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Murray v. UNMC Physicians

Citation. Murray v. UNMC Physicians, 282 Neb. 260, 806 N.W.2d 118, 2011)
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Brief Fact Summary.

Robert Murray (Robert) (Plaintiff), individually and as special administrator of the estate of his wife, Mary K. Murray (Mary) (Plaintiff), brought suit against the Nebraska Medical Center, the Board of Regents of the University of Nebraska, UNMC Physicians (UNMC) (Defendant) and others claiming Mary’s (Plaintiff) death was caused by their negligent failure to administer an expensive drug until the patient’s insurer approved the drug or another source of payment could be obtained.

Synopsis of Rule of Law.

Under the customary standard of care, an expert medical witness may offer an opinion that a doctor should consider the health risks to a patient who may not be able to pay for ongoing treatment.


Robert Murray (Robert) (Plaintiff), individually and as special administrator of the estate of his wife, Mary K. Murray (Mary) (Plaintiff), brought suit against the Nebraska Medical Center, the Board of Regents of the University of Nebraska, UNMC Physicians (UNMC) (Defendant) and others claiming Mary’s (Plaintiff) death was caused by their negligent failure to treat her pulmonary arterial hypertension with the administration of Flolan therapy.  Pulmonary arterial hypertension is a chronic medical condition where blood vessels in the lungs constrict causing pressure on the heart that leads to heart failure.  Flolan is a vasodilator that relaxes blood vessels and prevents blood clotting.  Flolan is short acting and very expensive, so patients on Flolan treatment need a constant supply of the drug, because if it stops being administered, pulmonary blood pressure rebounds and can be life threatening.  Because Flolan is a chronic treatment, patients who start Flolan basically need to stay on it for the rest of their lives.  It must be administered 24 hours a day and costs approximately $100,000.00 per year.
  Mary’s (Plaintiff) treating doctor was preparing to treat her pulmonary arterial hypertension with Flolan.  Plaintiff underwent a heart catheterization to confirm her diagnosis and eligibility for Flolan.  Her doctor had written the Flolan order before the catheterization, pending results of the catheterization and insurance approval.  The catheterization showed pulmonary arterial hypertension, significant heart failure, and reduced blood flow.  After another hospitalization, Plaintiff was discharged and was going to begin Flolan.  However, Plaintiff went back to the emergency room with shortness of breath and a rapid heartbeat.  She then began to have a seizure and died.
  At trial, the parties argued both the cause of Plaintiff’s death and whether the standard of care had been breached by Defendant.  Plaintiff’s medical expert presented testimony that Mary’s proximate cause of death was pulmonary arterial hypertension and that the immediate administration of Flolan, even a day or two before Plaintiff’s death, would have prevented her death.  Defendant presented expert testimony that Flolan would not have made a difference.
  The Defendant’s attending physician during Plaintiff’s hospital stay explained that because Flolan treatment can last for years and costs hundreds of thousands of dollars, it was important to make sure the treatment would be continued before even beginning.  There was testimony from another doctor of “horror stories” about patients who were forced to discontinue treatment and, he said it would be “irresponsible” not to have lifelong financial support for the drug which could be “devastating” if stopped.  The doctor testified the process is required by the standard of care.  Another doctor explained that the standard of care required obtaining a source of payment for a patient, but that if insurance was not available, another form of payment could usually be found on a “compassionate need basis.”
  In Plaintiff’s motion for a directed verdict on the standard of care, he argued that insurance, as a matter of law, could not dictate what doctors do, but he was overruled.  Plaintiff requested a jury instruction that it is not a defense to a claim that the standard of care has been violated, that a drug would not be provided unless it were approved by an insurer.  The request for jury instruction was rejected.  At the time of the jury verdict for Defendant, Plaintiff’s motion for a new trial was granted and Defendant appealed.


Under the customary standard of care, may an expert medical witness offer an opinion that a doctor should consider the health risks to a patient who may not be able to pay for ongoing treatment?


