Physician Resources

The issue underlying this petition was whether the rules regulating attorneys should be modified to conform to a voter-initiated amendment to the Florida Constitution, which limited medical malpractice plaintiffs’ attorneys’ contingency fees.

AMA interest

The AMA seeks to avoid abusive litigation against physicians.

Case summary

By a voter initiative in 2004, the State of Florida amended Article I, §26 of the Florida Constitution to read as follows:

“In any medical liability claim involving a contingency fee, the claimant is entitled to receive no less than 70% of the first $250,000.00 in all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants. The claimant is entitled to 90% of all damages in excess of $250,000.00, exclusive of reasonable and customary costs and regardless of the number of defendants. This provision is self-executing and does not require implementing legislation.”

However, Rule 4-1.5(f)(4)(B) of the Rules Regulating the Florida Bar, which provides ethical limitations on contingency fees, allows contingency fees in excess of the percentages permitted by Article I, §26. The Florida Medical Association (“FMA”), through its attorneys, petitioned the Florida Supreme Court to bring its rules into line with the amended constitutional provision.

However, the Florida Supreme Court, following a proposal from the Florida Bar Association, instead allowed attorneys to have their clients waive the protections of the constitutional amendment. Thus, the amended rule essentially eviscerates the salutary effect of the constitutional amendment.

Litigation Center involvement

At the request of the FMA, the Litigation Center, along with the Mississippi State Medical Association, filed a memorandum with the Florida Supreme Court on Sept. 22, 2005 to support the FMA petition.

View the memorandum. (PDF, 53KB).

Becker v. Mayo Foundation, 737 N.W.2d 200 (Minn. 2007)

Issue

The issue in this case was whether a statute allowing a government prosecutor to bring a criminal charge against hospitals and physicians for failure to report the neglect and physical or sexual abuse of children could be expanded to impose civil liability under a private right of action.

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.

Case summary

The Minnesota Child Abuse Reporting Act (CARA) requires hospitals and physicians to report suspected child abuse to county authorities. The plaintiffs in this case, adoptive parents of a child who had suffered permanent injuries from the repeated physical abuse of her birth father, claimed that the defendant hospital and physicians had negligently failed to report the abuse. They sought to establish a new civil cause of action under CARA. The trial court held that the statute did not create a non-governmental cause of action, even if the hospital's emergency room physicians had negligently failed to report the child abuse. The child's parents appealed to the Minnesota Court of Appeals, which affirmed the trial court. They then appealed that decision to the Minnesota Supreme Court.

The Minnesota Supreme Court ruled that CARA cannot be enforced by a non-government entity. However, the Court also ruled that a (non-statutory) medical malpractice claim could be brought for failure to report abuse to the appropriate governmental agency and that, in bringing such a claim, a plaintiff may introduce evidence of the statute and its reporting obligations. The Court remanded for another trial.

Litigation Center involvement

The AMA, the Minnesota Medical Association, the Minnesota Hospital Association, and several specialty medical societies filed an amicus curiae brief in the Minnesota Supreme Court in support of Mayo Foundation, arguing against recognition of a new cause of action for negligent failure to report child abuse under CARA.

View the brief (PDF, 1MB).

Issue

The Litigation Center, along with the Montana Medical Association, asked a Montana trial court for leave to file a brief as amici curiae in support of the Montana medical malpractice liability reform statute, which caps non-economic damages at $250,000. The plaintiffs opposed the request. On October 24, 2005, the court denied the AMA/MMA motion.

AMA interest

The AMA supports tort reform laws.

Eldridge v. Johnson (Marion County, Ind. Super. Ct.)

Issue

Through this lawsuit, the Indiana State Medical Association (ISMA) successfully defended against an attack on the Indiana tort reform law.

AMA interest

The AMA supports tort reform laws.

