What Do You Need to Prove Causation?

posted by Judge_Burke @ 18:47 PM
July 12, 2017

Allison H. Semaya recently posted on this topic in Expert Issues:

In the vast majority of jurisdictions, a plaintiff is required to offer expert testimony to establish the applicable standard of care and that the defendant’s alleged breach of that standard was the proximate cause of the plaintiff’s injuries. Although courts generally consider licensed physicians qualified to provide expert testimony regarding the proximate cause of a plaintiff’s alleged injuries, there is less of a consensus as to whether a nurse practitioner is equally as qualified. Recently, the Washington Supreme Court held that certain nurse practitioners may be qualified to testify as to whether medical conduct was the cause of the injuries in medical malpractice actions. See Rudy Frausto V. Yakima HMA, LLC, No. 93312-0 (Wash. Apr. 27, 2017) (en banc)

The Plaintiff, Rudy Frausto, a quadriplegic man, sustained pressure ulcers when the nurses at the medical facility where he was being treated for pneumonia allegedly failed to provide proper care. Id. at 2. Mr. Frausto filed suit against the medical provider, Yakima HMA LLC. Id. Defendant responded by moving for summary judgment, arguing that Plaintiff had failed to provide expert testimony as is required by statute when commencing a medical malpractice suit.  Id. In opposition, Plaintiff offered the sworn affidavit of Karen Wilkinson, an advanced registered nurse practitioner (“ARNP”) with more than 30 years of experience “providing direct patient care, serving as clinical nursing faculty for students providing care, and publishing nursing texts on the subject.” Id. Wilkinson stated that, in her professional medical opinion, the treating nurses breached applicable standards of care and that this breach proximately caused Plaintiff’s injuries. Id.

The trial court ruled that although Wilkinson was qualified as an expert with respect to the applicable standard of care, she was not qualified to testify as to the issue of proximate cause. Id. at 3. The appeals court reversed, finding that the expert testimony was allowed and adequate. Accordingly, the sole issue before the Supreme Court was whether ARNP’s are “per se disqualified from testifying on proximate cause in a medical negligence case.” Id.

Under Washington law, a plaintiff in a medical malpractice action is required to prove two key elements: “(1) that the defendant health care provider failed to exercise the standard of care of a reasonably prudent health care provider in that same profession and (2) that such failure was a proximate cause of the plaintiffs injuries.” Id. (citing RCW 7.70.040). In Washington, expert testimony is required to establish causation in all circumstances except where technical medical expertise is not necessary to assess the cause of the alleged injury. See id. (citing Young v. Key Pharm., Inc., 112 Wn.2d 216, 228, 770 P.2d 182 (1989)(for example, no expert is required in the case of “amputating the wrong limb or poking a patient in the eye while stitching a wound on the face”)). Washington Rules of Evidence Rule 702 (“ER 702”) states that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

In Frausto, the Court observed that a majority of jurisdictions permit testimony from nurses regarding causation in medical malpractice cases. The Court rejected Defendant’s argument that the Court should instead follow the few jurisdictions that do not allow such expert support, finding that Washington was different from those jurisdictions because: (1) its “nursing statutes differ from statutes in other states in that our legislature has empowered ARNPs to diagnose illnesses and injuries to at least a limited degree”; and (2) “the jurisdictions allowing nurses to testify on causation rely on ER 702 for the requisite qualification of experts and since an ARNP is qualified to independently diagnose a particular medical condition, “it follows that the ARNP may have the requisite expertise under ER 702 to discuss medical causation of that condition.” Id. at 8. In other words, the Court adopted the approach taken by the majority of jurisdictions and held that “ER 702 provides the appropriate mechanism for a trial court to determine whether an ARNP’s opinion on causation is sufficient based on the qualifications of the ARNP and the statutory scope of that ARNP’s authority and certification as a health care provider.” Id. at 17. As such, the Court ultimately concluded, “Whether or not an ARNP has the requisite specialized knowledge to qualify as an expert on causation is a determination left to the trial court under our Rules of Evidence, taking into consideration the ARNP’s particular scope of practice and expertise.” Id. at 19.

This unanimous opinion from the Washington Supreme Court that nurse practitioners may offer expert testimony as to the cause of an injury in medical malpractice suits is not only an important development for Washington litigants, but is also a useful reminder for litigants nationwide to evaluate which medical professionals may serve as experts and for what purpose in a medical malpractice lawsuit.


Just How Bad Can it Get?

posted by Judge_Burke @ 16:19 PM
July 11, 2017

For what seems like a long time, the California courts have struggled with budget problems. Courthouses were closed. The State Administrative office was reduced. And one would think that, with a reasonably healthy California state economy, the worst of those times has passed…but this is not so for the court in San Francisco:

The San Francisco Superior Court will furlough staff, cut clerk’s office hours and ask judges to donate one day of pay each month to help close a $5.3 million budget deficit.

Court workers will be furloughed one Friday each month, on a rotating schedule by department, starting Aug. 4 through June 2018. All clerks’ offices will close to the public at 1 p.m. on Fridays as of Sept. 1. Courtrooms will still remain operating on those days, although officials will adjust calendars to accommodate staff shortages.

