1. Introduction Rarely any physician intends to harm patients when he or she provides treatment to them. Patients see physicians and specialists in full faith that they will get help with a condition. What complicates the patient-doctor relationship is that the outcome of each patient’s treatment is different because of individual health conditions and the course of treatment chosen by the doctor. Problems arise when a patient is not satisfied with care provided by the doctor or in extreme cases when a patient dies.
Since most of the time it is hard to clearly determine whether the outcome was solely a result of the course of treatment chosen by the doctor or whether other factors played a role too, quite often patients take their grievances to court to seek justice. What makes these kind of cases complicated is the “What would have been if…? ” scenarios where one can only guess what the outcome of the treatment would have been had a different course of treatment been chosen because the proximate causes of injuries are not easy to determine.
Historically it has been the state legislature’s responsibility to establish, implement and regulate the medical tort system and laws and guidelines related to them (Conover, Zeitler, p. 1). There is, however, a potential hazard of the judiciary getting involved in establishing medical standards of care based on facts of a single case rather than on the standards of the profession (King, p. 1236-37). In a sense, the issue is approached from a semantic and factual rather than medical standpoint.
Helling v. Carey is a good example of such a case which excited considerable comment in the medical and legal fields. In the final analysis the case is considered unique and controversial mainly because the court dismissed the standards of medical profession and imposed its own standard in the field. Most states, however, have largely rejected the medical custom and have adopted the standard of a reasonably prudent physician.
Despite the fact that most commentators have agreed that the latter is a higher standard, courts hold that negligence cannot be pardoned only because other physicians act similarly: a reasonable and prudent standard of care is to be followed. One of the strongest arguments used by the defendants in the course of the lawsuit was that patients under forty were not routinely given an eye pressure tests at the time because the incidence of glaucoma in this age group was very unlikely (about one in 25,000 by some estimates).
An eye pressure test, which is essentially a tiny puff of air delivered at the eye, is far from perfect: it produces a certain number of false positive results and it can also be injurious (Charfoos, p. 697). Shortly after the Supreme Court’s ruling for the plaintiff an ophthalmologist published his opinion regarding the tonometer test stating that despite the fact that the test was in itself simple and usually harmless, there were instances where it was not easy to get accurate results and even that the test itself could result in injury to the cornea of the eye (Charfoos, p.697).
This became problematic because it was unclear whether the test should be given routinely even if there were no symptoms of glaucoma and would it be considered an unnecessary treatment or whether physicians would be liable if there was an injury to the patient’s eye as a result of the test. As mentioned earlier, it has been largely agreed that the court erred in its decision in Helling as discussed below. 2. Brief description of the stages of the lawsuit.
Plaintiff Barbara Helling visited her eye defendant ophthalmologists for her condition of myopia (nearsightedness) and was fitted with contact lenses. She consulted them again over the course of several years with complaints about irritation in her eyes caused by the contact lenses at which time the doctors did not administer an eye pressure test. She visited them again later and on this occasion an eye pressure and visual field tests were administered and she was diagnosed with advanced glaucoma.
At this time she had sustained irreparable damage to her vision. Mrs. Helling filed a lawsuit against her ophthalmologist but during the trial the court ruled in favor of the defendants arguing that in ophthalmology it was not a standard of profession to perform routine glaucoma tests in patients under forty years of age. It is important to note here that the standards of the profession did require performing pressure tests if the patient’s complaints and symptoms indicated that the patient may be suffering from glaucoma.
The defendants’ argument was that the test was given thirty days after the patients first complained of visual field problems. The jury decided in favor of the defendants and the court ruled accordingly. The Court of Appeals affirmed the lower court’s decision at which point the plaintiff petitioned for a review of the case. On appeal the Supreme Court of Washington reversed the judgment and ruled for the plaintiff stating that the defendants were negligent in not having administered the test at a time when the disease could have been prevented (LexisNexis, Helling v.
