GERRARD, J.
This case involves a failure to provide medical treatment. The treatment at issue is a very expensive drug that must be administered indefinitely. But it also may cause serious and even deadly symptoms if its administration is interrupted. In this case, the patient's treating physicians, wary of those health risks, decided not to administer the drug until the patient's insurer approved it or another source of payment could be found. But, regrettably, the patient died before either happened. The question presented in this appeal is whether under such circumstances, an expert medical witness is permitted to opine that under the customary standard of care, a physician should consider the health risks to a patient who may be unable to pay for continued treatment. We conclude that such testimony is admissible and, therefore, reverse the district court's order granting a new trial.
This is a medical malpractice case in which Robert Murray, individually and as special administrator of the estate of his wife, Mary K. Murray, alleges that the defendants caused the death of Mary by negligently failing to administer Flolan therapy to treat her pulmonary arterial hypertension. The defendants were the Nebraska Medical Center, the Board of Regents of the University of Nebraska, UNMC Physicians (UNMC), and several associated individual employees, although UNMC was the only defendant remaining by the time of trial.
Pulmonary arterial hypertension is a chronic medical condition in which the blood vessels in the lungs constrict, and
The course of treatment relevant to this case began in late June 2006, as Mary's treating physician, Austin Thompson, M.D., was preparing to treat Mary's pulmonary arterial hypertension with Flolan. On June 29, Mary underwent a heart catheterization to confirm her diagnosis and eligibility for Flolan; in fact, Thompson had already written the Flolan order before the catheterization, pending the results of the catheterization and insurance approval. The catheterization showed pulmonary arterial hypertension, significant heart failure, and reduced blood flow.
On July 4, 2006, Mary reported to the medical center with swollen legs and fluid around her heart. She was given diuretics and hospitalized until July 8. She was discharged and was supposed to begin Flolan after port placement the following week. But on July 10, she reported to the emergency room with a rapid heartbeat and shortness of breath. She began to seize, then her heartbeat stopped, and medical efforts failed to resuscitate her.
At trial, the parties disputed both the cause of Mary's death and whether UNMC had breached the standard of care. Robert presented expert medical testimony that the proximate cause of Mary's death was pulmonary arterial hypertension. UNMC, on the other hand, presented expert medical testimony that myocarditis, an inflammation of the heart usually caused by viral or bacterial infection, was a contributing factor to Mary's death—a conclusion with which Robert's experts disagreed. And Robert presented expert medical testimony that immediate Flolan administration, even a day or two before Mary's death, would have prevented her death; UNMC, on the other hand, presented expert medical testimony that Flolan would have made no difference.
Specifically, Robert's experts testified that Mary's pulmonary arterial hypertension was acute by June 29, 2006, based on the results of her heart catheterization, and that Flolan can be administered as an emergent treatment for acute pulmonary arterial hypertension. Robert adduced expert medical testimony that UNMC's treatment of Mary fell below the relevant standard of care after June 29, because the medical center should have paid for and provided Flolan by July 4 or 5—in other words, that the standard of care for a patient as sick as Mary was to start Flolan and obtain insurance approval afterward.
UNMC's witnesses, on the other hand, testified that Flolan was not effective as an emergent treatment, because it did not work immediately. And they testified that their practice was to wait for insurance
The UNMC attending physician during Mary's July 2006 hospitalization, James Murphy, M.D., explained that because Flolan treatment can last for years and require hundreds of thousands of dollars, it was important to make sure the treatment was sustainable before commencing. Thompson testified to "horror stories" about patients who had been forced to discontinue treatment, and he said it would be "irresponsible" not to have lifelong financial support for the drug, because it could be "devastating" if discontinued. Thompson said that the standard of care required such a process. And another of UNMC's experts, William Johnson, M.D., explained that the standard of care required finding some source of payment for a patient, but that if insurance was unavailable, it was still usually possible to find some other payment on a "compassionate need basis" within the 12-week timeframe that Johnson opined was appropriate for treatment of chronic pulmonary arterial hypertension.
Robert moved for a directed verdict on the standard of care, arguing that as a matter of law, insurance coverage cannot dictate what doctors do. UNMC replied that according to its experts, a continuing source for treatment is something that doctors should consider in determining how treatment is to be administered. Robert's motion was overruled. Robert also asked that the jury be instructed that if the standard of care requires prescription of a drug, it is not a defense to a claim the standard of care has been violated that the drug would not be provided until approved by an insurance carrier. That instruction was refused.
The jury returned a general verdict for UNMC. But Robert filed a motion for new trial that the district court granted. The court explained:
UNMC appeals from the order granting Robert's motion for new trial.
UNMC assigns that the court erred in granting Robert's motion for new trial.
A motion for new trial is addressed to the discretion of the trial court, whose decision will be upheld in the absence of an abuse of that discretion.
It is important, from the outset, to carefully note what issues this appeal does not present. This appeal arises against a backdrop of increasing concern about the costs of health care, among health care providers, insurers, government officials, and consumers. That concern has prompted a great deal of discussion, among commentators and in the public arena, about what should be done to control health care costs or to allocate potentially limited resources. As we will explain below, the question presented in this appeal is narrow and does not require us to address the more sweeping issues that are the subject of greater public policy debate. But some discussion of the broader picture will help us clarify what this case is about—or, more precisely, what it is not about.