Case summary

James and Paula Eldridge sued their physician, Leighton Johnson, M.D., for medical malpractice in the Marion County, Indiana Superior Court. Following a two week jury trial, each plaintiff secured a judgment against Dr. Johnson. The judgments, together, came to just under $3.9 million.

Dr. Johnson moved to reduce the jury’s verdict to a total of $750,000, based on the Indiana tort reform statute, which states: “The total amount recoverable for an injury or death of a patient may not exceed … $750,000 for an act of malpractice.” The Eldridges opposed the motion, arguing that (i) Dr. Johnson had committed multiple acts of malpractice and (ii) the damages cap in the Indiana statute was unconstitutional. In support of the second argument, they contended that the damages cap failed to meet its legislative objectives. With the assistance of the Association of Trial Lawyers of America, they tendered expert witnesses, who were prepared, based on statistical evidence, to testify that the Indiana law failed to meet those objectives.

When it learned of the case, ISMA determined that the Eldridges were posing a serious threat to the statute. Because of its importance, ISMA persuaded the Indiana Attorney General to intervene in the suit. The Attorney General retained a private defense attorney, specializing in medical malpractice cases, to represent the State of Indiana. This attorney, with ISMA assistance, obtained expert witnesses to counter the plaintiffs’ experts. However, ISMA had to pay for the private defense attorney and the defense experts out of its own pocket. Before the motion for reduction of verdict was decided, the case settled.

Litigation Center involvement

The Litigation Center helped ISMA defray its defense costs.

Etkind v. Suarez, 271 Ga. 352 (Ga. 1999)

Etkind argued that Dr. Suarez had negligently failed to diagnose Downes Syndrome in her fetus. Thus, she had failed to abort her pregnancy. She alleged that she will incur child rearing and other expenses, and she wanted to hold Dr. Suarez responsible. The trial court dismissed this case, because Georgia does not recognize a cause of action for “wrongful birth.” The case was appealed to the Georgia Supreme Court.

The Medical Association of Georgia (MAG) filed an amicus brief in support of Dr. Suarez. MAG maintained that a child, no matter how defective, should not be deemed a compensable injury. It also asserted that an action for wrongful birth would distort the ordinary physician-patient relationship. The Litigation Center adopted the MAG brief.

By a 6 to 1 decision, the Georgia Supreme Court ruled in Dr. Suarez’s favor.

Evans v. State of Alaska, 56 P.3d 1046 (Alaska. S.Ct. 2002)

Issue
This case challenges the constitutionality of the Alaska tort reform law.

AMA interest
The AMA supports limits on non-economic damages in medical malpractice cases.

Case summary
The trial court held that the tort reform law is constitutional, and the matter was appealed to the Alaska Supreme Court, which affirmed. The Alaska State Medical Association, through the Alaska Chamber of Commerce, prepared an amicus brief in support of the legislation.

Ferdon v. Wisconsin Patients Compensation Fund, 701 N.W.2d 440 (Wis. S. Ct. 2005)

Issue

The issue in this case was whether Wisconsin’s statutory limit on non-economic damages in medical malpractice cases was constitutional.

AMA interest
The AMA supports the limitation of non-economic damages in medical malpractice cases.

Case summary
This case challenged the Wisconsin statutes limiting medical malpractice non-economic damage awards. The plaintiffs asserted, under a broad range of legal theories, that the statutory cap on non-economic damages was unconstitutional.

The Wisconsin Supreme Court, reversing the decisions of the lower courts and overturning established precedents, found that the Wisconsin cap on non-economic damages violated the Equal Protection Clause of the Wisconsin Constitution. The Supreme Court declined to follow its ruling in Maurin v. Hall, 682 N.W.2d 866 (2004), which had rejected an equal protection challenge to a limit on non-economic damages in a wrongful death case.

Litigation Center involvement

The Litigation Center and the Wisconsin Medical Society filed a brief as amicus curiae, emphasizing the benefits that the caps on non-economic damages had provided to the State of Wisconsin.

