Question: A patient developed postoperative paralytic ileus with intractable vomiting. The attending doctor inserted a nasogastric tube and administered intravenous fluids in the form of 5% dextrose in water. The patient died 6 days later from hypovolemic shock and cardiac arrhythmias. Serum electrolytes were not measured until the last day, when severe hyponatremia and hypokalemia became evident. A lawsuit for wrongful death alleged gross negligence and sought punitive damages, but no expert witness was called to testify. Which of the following best describes the situation?
A. This is a clear case of gross negligence, a standard of care so low as to shock the conscience.
B. The plaintiff will win; expert testimony is unnecessary because a reasonable layperson would conclude that there was substandard care.
C. Punitive damages are commonly awarded in medical malpractice cases, especially when negligence has caused death or severe neurologic injury.
D. Gross negligence is something more than ordinary negligence, but less than reckless or wanton misconduct.
E. Good Samaritan laws encourage aid to strangers by providing immunity for a defendant who would otherwise be liable for ordinary or gross negligence.
Answer: D. This hypothetical scenario introduces the notion of gross negligence as being different from ordinary negligence, and the legal implications of that distinction. The vast majority of medical malpractice cases allege ordinary rather than gross negligence. While it is agreed that gross negligence denotes something more “substandard” than ordinary negligence, there is no precise legal definition. In some jurisdictions, such as Connecticut, gross negligence may constitute an exception to the need for expert testimony, which is otherwise a requirement to establish medical negligence. In the above scenario, the jury may be allowed to determine liability without expert testimony only if the doctor's misconduct was so obvious as to constitute gross negligence—by no means a foregone conclusion.
Compensatory damages are the norm for medical plaintiffs who prevail. Punitive damages may occasionally be awarded when gross negligence is proved, but courts in several states have discouraged such awards, absent a malicious intent, so choice C is incorrect. Choice E is also incorrect. To encourage aid to strangers, “Good Samaritan” statutes immunize aid-givers from liability should ordinary negligence result in harm, but such immunity is typically forfeited if there is a finding of gross negligence.
In the medical context, the operational definition of negligence is best referenced in Prosser's Textbook on Torts: “The formula under which this usually is put to the jury is that the doctor must have and use the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing.” Gross negligence denotes a higher degree of culpability than ordinary negligence, signifying “more than ordinary inadvertence or inattention, but less perhaps than conscious indifference to the consequences.” The California Supreme Court approved the definition of gross negligence as “the want of even scant care or an extreme departure from the ordinary standard of conduct” (Van Meter v. Bent Construction Co., 297 P.2d 644, 1956). Likewise, the law in Texas stipulates: “Gross negligence means more than momentary thoughtlessness, inadvertence or error of judgment. It means an entire want of care as to establish that the act or omission was the result of actual, conscious indifference to the rights, safety and welfare of the person affected” (Texas Civil Practice & Remedies Code § 41.001[7]).
Gross negligence does not have to amount to willful, wanton, or malicious misconduct. It does not even have to reach the level of “reckless disregard.” Thus, in the Restatement (First) of Torts, an authoritative source of law, the authors differentiate reckless disregard from gross negligence by stating that the former creates a degree of risk “so marked as to amount substantially to a difference (from gross negligence) in kind.”
Court decisions on the issue of gross negligence, predicated on inconsistent standards, can cut both ways, some favoring the plaintiff and others the defendant. In Jackson v. Taylor, Dr. James Taylor prescribed birth control pills for plaintiff Lois Jackson, who subsequently developed bleeding liver tumors allegedly caused by the birth control pills. The plaintiff's expert testified that Dr. Taylor's acts and omissions demonstrated his conscious indifference to the welfare of his patient (Jackson v. Taylor, 912 F.2d 795, 1990). In another case, the Oklahoma Supreme Court ruled that a 61/2-inch clamp left in a surgical incision “might be construed to support a willful, wanton conduct amounting to gross negligence” (Fox v. Oklahoma Memorial Hospital, 774 P.2d 459, 1989).
A recent decision favoring the defendant involved a penicillin-allergic patient who died from massive hemolysis after receiving ceftriaxone (Rocephin). Relying on the gross negligence exception, the plaintiff failed to call an expert witness and lost the case. The Connecticut Supreme Court decided that “the defendant's conduct in administering Rocephin to the decedent and subsequently refusing to treat or to readmit the decedent does not meet the high threshold of egregiousness necessary to fall within the gross negligence exception” (Boone v. William W. Backus Hospital, 864 A.2d 1, 2005).