In Nebraska, in cases arising (like this one) under the Nebraska Hospital-Medical Liability Act,
But "[b]ecause tort law expects physicians to provide the same standard of care regardless of patients' ability to pay, and because this standard sometimes encompasses costly technologies no longer readily available for the poorest citizens," physicians are "caught in a bind between legal expectations and economic realities."
It has been suggested that at a fundamental level, a unitary, wealth-blind standard of care cannot be reconciled with the growth of technology and the stratification of available health care. Custom is increasingly difficult to identify in today's medical marketplace, as resource distinctions produce fragmentation and disintegration.
On the other hand, it has been argued that permitting physicians to make medical decisions based on resource scarcity would compromise the fiduciary relationship between patient and physician, creating a conflict of interest because the patient's well-being would no longer be the physician's focus.
A physician's initial value judgment, in other words, is constrained by reason but does not include a societal interest in conserving costs or resources, and certainly does not include weighing the physician's own economic interests.
In short, the traditional ethical norms of the medical profession and the legal demands of the customary standard of care impose significant restrictions on a physician's ability to consider the costs of treatment, despite significant and increasing pressure to contain those costs. Whether the legal standard of care should change to alleviate that conflict, and how it might change, has been the subject of considerable discussion. It has been suggested that the customary standard of care could evolve to permit the denial of marginally beneficial treatment—in other words, when high costs would not be justified by minor expected benefits.
All of the concerns discussed above are serious, and they present difficult questions
Whether a medical standard of care can appropriately be premised on such a consideration is a matter of first impression in Nebraska, and the parties have not directed us to (nor are we aware of) any other authority speaking directly to that issue. But as a general matter, we have said that while the identification of the applicable standard of care is a question of law, the ultimate determination of whether a party deviated from the standard of care and was therefore negligent is a question of fact.
Malpractice, as alluded 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 like circumstances by members of his or her profession engaged in a similar practice in his or her or in similar localities.
The district court determined that it was. But the district court's reasoning was erroneous in three respects. First, the district court understood Johnson's testimony to concede that "if no outside funds were available to subsidize the treatment to a patient who needed it, then treatment would be provided on a `humanitarian' basis." The "substance of this concession," the court reasoned, "was that the treatment was required by the standard of care regardless of how it was to be paid for."
But that is not exactly what Johnson said. The import of Johnson's testimony, as revealed by the record, was that if a patient was unable to obtain insurance coverage for Flolan, it was Johnson's practice to try to work with the patient to find another way for the patient to get the drug on a "compassionate need" basis. Johnson's testimony in that regard was about his practice, not the general standard of care. Nor did Johnson testify that the
Second, the customary standard of care in this case is defined by statute, and it is not a court's place to contradict the Legislature on a matter of public policy.
Finally, and more fundamentally, the district court's concerns about health care policy, while understandable, are misplaced in a situation in which the patient's ability to continue to pay for treatment is still a medical consideration. In other words, even when the standard of care is limited to medical considerations relevant to the welfare of the patient, and not economic considerations relevant to the welfare of the health care provider,
This case does not involve a conflict of interest between the physician and patient—there was no evidence, for instance, of a financial incentive for UNMC's physicians to control costs.
As explained by Murphy, Thompson, and Johnson, the reason for waiting to begin Flolan until after insurance approval
And as noted above, Robert's witnesses were free to disagree with UNMC's witnesses; Robert could (and did) argue that the standard of care required more than UNMC's witnesses said it did. And the evidence might have supported the conclusion that given Mary's deteriorating condition, there was little risk in beginning Flolan even without a payment source in place. (Although we note, for the sake of completeness, that Johnson also testified that Mary's weakening condition militated against beginning Flolan on an emergent basis, because its side effects could have been deadly.)
In other words, the jury could have found that in this case, given the facts and testimony, the standard of care required Flolan to be administered immediately. But it was a question for the jury, and there was also competent evidence supporting a conclusion that the standard of care had not been breached. The court erred in concluding that it should have directed a verdict on the standard of care. And for that reason, the court abused its discretion in granting Robert's motion for new trial. UNMC's assignment of error has merit.
UNMC's evidence and opinion testimony reflect difficult medical decisions—but still medical decisions. Therefore, the scope of our holding is limited. We need not and do not decide whether the standard of care can or should incorporate considerations such as cost control or allocation of limited resources. Although the decision (or lack thereof) of a third-party payor contributed to the circumstances of this case, UNMC's decisions were still (according to its evidence) premised entirely upon the medical well-being of its patient. In a perfect world, difficult medical decisions like the one at issue in this case would be unnecessary. But we do not live in a perfect world, and we cannot say as a matter of law that UNMC's decisions in this case violated the standard of care.
For the foregoing reasons, the district court's order granting Robert's motion for new trial is reversed.
REVERSED.
WRIGHT and STEPHAN, JJ., not participating.