Carey). The court’s decision was largely based on the argument that the test was simple and inexpensive and should have been administered considering the severity of the injury that resulted from the failure to give it. As suggested by Meltzer in the New England Law Review, two explanations to the decision in Helling are possible. First, that the court intended to abrogate the privilege of the medical profession to set its own standards. Second, that the court intended to create a new exception to the medical malpractice standard (Meltzer, p. 306).
Perhaps, the first explanation seems more likely given the circumstances of Helling where liability was imposed absent of fault. The decision in the Helling case has had overall negative reviews and is not popular among most legal scholars and law professionals. In essence, by using the concept of “reasonable prudence” the court held that it requires a standard of care that was higher than that actually practiced by the profession (J. Stuart Showalter, p. 87). Even in Washington Helling is considered an exceptional circumstance and the Washington state legislature later enacted a statute to overturn it (Kelly, Manguno-Mire, p.
2). Subsequently, most courts have rejected the case holdings relying on the professional custom model in establishing the standard of care instead (Jacobson, Kanna, p. 13). 3. A discussion of several cases involving alleged negligence is due to help to understand the context and the decision in Helling. a) The T. J. Hooper The decision in the Helling case was greatly influenced by Judge L. Hand’s writing in the landmark T. J. Hooper case decision. The T. J. Hooper dealt with negligence and standard of care in admiralty.
The owners of the tugboats were found guilty of negligence for not having radios installed on the tugboats, which resulted in them being unable to foresee a storm and the barges sunk. Here, again, the question revolves around what was done and what should have been done. Ruling in favor of the barge owners Judge Learned Hand indicated that the his decision was made not because the tugboat owners were not equipped with radios, since it was not customary at the time, but because it was reasonable for the tugs to have radios as the practice would be considered safe and reasonable (LexisNexis, T. J. Hooper).
What makes the T. J. Hooper case even more important is that Judge Hand proposed a formula for “calculating negligence” according to which if the cost of the burden of adequate precautions is greater than the cost of the injury multiplied by the possibility of occurrence, then the defendant may have met the standard of care. And if the cost of the burden is less than cost of injury multiplied by the probability of occurrence, then the defendant is guilty of negligence for not having met the standard of care. This formula is also known as the calculus of negligence (Grossman, Cearley, Cole, line 8).
However, there is danger of making the meaning of reasonable prudence too broad: how can it be defined what potential risks exist in admiralty, medicine or any other industry that can be prevented by reasonable precautions? Will a doctor be held liable for not giving numerous diagnostic tests to all patients as simple and as non-expensive they may be even if the patients have minor complaints? Would neurosurgeons be considered negligent if they did not perform brain scans on every patient that complains about headaches, because a scan could detect certain brain tumors (Charfoos, p.
696)? The ultimate question regarding reasonable prudence is: where does it stop and does it have a well-defined scope? In his argument to address the question how negligence should be determined Richard Epstein, a law professor at New York University School of Law suggests two approaches that ultimately converge and help come to a conclusion. Firstly, it has to be determined whether the defendant took all cost-justified measures to prevent the potential damage or harm. On the other hand, it is vital to establish whether the standards of care have been met.
Epstein specifies that the standard in question is that of the trade or industry rather than of an individual company. (Epstein, p. 1-2). Interestingly, as Lawrence S. Charfoos, an attorney at a Detroit based law firm wrote in his article about the case, Barbara Helling did not request that the case be decided on the basis of negligence of an entire medical specialty but only of her doctors (Charfoos, p. 698). The question at hand is whether Judge Hand’s “calculus of negligence” can be applied to the Helling case.
Or in other words, is there a way to determine whether the cost of burden to give an eye pressure test was greater or smaller than the damages suffered by Barbara Helling? Can such values as a person’s health be quantified and compared to costs? b) Johnston v. St. Francis Medical Center This is a more recent case that is somewhat similar to Helling in that it also closely deals with concept of standard of care. A patient’s wife and children sued doctors and hospital for negligence in their failure to diagnose the decedent’s abdominal aortic aneurysm (LexisNexis, Johnston v. St. Francis Medical Center).