View the brief (PDF, 492KB).

Heinrich v. Sweet 308 F.3d 48 (1st Cir. 2002)

Issues

The primary issues in this case were (a) whether the district court correctly applied the Massachusetts statute of limitations to uphold a jury’s finding of liability against Dr. William Sweet based on actions that occurred almost forty years prior to trial, and (b) whether a jury’s finding of informed consent should have precluded a simultaneous verdict of fraudulent concealment.

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive malpractice litigation.

Case summary

Dr. Sweet, a world famous physician, was the chief neurosurgeon at Massachusetts General Hospital (“MGH”). In the late 1950’s and the early 1960’s, he conducted a medical experiment, known as boron neutron capture therapy. The experiment was approved in advance by the Executive Committee of the MGH Medical Staff, the MGH Board of Trustees, and the Biomedical Advisory Committee at Massachusetts Institute of Technology (“MIT”) (composed of representatives of MIT and seven other prestigious institutions, including three Boston area medical schools). Candidates for the experiment were terminally ill patients with fast growing brain tumors. After their injection with boron, a neutron beam, derived from an MIT nuclear reactor irradiated these patients. Both MGH and MIT closely supervised the clinical trials, which the federal government partially funded and also monitored.

Unfortunately, the procedure was, at least at times, painful. Moreover, the radiation damaged healthy brain tissue as well as the tumors. Ultimately, the experiment was unsuccessful, and all of the patients died.

In 1995, the President’s Advisory Committee on Human Radiation Experiments issued an analysis of human radiation testing commencing in the 1940’s. When the study was reported in the media, Evelyn Heinrich, the widow of George Heinrich, remembered that Dr. Sweet had conducted radiation treatments on her husband in 1961. She sued Dr. Sweet, MGH, MIT, the United States of America, and several other defendants. After she filed suit, she was joined by Henry M. Sienkewicz, the son of another of Dr. Sweet’s patients, Eileen Sienkewicz. The plaintiffs contended that, although Dr. Sweet may have advised his patients of the risks of the procedure, he did not tell them that the experiment was unproven and had no reasonable probability of success. Thus, the plaintiffs alleged that either the procedure itself or the manner in which it was performed was negligent. Dr. Sweet was 89 years old and suffering from Parkinson’s Disease at the time of trial, so he did not testify in his own behalf. He died shortly thereafter.

After a twenty-day trial, most of the defendants were either dismissed on motion or found not liable. However, the jury found in favor of the plaintiffs and against Dr. Sweet for $4,750,000. A portion of this sum was compensatory damages, and a portion was punitive damages. The jury did find, though, that the patients’ consent to the procedure had been informed. The trial court upheld the finding of liability against Dr. Sweet, summing up the case against him as follows:

“In short, Sweet well knew during his care of these patients that his [boron neutron capture therapy] treatments were not helping them, and, in fact, were causing severe side effects unrelated to the progressive effect of the fatal brain tumors. He pressed ahead anyway, believing in complete good faith that such experimentation on dying patients held out hope for other cancer victims.”

Due to certain statutory limitations, the court reduced the award against Dr. Sweet to $830,000. Judgment was also entered against MGH. Both sides appealed.

The United States Court of Appeals for the First Circuit reversed. It held, primarily, that the evidence against the defendants was insufficient to prove negligence or damages for wrongful death. The plaintiffs’ case was built upon the conclusions that they reached in hindsight, rather than the state of medical science available at the time of the experiments. The court also agreed with the argument, raised in the amicus brief, that the jury verdicts for the defendants on the informed consent count precluded liability on the other counts.

Litigation Center involvement

The Litigation Center and the Massachusetts Medical Society filed an amicus curiae brief on Dr. Sweet’s behalf in the First Circuit.

View the brief. (PDF, 69KB)

Ho v. Frye, 2008 Ind. LEXIS 146 (Ind. S.Ct. 2008)

Issue

The question in this case is whether a surgeon who inadvertently left a sponge in his patient should be absolutely liable for the mistake or whether liability should turn on whether he was negligent, a jury question.

