Many expressed shock at the deaths.”2 The families of the victims sued the psychiatrist for medical malpractice despite not being his patients, claiming that the homicidal and suicidal behavior was foreseeable and preventable. This is a truly astonishing standard and wholly impractical in the real world. The fundamental dilemma posed in these cases is the intersection between the individual right to privacy as expressed by the confidentiality of the physician-patient relationship and the physician’s duty to warn the broader public of potential danger and harm. On timing, the court explained that because equivalence in the literal infringement context of § 112(f) is evaluated at the time of a patent’s issuance, whereas equivalence in the DOE context is evaluated at the time of infringement, an after-arising technology “can be found to be an equivalent under the doctrine of equivalents even though it cannot be an equivalent under the literal infringement analysis of § 112(f).”23 Yet, that future remains uncertain and underscores the importance of understanding your state’s duty to warn doctrine and engaging in the process to address overly broad and harmful standards that pose existential crises to the physician-patient relationship. Trading Techs. “A serious and imminent threat to the safety of a person or the public”; “Disclosure is only to a person(s) reasonably able to prevent or lessen the threat, including the target of the threat.”. The foreseeability test basically asks whether a person of ordinary intelligence should have reasonably foreseen the general consequences that could result because of his or her conduct. Like many with bipolar depression, the patient was somewhat compliant with his medications and sometimes would go for long stretches without regular care. .”). The care of psychiatric patients is one of the most challenging parts of emergency medicine. The Doctrine Of Equivalents And Prosecution History Estoppel. The doctrine of foreseeability is the basis of tortuous liability. Emergency Doctrine: A legal principle exempting a person from the ordinary standard of reasonable care if that person acted instinctively to meet a sudden and urgent need for aid. Of 44 jurisdictions with cases on point, 41 have come down on the side of the narrowed duty of imminent, foreseeable, and specifically identifiable victims, with the exceptions of Tennessee, Wisconsin, and Vermont.8 As a result, most clinicians will be subjected to the traditional medical school teaching of the balanced duty to warn. But, as with most evolving areas of health law, it can be reasonably recommended that providers should document their determination of the risk associated with any complaints of homicidal ideation. 8 A differential is a mechanism that allows wheels to spin at different speeds. Notify any new significant other in a patient’s life that the patient had made previous statements of homicidal thoughts to an ex-spouse and her new boyfriend? “There is not, nor has there ever been, a foreseeability limitation on the application of the doctrine of equivalents.” Slip op. 17 Id. 5,591,098, claim 1 (emphasis added). The court went further, stating that whether a particular equivalent was known to be a suitable alternative is irrelevant to the foreseeability analysis. Nathaniel Schlicher, MD, JD, MBA, FACEP, Associate Director, TeamHealth Patient Safety Organization; Regional Director of Quality, TeamHealth Northwest; Emergency Physician, St. Joseph’s Medical Center, Tacoma, WA. When a means-plus-function limitation appears in a claim, it strictly covers only the structures “described in the specification and equivalents thereof.”6  There has thus been considerable debate over the last two decades on the application of the DOE to means-plus function limitations. NEGLIGENCE & FORESEEABILITY: Doctrine of Law or Public Policy (Was there more than a snail in Ms Donaghue’s bottle of ginger beer?) (1) the foreseeability of harm to the plaintiff, (2) the degree of certainty that the plaintiff suffered injury, (3) the closeness of the connection between the defendant's conduct and the injury suffered, the (4) moral blame attached to the defendant's conduct, the (5) policy of preventing future harm, the (6) extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with … The key element of any traditional negligence per se action is that the jury no longer has to consider whether the defendant's actions were reasonable or not. TIP Sys., LLC v. Phillips & Brooks/Gladwin, Inc., 529 F.3d 1364, 1379 (Fed. Rejecting a per se bar for foreseeable equivalents