In their claim the plaintiffs argued that the doctors acted negligently in not interpreting the x-ray images correctly and misdiagnosing the patient’s condition. Several expert witnesses agreed that the defendants met the necessary standard of care while one expert witness found that the doctors failed to meet it. Perhaps the most relevant detail to mention in this discussion is that in contrast to Helling’s condition, diagnosing Johnston’s of aneurysm was “possible” but difficult enough that missing the diagnosis did not amount to not providing the standard of care (Moffett, Moore, n/p).
In Helling, it was argued that a simple tonometry test would have helped discover glaucoma. In Johnston the patient complained of abdominal pain; according to one of the defendants, Dr. Eldridge, strong back pain is more indicative of aneurysm than abdominal pain which made it harder to diagnose the condition. The court ruled in favor of the defendants in Johnston and the Court of Appeals affirmed. If one followed the same logic used in Helling, it can be argued is that reasonable prudence would have required Dr. Eldridge to call a radiologist to interpret the x-rays.
This could have saved the patient’s life. Consequently, it would be harder to prove that the standard of care was met by the doctors. Additionally, knowing that aneurysm was a common condition in aging population should have served as a red flag for the physicians to take further action and administer more tests in a timely manner (LexisNexis, Johnston v. St. Francis Medical Center). Also, using the same rationale, one can say that Barbara Helling’s complaints could be attributed to contact lenses which she was using at the time.
And the opthalmologists could argue that the discomfort from using contact lenses combined with the rare incidence of glaucoma in persons under the age of 40 largely impacted the diagnosis and hence the notion of reasonable prudence should not apply. There seems to be a great deal of inconsistency between the reasoning in the two cases. Also inconsistent is that several expert witnesses testified in Johnston and their testimony had an important influence on the outcome of the case while the court didn’t seem to need any experts while making a decision in Helling.
For these reasons the Supreme Court of Washington should have affirmed the lower courts’ decisions and rule in favor of the defendants. c) Harris v. Groth Harris is yet another medical malpractice case where the patient sought action against her physician for not administering the eye pressure test and not detecting her glaucoma in a timely manner which would have prevented her from loss of vision (Ms. Harris’s lawsuit also included another defendant, a pharmacist, but in this paper the focus is on matters related to tonometry tests).
The major difference between the conditions of the two plaintiffs, Helling and Harris is that Mrs Harris suffered from closed angle glaucoma in which eye pressure can rise very quickly with crisis occurring in a matter of hours. The trial court ruled that Dr. Groth was not negligent in not detecting the patient’s glaucoma. The Court of Appeals and the Supreme Court affirmed the judgment. There are parallel lines in the Helling and Harris cases: first, both patients claim that their glaucoma resulted from the physicians’ negligence.
Second, and perhaps more important for the sake of the argument in this paper, the cases dealt with standards of care and the concept of reasonable prudence. In the Harris case the court concluded that, “Absent exceptional circumstances such as were present in Helling, expert testimony will be necessary to show whether or not a particular practice is reasonably prudent. It will also usually be necessary to prove causation. This expert testimony may be provided by non-physicians, however, if the trial court finds them qualified. The possession of a license to practice medicine, while important, is only one factor to be considered” (Utter, p7).
One can’t help wondering what exactly the court referred to by “exceptional circumstances” and how those circumstances eliminated the need for expert testimony in the Helling case. In Harris, however, there were expert witnesses from both the plaintiff’s and defendant’s side whose testimony was essential to make a decision. Assuming arguendo that Ms. Harris was under 40 at the time of her visits to the doctor’s office and suffered from closed angle glaucoma, one would expect the justices to rule differently – according to Helling the doctors would have been required to give the test.
And the fact that they didn’t do so should constitute negligence. Hence, the defendants would be found liable for not administering the test regardless whether that could have prevented this fast acting type of glaucoma or not! Apparently there is a contradiction in the ambiguous wording of the decisions which are subject to different interpretations. In fact, as an article about the Helling case in Willamette Law Journal discusses, the decision in Helling is rather an exception to the general rule (Hamilton, p. 157).