AMA interest

The AMA seeks to contain the burden of medical malpractice liability against physicians by opposing legal arguments that would expand such liability.

Case summary

After performing surgery on a patient, Dr. Ho requested a sponge count confirming that he had removed all of the sponges used during the procedure. The hospital's surgical nurse and surgical assistant reported to Dr. Ho that the sponge count was correct and that the sponges had been removed. It was later discovered, however, that a sponge had been left in the patient's abdomen. The patient sought to hold Dr. Ho liable for her injuries.

At trial, Dr. Ho argued that he had been entitled to rely on the sponge count of the nurse and surgical assistant, and the jury ruled in his favor. The plaintiffs moved for a new trial, and the trial court granted that motion. Both sides appealed.

The appellate court held Dr. Ho strictly liable for the incorrect sponge count and remanded the case to the trial court for a trial on damages. Dr. Ho then appealed to the Indiana Supreme Court, which on February 21, 2008 reinstated the jury verdict. The Indiana Supreme Court held that physicians are not absolutely liable as a matter of law for failure to remove unnecessary sponges used in a patient during surgery. Instead, this is a factual issue for the jury to decide.

Litigation Center involvement

The Litigation Center and the Indiana State Medical Association filed an amicus brief and an amicus reply brief on Dr. Ho's behalf in the Indiana Supreme Court. The briefs argued that the theory of absolute liability espoused in the Court of Appeals was based on obsolete ideas about surgical practice. Because medicine is a complex, joint enterprise among physicians and other healthcare workers, physicians have a right to rely, at least in some instances, on the sponge count of a nurse and surgical assistant. Accordingly, Dr. Ho's negligence was properly a jury question.

View the principal brief (PDF, 780KB).

View the reply brief (PDF, 158KB).

Hughes v. PeaceHealth, 2008 Ore. LEXIS 60 (Ore. S.Ct. 2008)

Issue

The issue in this case is the constitutionality of an Oregon law that limits ("caps") non-economic damages in wrongful death cases.

AMA interest

The AMA supports limits on non-economic damages in medical malpractice cases.

Case summary

A jury awarded plaintiff economic damages of $100,000 and non-economic damages of $1 million in a wrongful death medical malpractice case. The trial court then reduced the award of non-economic damages to $500,000 pursuant to an Oregon statute limiting non-economic damages in wrongful death cases to that amount. The Oregon Court of Appeals affirmed the reduced award.

On appeal to the Oregon Supreme Court, the plaintiff argued that the statutory cap on non-economic damages in wrongful death cases violates the constitutional right to a "remedy by due course of law" and the constitutional right to a trial by jury. On February 22, 2008, however, the Oregon Supreme Court affirmed the lower courts and held that the cap on non-economic damages is constitutional.

Litigation Center involvement

The Litigation Center, together with the Oregon Medical Association, filed an amicus curiae brief in the Oregon Supreme Court supporting the cap. The brief argued that the Oregon law does not abolish a plaintiff's cause of action or remedy. The brief further argued that if it should be necessary for the court to inquire whether the remedy provided by the statute is constitutionally adequate, the court should find that the remedy is indeed adequate.

View the brief (PDF, 402KB).

Lebron v. Gottlieb Memorial Hospital (Ill.S.Ct.)

Issue

The principal issue on appeal in this case is whether the Illinois statutory cap on non-economic damages is constitutional under the Separation of Powers Clause of the Illinois Constitution (Ill. Const. 1970, art. II, § 1).

AMA interest

The AMA supports reformation of the tort liability system in order to control escalating costs of medical liability.

