A recent appellate decision provides a cautionary tale on how the courts may view a physician’s actions as self-serving — and thus not deserving the legal protections afforded to actual health care.
Plaintiff Yun Hee So underwent a dilation and curettage following a miscarriage. In her lawsuit, she alleged that she awoke during the procedure and that she later spoke to Dr. Sook Ja Shin, her anesthesiologist, in the recovery room. When Ms. So asked Dr. Shin why she woke up during the procedure, she alleged that Dr. Shin became visibly upset and raised her voice.
(As with many appellate decisions, the scenario under review uses allegations made by the plaintiff at the initial pleading stage. They have not been proven nor has the defendant physician yet given her side of the story.)
The plaintiff alleged that Dr. Shin showed her a container and, still visibly angry and in a loud voice, “stated words to the effect that plaintiff could see that it was only blood which was suctioned therefore, there could not have been any pain.” The plaintiff claimed that Dr. Shin came within a few inches of her and motioned as though she would drop the container in plaintiff’s lap. Plaintiff then realized that the contents of the container were her own blood and possible body parts of the fetus.
The plaintiff also claimed that despite her screams for the doctor to leave, Dr. Shin touched her and asked her “to keep quiet about what had just happened and not to discuss the situation with the hospital.”
Just short of two years later, Ms. So filed a lawsuit against Dr. Shin for negligence, intentional infliction of emotional distress, and assault and battery. The focus of the appellate opinion was on plaintiff’s decision to allege ordinary negligence, rather than medical professional negligence.
Under the Medical Injury Compensation Reform Act (MICRA), a medical liability suit must be brought within one year of a plaintiff’s knowledge of an injury. Here, plaintiff’s suit was long past the one-year statute of limitations for medical professional negligence, but within the two-year window for an ordinary negligence claim.
In seeking to have the case shut down, Dr. Shin’s counsel argued that all of the alleged activity occurred during the performance of professional services and that the lawsuit was thus time-barred. Defense counsel also pointed out that even if the allegations were true, Dr. Shin was simply trying to soothe the patient’s pain, not to inflict emotional distress or commit an assault. The trial court judge accepted the defense arguments and dismissed the case, prompting a review by the Los Angeles-based Second District Court of Appeal in Yun Hee So v. Sook Ja Shin, et al.
Key to the appellate court’s decision to revive the case was plaintiff’s claim that Dr. Shin’s purpose was to persuade the plaintiff not to report to the hospital or to the medical group that she woke up during surgery. Thus, she claimed, Dr. Shin acted for a personal benefit of avoiding discipline, not for her wellbeing as the patient.
The Court of Appeal noted that a provider may engage in a range of activities while delivering medical care and gave the example of an X-ray technician’s manipulating a table, activating the X-ray machine, removing photographic plates, and assisting the patient from the table. “Some of those tasks may require a high degree of skill and judgment,” the court said, quoting from previous cases. “But others do not. Each, however, is an integral part of the professional services being rendered.”
But the Court of Appeal said that it could not characterize all of Dr. Shin’s actions as medical care simply because they would not have taken place but for the surgical procedure. “If that were the test, almost any interaction between doctor and patient — even such actions as placing threatening phone calls to a patient about unpaid medical bills, or a sexual assault — could be classified as professional negligence. We do not so conclude.”
Absent intervention by the state Supreme Court, the Court of Appeal’s decision to allow the lawsuit to go forward gives the plaintiff the chance to convince a jury that the events really occurred as she claimed.
That would be no ordinary trial.
Author Gordon Ownby is General Counsel for the Cooperative of American Physicians, Inc. (CAP).
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