It did not have a legal precedent and the justices acted basing their ruling on the peculiar facts of the case and not the standards of care in the medical field. As Hamilton suggests, the court’s view of the case was that of fashioning remedy for a “legally blind” young woman (Hamilton, p. 154). d) Gates v. Jensen This is also a relevant case where the patient sought action against her ophthalmologists for not detecting her glaucoma with a major difference to Helling: here the defendants did perform the eye pressure test which showed a borderline result.
Both the trial court and the Court of Appeals ruled for the defendants. The Supreme Court, however, reversed the judgment in favor of the plaintiff once again relying on the doctrine of reasonable prudence rather than on clinical practice guidelines. Justices stated that the doctors had additional tests at their disposal to properly diagnose glaucoma which they didn’t’ use. The importance of including Gates in this argument lies in the fact that despite that the defendants gave an eye pressure test to the patient but still did not detect her condition, they were held liable for not using reasonable prudence.
Judge Horowitz of The Supreme Court of Washington held that “…Doctrine that reasonable prudence may require a standard of practice which is higher than that exercised by relevant professional community was applicable to ophthalmologist, and thus and thus where risk of glaucoma was high and pressure tests arguably inconclusive, reasonable prudence required that ophthalmologist dilate pupils of patient for better view of optic nerve disc and administer a visual field examination, and such doctrine was not. brogated by statute requiring physician to exercise this skill, care and learning possessed by others in same profession”(Horowitz, p. 3).
Judge Hicks concurred while Judge Dolliver concurred in part and dissented in part with this opinion. It is worth mentioning here that like in Helling, the ruling of this case was not popular and did not have many followers. 4. Conclusion The court’s decision to rule in favor of the plaintiff in Helling created a feeling of uncertainty and ambiguity as to what clinical practice guidelines were and whether they were defined by the medical profession or the judicial system.
The most troubling fact discussed in this paper is that the courts found that there were further steps the healthcare provider could have taken to correctly diagnose a condition. Again, a question similar to those asked above arises: can a professional in any industry know where the standards of care stop and reasonable prudence begin? There are infinite tests one can perform to detect signs of various diseases but it sounds more like preventive care on a large scale and not a very cost-effective one.
It certainly does have its benefits but this is an issue that should be decided on a higher nationwide level and not on a case-to-case basis when dissatisfied patients sue their physicians. Taking the argument further one can question what would have happened had the eye pressure or any additional test been given to the patients. Is there a guarantee that by giving the test the doctors could have prevented glaucoma in either case? The answer is no. Every case is individual and no one can state with certainty what could have happened if the treatment took another course. In Helling v. Carey the court erred on more than one dimension.
Its decision undermined the public trust in the medical profession. Although intended to encourage preventive care, it actually increased the cost of care without showing positive results in occurrence of glaucoma. It punished physicians who did not act negligently and simply followed the customary standards of care in their profession. It also used its own calculations and the concept of reasonable prudence to change the standard of care in ophthalmology, therefore showing that the court reserved the ultimate right to change the law in the medical profession (Hamilton, p. 157). Judge Utter, together with other justices ruled in Helling that reasonable prudence may require a standard of care higher than that actually practiced by the profession.
However, the terms specialist or a practicing specialist or a professional implies that those individuals already do possess the necessary skills expected by the society. In Gates the court noted that the original bill had used the word “practiced” rather than “possessed” after the Washington legislature changed the bill (J. Stuart Showalter, p. 87). This implies that simply possessing a skill does not make it a required part of standard of care being actually practiced by the profession.
Based on the decisions in Gates and Helling, one can conclude as Charfoos suggests, that if a patient visits an eye doctor on a regular basis, the doctor, by accepting the patient, in effect, guarantees that the patient will not suffer loss of vision from open angle glaucoma. The court’s decisions means that damage from open angle glaucoma is entirely avoidable, although medical science says otherwise (Charfoos, p. 700). As mentioned above, each patient is different and each condition takes its individual form and path and there can be no guarantees that physicians can prevent them by practicing reasonable prudence.