Case summary

Frances Lebron sued her hospital, her treating physician, and an attending nurse for alleged negligence during a cesarean section. She moved for partial judgment on the pleadings, contending that the Illinois law that capped non-economic damages in medical liability suits was unconstitutional. Specifically, she claimed that the cap violated the Separation of Powers Doctrine by supplanting the judiciary’s role in determining whether remittur (i.e., reduction in the amount of the jury verdict) is appropriate under the facts and verdict of the case. She also argued that entire Illinois Tort Reform law was void, because it indicated an inseverability clause.

The trial court declared the non-economic damages cap statute (735 ILCS 5/2-1706.5) unconstitutional under the Separation of Powers Clause of the Illinois Constitution and also declared Public Act 94-677 invalid in its entirety in accordance with the Act’s inseverability clause at § 995.

Defendants have appealed to the Illinois Supreme Court.  Oral argument was heard on November 13, 2008.

Litigation Center involvement

The Litigation Center, on behalf of the AMA and the Illinois State Medical Society, filed an amicus brief in the Illinois Supreme Court in support of the defendants-appellants and the constitutionality of the cap on non-economic damages.

View the brief. (PDF, 896KB)

Issue

The issue in this case is whether the trial court had the right to order a new trial based on a plaintiff's lawyer's misconduct.

AMA interest

The AMA supports curbs on abusive litigation against physicians.Case summaryIn a medical malpractice suit claiming injuries arising during childbirth, a highly flamboyant plaintiff's lawyer persuaded a jury to award $30 million in damages. Half of these damages were based on non-economic factors. After the jury rendered its verdict, the trial judge ordered a new trial, finding that the jury's award had been excessive and given "under the influence of passion and prejudice."

The plaintiffs appealed to the Cuyahoga County Court of Appeals, which reversed the trial court's order. Defendants then appealed to the Ohio Supreme Court, which reinstated the trial court order of a new trial. The Ohio Supreme Court found that there was competent, credible evidence to support the trial court's decision.Litigation Center involvementThe AMA, along with the Ohio State Medical Association, filed an amicus curiae brief supporting the trial court's mistrial order. It emphasized the harm to health care that can arise from excessive judgments in medical malpractice lawsuits, as well as the harm to the system of justice that can arise from allowing over-zealous attorneys to make prejudicial statements to juries.

View the brief (PDF, 950KB).

Issue

The issue in this case was the constitutionality of a Wisconsin statute that limits the amount of non-economic damages that are recoverable by a plaintiff in a wrongful death lawsuit.

AMA interest

The AMA supports the limitation of non-economic damages in medical malpractice cases.

Case summary

The trial court held that the limit on non-economic damages in the Wisconsin Wrongful Death Act violates the Wisconsin Constitution. The court reasoned that the statute deprives litigants of the right to a trial by jury, and violates due process, equal protection, and the separation of powers doctrine. Following certification by the Wisconsin Court of Appeals, the case was appealed directly to the Wisconsin Supreme Court.

The Supreme Court, by a split decision, reversed the trial court and upheld the constitutionality of the limit on non-economic damages. The plaintiff moved for reconsideration, but the court, by a four to two vote, denied that motion.

This holding may have been overruled in Bartholomew v. Wisconsin Patients Compensation Fund, 717 N.W.2d 216 (Wis. S. Ct. 2006) and/or Ferdon v. Wisconsin Patients Compensation Fund, 701 N.W.2d 440 (Wis. S. Ct. 2005).

Litigation Center involvement

The Litigation Center joined the Wisconsin Medical Society and the Wisconsin Hospital Association in an amicus curiae brief seeking reversal of the trial court decision.

View the brief (PDF, 89KB).

Molloy v. Meier, 679 N.W.2d 711 (Minn. S. Ct. 2004)

Issues

The issues in this case were the legal duties a pediatrician owes to a patient's mother and the accrual, under the Minnesota Statute of Limitations, of a cause of action for "wrongful conception."

AMA interest

The AMA seeks to avoid abusive litigation against physicians.