tends to promote efficiency in claiming and avoids the need to literally cover each insubstantial difference to function in § 112(f) claiming. § 112(f). In the case, Pittman v. Rivera , the plaintiff was a patron of the defendant’s bar who was struck by another customer’s car while in the parking lot talking to friends. Foreseeability is a legal theory which attempts to place some kind of duty of care on someone’s actions. LEXIS 2962, at *6-7 (citing Overhead Door, 194 F.3d at 1271). at *6 (citing, inter alia, Warner-Jenkinson, 520 U.S. at 36 (“The known interchangeability of substitutes for an element of a patent is one of the express objective factors . This foreseeability rule, if it existed, would have created a sort of “patent drafter estoppel” whereby equivalent structures that should have been foreseeable during prosecution would be precluded under the DOE.12  The primary rationale for such a rule is public notice.13  While the Federal Circuit has moved away from reading Sage Products to require that applicants literally identify all foreseeable equivalents in the claims,14 the well-worn argument persists. The court record reflected that “family members, friends, and acquaintances who visited [the patient] shortly before the incident gleaned no indication of any plan to kill someone or to commit suicide. When applied to the case at hand, it is hard to imagine that a patient without homicidal ideation in five years and no imminent threat to a specific target would meet the requirements of HIPAA for disclosure. When determining if the Defendant owed a duty of care to the Plaintiff, the court will examine whether it was reasonably foreseeable that there would be an injury to the particular plaintiff. Cir. It basically states that someone is responsible for causing another person’s injuries if they were aware that their actions may have detrimental effects, did not change these actions or make the necessary adjustments, as well as causation between their action and the injury. Id., slip op. How to use foreseeable in a sentence. 9 U.S. Patent No. With no good risk stratification tools, limited mental health resources in many of our states, and exploding need, decisions like this can seem to turn the difficult into the impossible. Co., 520 U.S. 17, 21 (1997) (emphasis added). Inc. v. ARB Corp., No. 28, No. We can only hope that cooler heads will prevail and reasonable solutions can be found. Serv. Atlanta ▪ Boston ▪ London ▪ Palo Alto ▪ Reston ▪ Shanghai ▪ Taipei ▪ Tokyo ▪ Washington, DC, Copyright © 2014 Finnegan, Henderson, Farabow, Garrett & Dunner, LLP | All rights reserved. Washington State Legislature. 15 Ring & Pinion, 2014 U.S. App. The delicate balance of these ethical challenges has come under recent assault in Washington in the case of Volk v. Demeerleer.2 The court effectively disemboweled the sacredness of the physician-patient relationship in the name of the greater hypothetical good, no matter how vague, unforeseeable, and remote it may be. of foreseeability. This legal doctrine does not shift the burden of proof to the defendant, because under this doctrine the eggshell plaintiff still must prove the nature and probable duration of the injuries sustained. In the recent Ring & Pinion Service Inc. v. ARB Corp. decision, the U.S. Court of Appeals for the Federal Circuit held that the foreseeability of an equivalent at the time of filing does not, in itself, create a bar to reliance on the doctrine of equivalents (DOE).1  The unanimous Federal Circuit panel confirmed that infringement can indeed be found under the DOE, notwithstanding that, at the time of the application, the equivalent limitation in question was foreseeable to one of ordinary skill.2  Further, Ring & Pinion clarifies how the DOE applies to claims written with functional language, and dispels the notion that prior case law ever precluded the application of the DOE to foreseeable equivalents of means-plus-function claim limitations.3. Maybe post a comment on their Tinder, Facebook, or Snapchat accounts for all to see of their homicidal flights of fancy? LEXIS 2962, at *1 (Fed. LEXIS 2962, at *1. With regard to the latter, the growth Cir. A psychiatrist accused of malpractice started caring for a patient in 2001 for bipolar depression. But, as with most evolving areas of health law, it can be reasonably recommended that providers should document their determination of the risk associated with any complaints of homicidal ideation. Seating Co., 420 F.3d 1350, 1358 (Fed. One cannot think of a more destructive standard to undermine the physician-patient relationship. 