(Gerrard, J.)  Yes.  Under the customary standard of care, an expert medical witness may offer an opinion that a doctor should consider the health risks to a patient who may not be able to pay for ongoing treatment.  This case involves a failure to provide medical treatment.  The treatment at issue is an extremely expensive drug that must be administered indefinitely.  If the administration is interrupted, serious and even deadly symptoms can occur.  In this case, the doctors treating the patient were wary of those health risks and decided not to administer the drug until it was approved by the patient’s insurer or another payment source could be obtained.  Regrettably, however, the patient died before either occurred.  The question the appeal presented is whether in such circumstances, an expert medical witness is allowed to present his opinion that under the customary standard of care, a physician should consider the risk to a patient’s health if the patient may not be able to pay for ongoing treatment.  Testimony such as this is admissible and the order of the district court granting a new trial is therefore reversed.
  It is important from the beginning to carefully note the issues that are not presented in this appeal.  This appeal came up against a present state of increasing concern regarding health care costs among health care providers, insurers, government officials, and consumers.  Over that concern, a great deal of discussion has occurred among commentators and the public regarding controlling the costs of health care or to decide how potentially limited resources will be designated.  The question is narrow and does not require the court to address the more sweeping issues that are the subject of greater debate on public policy.  However, some discussion of the bigger picture will help to clarify what this case is about, or rather, what it is not about.
  This state defines the standard of reasonable and ordinary care as “that which health care providers, in the same community or in similar communities and engaged in the same or similar lines of work, would ordinarily exercise and devote to the benefit of their patients under like circumstances.”  That standard is consistent with the general common-law rule and is a so-called unitary, or wealth-blind, standard of care.  In other words, the standard of care is found in the usual practices established among reasonable and prudent physicians and must not be compromised just because a patient cannot afford to pay.  However, that standard of care developed in a world of fee-for-service medicine and persisted while health insurance still primarily provided first-dollar unlimited coverage.  Today, increasingly strict controls are being placed on health care resources by health plans and self-insured corporations which limit doctors’ freedom to practice medicine as they see fit.  Clinical guidelines have proliferated from many various sources:  managed care organizations, medical subspecialty societies, malpractice insurers, entrepreneurial guideline-writing firms, and others.  Each guideline professes to advise physicians of the best way to practice.  Yet they often conflict with each other, with traditional patterns of practice, and with the expectations of patients.
  Doctors are caught in a bind between legal expectations and economic realities because tort law expects doctors to provide the same standard of care regardless of the patients’ ability to pay, and the standard includes costly technologies that are no longer readily available for the poorest citizens.  Courts have been accused of being oblivious to the costs of care, basically requiring doctors to take resources that may belong to other parties, regardless of whether those other parties owe these resources to the patient.  It is suggested at a basic level that a unitary, wealth-blind standard of care cannot be reconciled with the growth of technology and the segmentation of available health care.  However, it has also been argued that allowing doctors to make medical decisions based on scare resources would compromise the fiduciary relationship between patient and physician, and because the patient’s well-being would no longer be the focus of the physician, it would create a conflict of interest.
  The question is how the value judgments inherent in the development of the standard of care might grow in response to an interest by society to control health care costs.  It has been explained that in treating a patient, a physician’s initial value judgment is made in light of conclusions reached about the likely benefits that services would have had for the plaintiff patient.  It involves an evaluation regarding whether the services should have been provided due to the likely benefits, the risk of iatrogenic harm, and the seriousness of the problem the patient was experiencing.  In other words, a physician’s initial value judgment is constrained by reason but does not include conserving costs or resources in the interest of society, and definitely does not include weighing the physician’s own economic interests.  Basically, significant restrictions on the doctor’s ability to consider costs for the patient’s treatment are imposed on doctors by what is traditionally ethically moral in the medical profession and the legal demands of the customary standard of care, in spite of significant and increasing pressure to contain those costs.
  The Defendant’s evidence was that it was not an economic decision to wait to begin the Flolan treatment—it was a medical decision, based on consequences to the patient’s health if the treatment were started and then stopped.  Malpractice, as referred to above, is defined as a health care provider’s failure to use the ordinary and reasonable care, skill, and knowledge ordinarily possessed and used under similar circumstances by members of his or her profession engaged in a similar practice in his or her or in similar localities.  A new trial was granted by the district court based on its conclusion that Defendant’s expert testimony was not consistent with the standard of care.  The reasoning of the district court was wrong in three respects.
  First, the district court interpreted the testimony of the doctor to mean that if outside funds were not available to subsidize the treatment to a patient who needed it, then treatment would be provided on a “humanitarian” basis.  The court reasoned that the substance of this concession was that the standard of care required the treatment regardless of how the costs would be covered.  However, the doctor did not say this.  His testimony was about his practice, not about the general standard of care.  He also did not testify that the drug would be started regardless—he simply said that if insurance coverage was not available, he would try to find some other way to get the medication for the patient.  Nothing in this testimony contradicts his basic opinion that the standard of care requires that a doctor make sure a payment source is in place before beginning Flolan treatment due to the risks to patient’s health if treatment is interrupted.
  Second, on a matter of public policy, it is not the place of the court to contradict legislation.  Witnesses for the Defendant testified that Plaintiff’s treatment was consistent with the statutory standard of care—in other words, treatment with Flolan would usually be deferred by health care providers in the same or similar communities and engaged in the same or similar employment until payment was secured for a continuous supply of Flolan treatment.  Of course, Plaintiff was free to argue and present evidence to the jury that Defendant’s experts were wrong in their opinion regarding customary practice.
  Finally, and more fundamentally, the district court’s concerns about health care policy are understandable, but are misplaced in a situation where the patient’s ability to continue to pay for treatment is still a medical consideration.  In other words, even in cases where the standard of care is limited to relevant medical considerations regarding the patient’s welfare, and not economic considerations relevant to the welfare of the health care provider, the standard of care the Defendant’s witnesses articulated in this case was still consistent with a medical standard of care.
  There is no conflict of interest involved in this case between the doctor and the patient.  There was no evidence of a financial incentive for Defendant’s physicians to control costs.  The Defendant’s doctors were comparing the risk to Plaintiff’s health by delaying the treatment to the risk of interrupting the treatment once started.  In other words, the doctor did not in this case refuse to provide beneficial care, rather he determined the care would not be beneficial if started and then later interrupted.  It could, in fact, be deadly.
  Defendant’s evidence and opinion testimony present difficult medical decisions—but still medical decisions.  The scope of our holding is therefore limited.  The decisions of Defendant, according to evidence, were based entirely upon the medical well-being of the patient.  Unfortunately, difficult medical decisions such as the one in this case are necessary.  The Court cannot say as a matter of law that Defendant’s decisions violated the standard of care in this case.  Reversed. 


The holding of the court in the Murray case is troubling in that an expert medical witness is permitted to testify that the financial situation of a patient is part of the evaluation of the standard of care.  Some would consider this a distinction with no meaning because of the general wealthblind approach to treating all patients in similar circumstances the same.  The Defendant’s doctor’s concern to stop and consider her ability to pay is not consistent with the testimony that regardless of the Plaintiff’s insurance coverage, payment for the necessary and possibly life-saving drug would have been found.  Perhaps the real focus was indicated by the court, that the decision to allow expert testimony should have been made and the ultimate verdict of the jury was not to be disturbed.

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