“We are committed to keeping our courtrooms open and continuing to prioritize access to justice despite the 9 percent cut in our state funding allocation for the fiscal year that began” July 1, Presiding Judge Teri Jackson said in a prepared statement. “This contribution is a solution that will help us to avoid staff layoffs.”

Jackson has asked the court’s 52 judges to “consider a voluntary donation” of one day’s pay each month—about $509—to help close the funding gap.

The San Francisco Superior Court took the biggest hit of any county—from $56.9 million to $51.7 million, or about 9 percent—under the judiciary’s annual budget allocation system, known as the workload allocation funding methodology. Adopted in 2013, the formula attempts to equalize funding among courts throughout the state. It moves away from a system that doled out money based on what a court used to get under the old county-budgeting model and gives more funding to courts with higher caseloads. But it has also penalized courts that were historically well funded under county control. 


For the full story, go here.  


Justice at Stake Closes

posted by Judge_Burke @ 14:30 PM
July 10, 2017

Justice at Stake is closing its doors after 16 years of advocating for fair and impartial courts. There were a lot of dedicated people and organizations that were part of Justice at Stake, and none were more important to the success Justice at Stake had than the former director Bert Brandenburg. As the ABA recently reported:

Justice at Stake announced its shutdown in a press release. The group had depended on money from progressive foundations and individual donors, and donations were lagging, according to former executive director Susan Liss.

“It was just a confluence of circumstances that resulted in not having enough funds to continue,” Liss told the ABA Journal in an interview. “I think that all organizations are, for whatever reason, constantly scrambling.”

Some funders were pulling out of the court-independence field to focus on other priorities, Liss said. Yet Justice at Stake was embarking on a strategic growth plan to push for two priorities: encouraging states to adopt merit selection and to increase diversity on the courts. And some funders didn’t agree with merit selection as a policy, she said.

To implement its growth plan, Justice at Stake moved to larger quarters and began planning several large conferences, targeting five states where it hoped to have an impact as it also advocated at the national level. Fundraising did not keep up with the group’s ambitious vision, Liss said.

“It’s sort of not a story because it happens all the time,” Liss said of the group’s fundraising woes. “And it’s a terrible story when it happens to people I care about and issues I care about. … Sadly, there are a number of organizations that find themselves in this position. They have wonderful plans but they haven’t done sufficient fundraising to make those plans turn into a reality.”

Retired U.S. Supreme Court Justice Sandra Day O’Connor was the honorary chair of Justice at Stake from 2013 through 2016. In the press release, O’Connor said it was a pleasure to serve.

“Justice at Stake has done outstanding work on behalf of fair and impartial courts for many years, and has been a strong voice opposing the politicization of courts,” O’Connor said. “It is as true today as ever that organizations like Justice at Stake deserve public and philanthropic support so that we can continue to fight back against efforts to turn judges into politicians and state courts into magnets for campaign cash.

“Justice at Stake has brought these issues to the fore and has inspired people across the United States to fight for fair courts, and I will always be proud of the work we’ve done together.”


What Limits Can a Judge Put on Sex Offenders?

posted by Judge_Burke @ 14:54 PM
July 6, 2017

Setting reasonable conditions of probation is something judges do every day. Alcohol is a legal substance, yet telling a multiple drunk driving offender not to use alcohol is commonplace–but there are limits.

In State v. Franklin, 604 N.W.2d 79 (Minn. 2000), the Minnesota Supreme Court held that banning a defendant from an entire city was unreasonable. See also U.S. v. Mickelson, 433 F.3d 1050 (8th Cir. 2006).  So, what are the limits on conditions a judge may set for sex offenders?

Justice Kennedy delivered the opinion of the U.S. Supreme Court in Packingham v. North Carolina. 137 S.Ct. 1730 (2017). The Court held that the North Carolina statute, which makes it a felony for a registered sex offender “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages,” impermissibly restricts lawful speech in violation of the First Amendment. Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment. Justice Gorsuch did not participate. 


Just How Did All of This Start?

posted by Judge_Burke @ 16:09 PM
July 5, 2017

From the Marshall project, on an article in the Los Angeles Times:

Five sentences 101 words, and a tragically erroneous medical conclusion. A new report traces the origins of our opioid epidemic — at least 200,000 Americans have died from prescription drug overdoses — to a 1980 letter to the editor in the New England Journal of Medicine in which the authors concluded “that despite widespread use of narcotic drugs in hospitals, the development of addiction is rare in medical patients with no history of addiction.” The conclusion led to widespread prescriptions of painkillers we now know are highly addictive. 


A related article is here:  The other victims of the opioid epidemic


Can We Do Better With the Right to Counsel?

posted by Judge_Burke @ 15:04 PM
July 3, 2017

David Rossman (Boston University – School of Law) has posted Resurrecting Miranda’s Right to Counsel (97 B.U. Law Review 1127 (2017)) on SSRN.