2000) (Rader, J., concurring); Johnson & Johnston Assocs., Inc. v. R.E. The Volk case, like so many involving mental health patients, arises out of a tragedy that cannot be dismissed easily. Financial Disclosure: The following individuals disclose that they have no consultant, stockholder, speaker’s bureau, research, or other financial relationships with companies having ties to this field of study: Arthur R. Derse, MD, JD, FACEP (Physician Editor); Stacey Kusterbeck (Author); Jonathan Springston (Editor); Kay Ball, RN, PhD, CNOR, FAAN, (Nurse Planner); and Shelly Morrow Mark (Executive Editor). The court distinguished Sage Products, explaining that the scope of the claims there were limited in such a way that they necessarily excluded a structural feature that was the opposite of the one recited in the claim, precluding infringement under the DOE only because it would have entirely vitiated a claim limitation based on the facts of the case.17  Thus, Sage Products was seen as enforcing the traditional “all elements” rule18 and not creating a new foreseeable equivalents bar.19 By Hon. 14 See, e.g., Overhead Door Corp. v. Chamberlain Grp., Inc., 194 F.3d 1261, 1271 (Fed. Rowe v. As such, the supremacy clause would require that the court comply with the HIPAA standard and bar disclosure, not demand it. Foreseeability Legal doctrine which dictates that if an employee could see the potential for harm and still carried out the act, they are liable. The leading proponent of the objective doctrine, Wharton, argued that the idea of a multiplicity of causes would lead to a selection of the legal cause of the tort on anti-capitalist grounds,I7 and he also opposed the growth of a foreseeability doctrine on related grounds. Under New Hampshire law, plaintiffs intending to hold an at-fault party responsible for their injuries must meet the legal elements of a negligence claim. Foreseeability is relevant to both duty and proximate cause. confirmed that there is no foreseeability exception to the doctrine of equivalents. Doctrine of last clear chance Doctrine of last clear chance A physician who has the last clear chance of avoiding damage or injury to his patient but negligently fails to do so is liable = may apply to death by asphyxia of children suffering from diphtheria on account of the failure of the physician to examine thoroughly the throat area for a potential membrane which may physically interfere with the respiration … Most often, the “all elements” rule serves to prevent vitiation of a claim limitation when the infringement theory is based on the DOE. at 4. But proximate cause is still met if a thrown baseball misses the target and knocks a heavy object off a shelf behind them, which causes a blunt-force injury. Practitioners can perhaps rest more easily after Ring & Pinion. Please click here to continue without javascript.. ED Patients in Observation Status Are Focus of Recent Med/Mal Cases, Recent Cases Spotlight Pressure to Admit ED Patients, Psych Patients Awaiting Transfer From ED Are High Legal Risks, Unexpected Legal Risks of ED Patients With ‘Do Not Resuscitate’ Orders, Excessive Wait Times Common Issue in ED Malpractice Litigation. Another important foreseeability-based rule is known as the "eggshell skull" doctrine, which applies when the plaintiff's unknown and unexpected health condition causes injuries far beyond what one would normally foresee based on the nature and severity of the accident. 4 Warner-Jenkinson Co. v. Hilton Davis Chem. You must have JavaScript enabled to enjoy a limited number of articles over the next 360 days. Earlier this month, the Supreme Court of Nebraska issued an opinion outlining the doctrine of foreseeability and how it can act to prevent a plaintiff’s recovery. A restrictive “patent drafter estoppel” was again affirmatively rejected in this latest examination of the question. The supremacy clause of the U.S. Constitution provides that HIPAA overrules any conflicting statute or court finding regarding the protection of patient privacy in medical care. . Foreseeability and the DOE: The Fed. A claimant will only recover damages in circumstances where she can show that the damage is a reasonably foreseeable consequence of the practitioner’s breach of duty. Furthermore, the court acknowledges that the legislature, by statute, narrowed this duty for involuntary commitment patients to warn those that the “patient has communicated an actual threat of physical violence against a reasonably identifiable victim or victims.”5 The Volk decision instead holds that the duty