Tuesday, December 10, 2013
Why does Means v. USCCB repackage medical malpractice as theological malpractice?
Means v. USCCB is the ACLU's lawsuit against the United States Conference of Catholic Bishops that received so much media attention last week. I did not see much explicitly about the legal merits of that suit in the first wave of reporting. The most I saw was in NPR's story, which quoted Rick Garnett's assessment of the "novel case" as a "stretch." The New York Times did note that the plaintiff had taken the "unusual step" of suing the Bishops' Conference (rather than the doctor or medical facility whose alleged negligent treatment is at issue); the story also included a bioethics source not aligned with the ACLU. But seemingly more typical were stories from NBC News and the Detroit Free Press, which uncritically recited the claims of the lawsuit, quoted the ACLU, noted that the USCCB refused to comment, and then quoted an ethics or medical expert who assumed the truth of the allegations in the complaint.
The USCCB later issued a statement. And with additional time, other commentary has emerged in which the legal merits of the claims have received additional scrutiny. The American Prospect's story by Amelia Thompson-Deveaux, for example, quotes Illinois law professor Robin Fretwell Wilson and places the lawsuit in some legal context:
From a legal perspective, suing the USCCB rather than the doctor or the hospital is akin to blaming a professional organization for medical malpractice, says Robin Fretwell Wilson, a professor of law at the University of Illinois. Much of the ACLU’s case hinges on the lack of information imparted to Means, which is generally considered to be the doctor’s responsibility. “I don’t doubt that if [Means] sued the hospital or the doctor, this would be plain-vanilla medical malpractice,” she says. “But they’re not suing the doctor, the hospital, the local bishops, the board of trustees—you’re many layers removed from the person who really should owe this woman a remedy if everything in the complaint is taken as accurate.”
This assessment seems correct. As Eduardo Peñalver mentioned in the update to his post at dotCommonweal, the article "does a nice job of laying out some of the problems with the ACLU's legal theory."
The existence of these problems raises another set of questions about why the ACLU brought the lawsuit as they did in the first place. If one assumes for purposes of analysis that medical malpractice was committed, then why not sue for medical malpractice? Why repackage a potentially winning claim of medical malpractice into a seeminly losing claim of theological malpractice? These are questions that have been bothering me from the beginning. And they seem to have been bothering others as well.
One answer may be that the ACLU's goal in the case is not to obtain personal redress for their client but instead to place a dark cloud over Catholic healthcare more generally. That is not only plausible but probable. But it can't be a full explanation, because naming the doctors and the hospital and any other potentially responsible parties does not preclude naming the USCCB. And motivational attributions of this sort can be dangerous.
The real reason (or more likely, the main reason among others) may be simpler. The best explanation for the peculiar theory of the case may be that they were out of time. The complaint alleges two counts of negligence. Although the complaint is not as explicit on this point as it could be, these are state-law claims under Michigan law. There may be federal-law defenses based on statutory preemption or the First Amendment. But the basic claims are state-law claims, and these are governed by state-law statutes of limitations. The relevant statutes of limitations are at MCL 600.5805. There is a two-year statute of limitations for malpractice actions, MCL 600.5805(6), and a catch-all three-year statute of limitations for damages actions for personal injury not otherwise provided for, MCL 600.5805(10).
According to the complaint, the injuries at issue in Means v. USCCB occurred from December 1 to December 3, 2010. From the little research that I have done, then, it appears that a medical malpractice claim would have been barred by the statute of limitations as of December 3, 2012, whereas a generic personal injury claim would have remained open for another year. And if that is right, the legal explanation for the ACLU's recourse to the novel legal theory of theological malpractice in Means v. USCCB is that they filed too late to recover for medical malpractice. Concern about the statute of limitations even for this generic personal injury claim premised on theological malpractice probably also explains the timing of filing. The complaint was docketed as filed on November 29, 2013, which means that they just made it in if the three-year statute of limitations applies.
I am not a Michigan lawyer and there may well be additional legal reasons for not bringing a medical malpractice claim. But if you ask the right questions, the basic statute-of-limitations research for a post like this takes just minutes, does not require too much specialized knowledge, and is free. Given the lack of reporting on this issue, the journalists in the first wave of stories may not have been asking the right questions (for the legal angle of the story at least).