Case summary

This medical malpractice suit was brought against a pediatrician who allegedly failed to test for a genetic abnormality in one of her patients. More than five years after the alleged misdiagnosis, the patient's mother conceived another child, who, after birth, was found to suffer from the same genetic abnormality. The Minnesota Court of Appeals found, on the pleadings, in favor of the patient's mother. The case was then appealed to the Minnesota Supreme Court, which affirmed.

Litigation Center involvement

The Litigation Center, along with the Minnesota Medical Association and two other not-for-profit organizations, filed an amicus curiae brief on the pediatrician's behalf.

View the brief. (PDF, 83KB)
 

Issue

The issue in this case is whether an Agreement for Corrective Action (ACA) between a podiatrist and the Minnesota Board of Podiatric Medicine should have been excluded from evidence in a malpractice case against the podiatrist.

AMA interest

The AMA supports the rehabilitation of professionals whose practices are below acceptable standards.

Case summary

Podiatrist Roy Wayne Buckmaster performed a complicated surgery on patient Sandra O'Rourke's foot. After O'Rourke continued to complain of pain, Buckmaster performed a second surgery, which was similarly unsuccessful. Another podiatrist then criticized both the type and manner of the surgery Buckmaster had performed.

O'Rourke filed a complaint with the Minnesota Board of Podiatric Medicine, which was referred to the Board's Complaint Resolution Committee (CRC). The CRC essentially agreed with the second podiatrist's opinion. To resolve the complaint, Buckmaster and the CRC entered into an ACA under which Buckmaster agreed to improve his clinical proficiency. The ACA contained neither an admission nor denial of wrongdoing and it included a specific statement that the ACA did not constitute disciplinary action against Buckmaster.

Shortly after the ACA was signed, O'Rourke filed a malpractice action against Buckmaster. Buckmaster moved (prior to the start of trial) to exclude the ACA from evidence on the ground that it was an excludable settlement agreement under Rule 408 of the Minnesota Rules of Evidence.  The trial court denied the motion, and Buckmaster filed an interlocutory appeal in the Minnesota Court of Appeals. On September 10, 2008, the Minnesota Court of Appeals reversed the trial court and held that the corrective action agreement could not be used as evidence in the malpractice suit.

Litigation Center involvement

The Litigation Center joined the Minnesota Medical Association, the American Podiatric Medical Association and the Minnesota Podiatric Medical Association in an amicus curiae brief supporting Buckmaster's position.

View the brief. (PDF, 757KB)

Issue

The issue in this case was whether a physician is required to disclose, in addition to the medical risks, that medical devices to be surgically implanted in a patient’s spine have not received FDA approval for such use.

AMA interest

The AMA supports a reasonable interpretation of a physician’s obligation to obtain a patient’s informed consent.

Case summary

The patient claimed that, because his surgeon did not explain that the FDA had not granted approval for the surgically implanted device, the surgery was performed without his informed consent. Both the trial court and the North Carolina Court of Appeals held that informed consent only requires disclosure of the medical risks: physicians need not discuss the actions or inactions of a government agency, or the implications of such actions or inactions.

The case was appealed to the North Carolina Supreme Court, which affirmed.

Litigation Center involvement

The Litigation Center and the North Carolina Medical Society filed an amicus brief, joined by the American Academy of Orthopedic Surgeons, in support of the physician.

Park v. Wellstar Health System (Ga. S.Ct.)

Issue

The primary issue in this case is whether Georgia’s cap on non-economic damages in medical malpractice cases violates the Equal Protection Clause of the Georgia Constitution.

AMA interest

Medical liability reform is the AMA’s top legislative priority.

Case summary

Cheon Park and his wife, Lynne Park, sued Wellstar Health System, two individual physicians, two group medical practices and another individual for medical malpractice. The plaintiffs alleged that Mr. Park had become a permanent quadriplegic as a result of defendants’ negligent treatment.

