We’ve posted about the purported “duty to train”before. It’s another of those supposed torts (like duty to test) that’s really little more than duty to warn dressed up in different garb. Fortunately, as we pointed out in our prior post, the notion of an independent “duty to train” prescribers hasn’t really caught on, certainly not where prescription medical products are concerned.
Our prior post primarily discussed an aviation case, Glorvigen v. Cirrus Design Corp., 816 N.W.2d 572 (Minn. 2012), which we believe to be the first state high court to consider – and quite properly reject – an independent duty to train. Aviation seems to be the other major area (besides our own prescription medical product sandbox) where duty to train claims have been made with some frequency. It’s a useful area to keep track of when addressing this sort of allegation. After all, a defense attorney’s job, when faced with a novel claim, is to be equally creative in coming up with novel defenses.
That brings us to Sheesley v. Cessna Aircraft Co., 2006 WL 1084103 (D.S.D. April 20, 2006), another aviation case that rejected a duty to train claim for a separate reason – that such claims are really a form of “educational malpractice,” a largely discredited theory that originally targeted high schools, colleges, professional schools and other expressly educational institutions. Sheesley summarized the public policy basis for refusing to allow causes of action for educational malpractice:
(1) the lack of a satisfactory standard of care by which to evaluate an educator; (2) the inherent uncertainties about causation and the nature of damages in light of such intervening factors as a student's attitude, motivation, temperament, past experience, and home environment; (3) the potential for a flood of litigation against schools; and (4) the possibility that such claims will embroil the courts into overseeing the day-to-day operations of schools.
Id. at *17 (quoting Page v. Klein Tools, Inc., 610 N.W.2d 900, 903 (Mich. 2000)).
While educational malpractice claims were originally first-party – that is, filed by students alleging that they had been incompetently instructed − Sheesley points out that more remote, third-party educational malpractice claims had also been tried and failed. Id. at *15 (“third parties have also attempted to assert educational malpractice claims as well, usually contending they were injured by the school’s negligent teaching of the student”). See, e.g., Page, 610 N.W.2d at 605; Moss Rehab v. White, 692 A.2d 902, 905 (Del. 1997); Waugh v. Morgan Stanley & Co., 966 N.E.2d 540, 553-54 (Ill. App.), appeal denied, 979 N.E.2d 890 (Ill. 2012); Dallas Airmotive, Inc. v. FlightSafety Int’l, Inc., 277 S.W.3d 696, 700 (Mo. App. 2008), transfer denied (Mo. March 31, 2009). In either case:
If a negligence claim raises questions concerning the reasonableness of the educator’s conduct in providing educational services, then the claim is one of educational malpractice. Similarly, if the claim requires an analysis of the quality of education received and in making that analysis the fact-finder must consider principles of duty, standards of care, and the reasonableness of the defendant’s conduct, then the claim is one of educational malpractice. If the duty alleged to have been breached is the duty to educate effectively, the claim is one of educational malpractice. A claim that educational services provided were inadequate, substandard, or ineffective constitutes a claim of educational malpractice. Where the court is asked to evaluate the course of instruction or the soundness of the method of teaching that has been adopted by an educational institution, the claim is one of educational malpractice.
Dallas Airmotive, 277 S.W.3d at 700 (citations omitted). Notably, both Dallas Airmotive and Sheesley distinguished situations where the plaintiff claimed physical injury during the course of instruction (e.g., being injured by a defectively maintained lathe during metal shop class).
Educational malpractice claims have also been rejected in the context of entities involved in the training and education of physicians. See Gupta v. New Britain General Hospital, 687 A.2d 111, 119-20 (Conn. 1996) (hospital residency program; first-party claim); Moore v. Vanderloo, 386 N.W.2d 108, 113-15 (Iowa 1986) (chiropractic college; third-party claim); Swidryk v. Saint Michael’s Medical Center, 493 A.2d 641, 644-45 (New Jersey Super. Ch. Div. 1985) (hospital residency program; first-party claim).
Indeed, when we delved into this issue, we discovered that the intermediate appellate court in Glorvigen (later affirmed on the broader grounds described in our prior post) had also treated the failure to train claims as a form of educational malpractice, which was rejected in Minnesota (as in most states):
[T]he essence of the claims against appellants is that they failed to provide [the pilot] with effective training and that, as a result, [pilot] was incapable of [responding to the particular emergency]. Because the claims challenge the effectiveness of the training, they sound in educational malpractice and are barred as a matter of law.
Glorvigen v. Cirrus Design Corp., 796 N.W.2d 541, 555 (Minn. App. 2011), aff’d, 816 N.W.2d 572 (Minn. 2012).
In Sheesley, the plaintiffs were the representatives of airplane passengers killed in a crash allegedly caused by a pilot negligently trained so that he did not know how to perform certain aspects of flying a particular aircraft. No way, held the court:
The gravamen of plaintiffs’ claims are that [defendant] negligently trained [pilot] by failing to provide him the skills and training necessary. . . . Further, plaintiffs contend that [defendant] used negligent teaching techniques. . . . In other words, plaintiffs are contesting the substance and manner of [defendant’s] training. Plaintiffs’ claims encompass the traditional aspects of education, and thus, sound in educational malpractice.
* * * *
[T]he court finds that negligent failure to provide an overall education and negligent failure to train how to perform a specific procedure is a distinction without a difference. In both instances, the plaintiff is alleging that the [provider] did not teach the student what he or she needed to know. . . . Here, [pilot] had completed his training prior to the accident, and thus, [plaintiffs] cannot assert a negligent supervision claim. . . . [P]laintiffs’negligence claim sounds in educational malpractice. [This state] would not recognize educational malpractice as a cognizable cause of action.
Sheesley, 2006 WL 1084103, at *16-17 (citations and aviation-related details omitted).
The allegations in Sheesley, and in the other aviation cases we’ve found, are analogous in a lot of ways to failure to train/negligent training claims asserted in cases involving prescription medical products – mostly medical devices. They either allege that the defendant should have offered some sort of specialized training to a third-party professional, but did not; or that the defendant offered such training, but did so negligently. In the aviation cases, that third-party professional is ordinarily the pilot flying the aircraft. In medical device cases that third-party professional would be the doctor who prescribes/uses the device. Analytically, if a training related claim is barred in the aviation context as an improper cause of action for educational malpractice, then it should be equally barred as educational malpractice where the training in question involves medical education about prescription medical product (in addition to the other reasons why failure to train should not state a claim).
We haven’t yet seen a negligent/failure to train claim against a medical device or pharmaceutical manufacturer addressed in this fashion, but there’s always a first time.