If they don't align, solve it in discovery. You heard what happens when you don't. Season five has walked through a single trial court record. The clinical presentation, the expert witness lineup, the trial, the post-trial proceedings, and the appeal. The teaching points we identified are drawn from the documentation reflected in that record. The chart of defense exists to help clinicians practice more defensibly by understanding how clinical decisions become legal evidence. I'll close the way I always do. The goal is to learn from these cases. They involve real patients and real clinical scenarios that any of us could face on any shift. We have to stay vigilant. Thank you for joining us. And if you find this content valuable, consider subscribing on Substack to support the work.

SPEAKER_02 32:27

This has been On the Record Season 5, Episode 3. The Chart of Defense is hosted by Michael Coleman, MD. Sources for this episode are listed in the show notes. The content is for educational purposes only. It is not legal advice, it is not medical advice. The content of On the Record is provided for educational purposes only. It is not legal advice, and it is not medical advice. Case facts, verdict information, and procedural history are drawn from publicly available court documents. Clinical roles, expert witnesses, and the venue of the proceedings are anonymized. The analysis and opinions presented represent my personal opinions and should not be taken as medical or legal factors.