for voluntary outpatient treatment extends more broadly than in the setting of involuntary treatment to include all foreseeable victims. If a provider resides within one of the states that now has a “foreseeability” standard that may violate HIPAA standards, guidance is speculative at best. Having correctly determined the foreseeability issue, however, the trial court should have just entered the stipulation as agreed to by the parties, according to the Federal Circuit, instead of indulging a further vitiation argument.28  The court reversed and remanded with instructions to grant summary judgment of infringement to ARB.29 Declaratory judgment plaintiff Ring & Pinion (R&P) claimed before the trial court that its product did not infringe ARB’s patent directed to an improved automobile locking differential.8  Claim 1 was deemed representative: There was no dispute that all limitations were literally met in R&P’s “Ziplocker” product except for one—the “cylinder means formed” element. Cir. Accordingly, the parties entered a formal stipulation that the infringement analysis hinged on a discrete question of law: whether an equivalent is barred under the DOE because it was foreseeable at the time of the patent application. at *11-12 (“A stipulation of fact that is fairly entered into is controlling on the parties and the court is generally bound to enforce it. 1999). This means that proximate cause can be linked if a reasonable person would have foreseen the harmful consequences, and taken action to prevent them. Dr. Schlicher reports no financial relationships relevant to this field of study. A locking differential distributes torque from the engine such that wheels spin at the same rate when locked. Cir. Foreseeability falls to be determined before the issue of causation is addressed. See Ring & Pinion, 2014 U.S. App. Tragically, in July 2010, the patient murdered his recently estranged fiancée and one of her sons and seriously injured another. The court explained that “[t]he doctrine of equivalents thus covers structures with equivalent, but not identical functions. The court found that the duty to warn extended to any foreseeable victims, not just those readily identifiable. The district court held that foreseeability did not, as a matter of law, preclude ARB’s reliance on the DOE. 2008); Freedman Seating Co. v. Am. Its application varies from state to state. How would the psychiatrist meet the standard? 19 Ring & Pinion, 2014 U.S. App. Thus, thorough documentation should be the target of providers in these challenging states. The patient never attempted to harm his ex-wife or her boyfriend, and went on to enter into a new and successful relationship that resulted in an engagement, pregnancy, and shared living arrangement with his partner and her three children. "The thing speaks for itself" In lieu of medical expert's testimony, the defendant may explain the events and try to convince the jury that no negligence was involved. The duty to warn doctrine, often referred to by the foundational Tarasoff case,1 is a classic ethical quandary presented to every medical student in their training. at 27 (“[A]n applicant can describe an element of his invention by the result accomplished or the function served, rather than describing the item or element to be used (e.g., ‘a means of connecting Part A to Part B,’ rather than ‘a two-penny nail’).”). 28 Id. There a bus was coming and behind the bus, there was a lorry of the defendant. In other words, causation provides a means of connecting conduct with a resulting effect, typically an injury. LEXIS 14106, at *16-18 (W.D. Foreseeability is a legal construct that is used to determine proximate cause—and thus a person’s liability—for an act of negligence that resulted in injury. 21 Ring & Pinion, 2014 U.S. App. Here the partes stipulated to equivalence . . Foreseeability. 26 Id. Even in what may be considered an accident, a party may be held liability if the harm or injury was foreseeable, or a reasonably possible result. March 2014 Issue Foreseeability Does Not Bar the Doctrine of Equivalents, Including for Means-Plus-Function Limitations by J. Derek McCorquindale. 1 : the quality or state of being foreseeable reasonable foreseeability of probable consequences — Gerwin v. Southeastern Cal. At no time had the patient expressed homicidal thoughts toward the victims. at 18. Your injury would not have happened were it not for the proximate cause. Or possibly take out a newspaper ad if their thoughts are more of a general societal nature? 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