One may argue that by holding the defendants liable was a step in the right direction in that it served as counterweight to the medical profession’s privilege to set its own standards (Charfoos, p. 695). And by this rationale it can also be argued that by punishing the physicians in these cases the courts are enforcing the medical tort system which is meant to protect patients as well as serve as insurance of proper medical conduct. In a sense, if one looks solely at the facts of Helling and Gates, and other cases of similar nature, it seems fair that patients received some compensation for the damage they suffer.
These decisions, as applications of medical tort system will serve as reminders for doctors of virtually all specialties to remain alert and ensure high quality of care. However, a counterargument is in place: the medical profession historically has intended to cure and help people and not to harm them. This is its primary purpose. By applying more pressure on physicians, the courts do not guarantee that the quality of care will rise. Neither does it help in bringing healthcare costs down by enforcing preventive care. In fact they tend to prove the opposite.
As Clay Kelly and Gina Manguno-Mire, a medical doctor and a doctor of philosophy respectively, state in their commentary to Helling, even though ophthalmologists nationwide changed their practice pattern in giving tonometry test after the Helling case, subsequent research has shown that there has been an increase in the cost of care without an actual reduction in morbidity (Kelly, Manguno-Mire, p. 2). In a sense, decisions like this tend to primarily punish physicians rather than protecting patients. Helling is a case with negligence without fault.
The courts found that the medical profession was faulty and individual doctors suffered the consequences of that. Without advanced knowledge in the medical field it was an error to enforce changes to the customary standard of care by the courts. After all, people visit a doctor and not a judge when they have health problems.
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The Accepted Practice Formula. Vanderbilt Law Review, Volume 28, Issue 6 (November 1975), pp. 1213-1276, available at http://proxy. ulib. csuohio. edu:2209/HOL/Page? handle=hein. journals/vanlr28&collection=journals&set_as_cursor=4&men_tab=srchresults1263&id=1263 4. Charfoos, L. S. : Helling: The Law of Medical Malpractice Rewritten. Ohio Northern University Law Review, Volume 2, Issue 4 (1975), pp. 692-703, available at http://proxy. ulib. csuohio. edu:2211/HOL/Page? handle=hein.journals/onulr2&collection=journals&set_as_cursor=9&men_tab=srchresults&type=matchall694&id=694 HeinOnline, CSU Ohio Law Library 5.
Lexis Nexis, Helling v. Carey. No. 42775, SUPREME COURT OF WASHINGTON 83 Wn. 2d 514; 519 P. 2d 981; 1974 Wash. LEXIS 928; 67 A. L. R. 3d 175 6. Meltzer, Neil: Helling v. Carey: Landmark or Exception in Medical Malpractice; Compliance with the Medical Standard of Care May Not Protect the Specialist form Liability. New England Law Review, Volume 11, Issue 1(Fall 1975), pp. 301 – 312, available at http://proxy. ulib. csuohio. edu:2211/HOL/LuceneSearch?terms=helling+carey+landmark+or+exception&collection=journals&searchtype=advanced&other_cols=yes&submit=Go&x=0&y=0 HeinOnline, CSU Ohio Law Library.
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2d 671; 2001 Louisiana, available at http://proxy. ulib. csuohio. edu:2259/hottopics/lnacademic 15. Judge Utter, Supreme Court Of Washington: Harris v. Groth 99 Wn. 2d 438 (1983); 663 P. 2d 113, available at http://www. leagle. com/xmlResult. aspx? page=1&xmldoc=198353799Wn2d438_1498. xml&docbase=CSLWAR1-1950-1985&SizeDisp=7 16. Hamilton, Steven E. : Helling v. Carey: Medical Malpractice Standard of Care Determined by Court. Willamette Law Journal, Volume 11, Issue 1 (Winter 1974), pp. 152-158, available at http://proxy. ulib. csuohio. edu:2211/HOL/Page? handle=hein. journals/willr11&coll.