Here is the abstract:

The regime created by Miranda v. Arizona is at this point in its history bankrupt both intellectually and in terms of practical effect. Justices who have joined the Court after Miranda have cut back its scope by stingy interpretations of the doctrine’s reach and effect. In practice, few suspects actually benefit from the way Miranda is now implemented in police stations and courtrooms. Given the failure of Miranda’s promise, can we envision an alternative? Here is one that may be politically palatable and doctrinally feasible, largely adopted from English practice:

1. Police would give the same Miranda warnings that they have always provided.

2. The police would still operate under the same rules governing the legitimacy of a suspect’s decision to talk in the absence of an attorney. The waiver rules for Miranda rights won’t change, in other words.

3. If the police go ahead and obtain a statement from a suspect without the presence of an attorney, the jury would be instructed that there is a policy in the jurisdiction that the police should not interrogate suspects in the absence of a defense attorney and that the jury may take into account in evaluating the credibility of the statement the fact that the police did not follow this policy.

4. If the police do provide an attorney for the suspect during interrogation, the suspect would be permitted to consult with the attorney and the attorney would be given a reasonable opportunity to advise the suspect during the interrogation.

5. If the suspect does not answer questions that are reasonable for someone in the suspect’s position at the time to respond to, that information would be admissible as substantive evidence of the suspect’s guilt, subject to a ruling on the probative value of the suspect’s silence at the time of trial.

6. If the suspect at trial maintains that his or her silence during the interrogation was based on the advice of the attorney, that claim shall constitute a waiver of the attorney client privilege insofar as it would otherwise protect the contents of the conversation between the suspect and the lawyer. This paper explores the feasibility of the most contestable of these proposals, the one dealing with an adverse inference from silence. It makes the case for viewing the privilege against self incrimination as a doctrine directed at prohibiting compulsion to speak rather than a broad guarantee of a right to silence.


Is the Job of a Judge to do Justice?

posted by Judge_Burke @ 14:30 PM
June 30, 2017

Anna Roberts (Seattle University School of Law) has posted Dismissals as Justice (Alabama Law Review, Forthcoming) on SSRN.

Here is the abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice. Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making. In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice. These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, the state’s role in and response to it, and possible responses other than the criminal law. There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.


Collecting Child Support

posted by Judge_Burke @ 14:47 PM
June 29, 2017

Governing Magazine reports:

Officials in Westchester County, N.Y., want to help low-income fathers who are behind in their child support payments.

“These guys aren’t deadbeats,” says Kevin McGuire, the county’s social services commissioner. “They’re dead broke.”

In a 2006 study of nine states, 70 percent of late child support payments were owed by parents who made no more than $10,000 a year. For these parents, the average child support obligation equaled about 83 percent of their reported income, according to the Urban Institute.

Once child support debt piles up, interest can be added to it every month it goes unpaid. For some, the punishment is jail, which further limits their ability to pay. Nationally, about a third of child support isn’t paid each year, and only 15 percent of related debt and interest gets collected.

In Westchester, officials see employment as the main solution for getting fathers to comply with child support orders. But job assistance programs alone hadn’t solved the problem in the past, and Joseph Kenner, the county’s deputy commissioner of social services, thought he knew why.

“What I felt was missing was some kind of carrot,” Kenner says.

In the county’s Responsible Employed Active Loving (R.E.A.L) Parenting Pilot for Stronger Families, the carrot is the opportunity for non-custodial parents to eliminate most of the debt they owe to the county government. (It does not, however, affect debt they owe to families.)

Here’s how the program works: The county Department of Social Services recruited 25 volunteers — unemployed fathers on public assistance who have child support debt anywhere from $2,000 to $80,000 — to take 40 hours of classes over 10 weeks. The classes cover a range of topics, from financial management to parenting to career counseling. At the end of the 40 hours, the county reduces participants’ debt by 25 percent. That’s the first carrot. 


For the full story, go here.


AJA Member in the News

posted by Judge_Burke @ 17:16 PM
June 27, 2017

AJA Past President Mike Cicconetti is again in the news (see this blog’s post dated June 20, 2017). Drunk driving kills a lot of people and causes a lot of damage. Innovative approaches toward reducing recidivism are an imperative, and not surprisingly, Judge Mike Cicconetti has an approach that might just work:  This Judge is Using a Phone App to Combat Drunk Driving




Judicial Wisdom from Judge Wayne Gorman

posted by Judge_Burke @ 16:59 PM
June 26, 2017

Being a trial judge sometimes can be a challenge. Managing our emotions can be challenging. Managing other people’s emotions presents another layer of challenge.

Sometimes we do things that are not intended or not carefully thought out. Judge Wayne Gorman shared a case which provides a summary of where any of us can get in trouble:

R. v. Murray, 2017 ONCA 393, May 17, 2017, at paragraph 94:

The principal types of intervention that attract appellate disapprobation include, but are not limited to:

i. questioning an accused or witnesses in such a way as to convey an impression that the judge aligns him or herself with the case for the Crown;

ii. questioning witnesses in such a way as to make it impossible for counsel to present the defence case;

iii. intervening to such an extent in the testimony of the accused that it prevents the accused from telling his or her story; and

iv. inviting the jury to disbelieve the accused or other defence witnesses.