The trial court held that the Parks had legal standing to challenge the caps and that the issue of the caps’ constitutionality was ripe for adjudication at the pleading stage. The court then found an equal protection violation, reasoning that the caps discriminated in favor of a specific group of professional defendants. The court also found no “substantial relationship” between the caps and the legislative objective of allowing the medical profession to function effectively. The defendants appealed directly to the Georgia Supreme Court.

The case has settled and the appeal has been withdrawn.

Litigation Center involvement

The Litigation Center, the Medical Association of Georgia, and the American Tort Reform Association planned to submit an amicus brief to the Georgia Supreme Court supporting the defendants and the validity of the caps.

Phelps v. Physicians Insurance Company of Wisconsin, 698 N.W.2d 643 (Wis. S.Ct. 2005)

Issues

The issues in this case are: (1) whether a first year unlicensed medical resident was a “borrowed employee” of the teaching hospital where he cared for patients; and (2) under what circumstances, if any, “bystander” damages are available to a father of a child who died as a result of medical negligence.

AMA interest

The AMA is committed to reducing the incidence and costs of professional liability and supports caps on non-economic damages in medical malpractice cases. Also, the AMA opposes any dilution of the patient-physician relationship.

Case summary

Marlene Phelps, pregnant with twins (one of whom was in a breech position, which would require a Caesarean section delivery) and experiencing episodic bleeding, had been hospitalized at St. Joseph’s Hospital as a high risk obstetrical patient. One of the twins died during childbirth, and the court found that death attributable to the negligence of Mathew Lindemann, M.D., an unlicensed first-year resident.

On an earlier appeal, the Wisconsin Supreme Court remanded the case for a lower court determination of whether Dr. Lindemann was an employee or even a “borrowed employee” of St. Joseph’s Hospital.  if so, he would be protected by a cap on non-economic damages.

On remand, the trial court found that Dr. Lindemann should be deemed a borrowed employee and thus protected by the damages cap. It also awarded Gregory Phelps, the husband of Marlene Phelps damages for the emotional distress he had suffered as a result of his child’s death, even though he had not himself been under Dr. Lindemann’s care. Both of these findings by the trial court were appealed to the Wisconsin Court of Appeals, which found that Dr. Lindemann should not have been deemed a borrowed employee and thus was not covered by the statutory cap on non-economic damages. The Court of Appeals did not analyze the propriety of the bystander damages that had been awarded to Mr. Phelps.Dr. Lindemann’s insurer appealed to the Wisconsin Supreme Court.

Litigation Center involvement

The Litigation Center will join with the Wisconsin Medical Society in an amicus curiae brief supporting the applicability of the damages cap and opposing the applicability of bystander damages liability. The brief was filed on August 29, 2008.  However, the plaintiffs moved to strike that portion of the brief which addressed bystander damages.  Oral argument is scheduled for March 5, 2009.

View the brief. (PDF, 2.59MB)

Rothbart v. Delaware Insurance Guaranty Assoc. (D. Del.)

Issue

The issue in this case was an insurance company’s obligation to provide appropriate coverage (and timely communication regarding such coverage) to an insured physician.

AMA interest

The AMA believes that insurers have a responsibility to provide the appropriate degree of coverage on claims and to communicate timely to insureds regarding such provision of coverage.

Case summary

This was an action for declaratory judgment arising from a claim made by a retired physician, Philip L. Rothbart, M.D., against the Delaware Insurance Guaranty Association (DIGA) for coverage of a medical malpractice/wrongful death lawsuit.

Dr. Rothbart asked DIGA to interpret and confirm the levels of his coverage rights under the DIGA Act. DIGA refused to provide the requested interpretation, presumably until the underlying malpractice/wrongful death suit against Dr. Rothbart reached a stage where DIGA would be required to make some payment to satisfy its statutory obligations. Because Dr. Rothbart believed that this delay prejudiced his ability to defend the malpractice/wrongful death suit effectively, he sued DIGA for a declaratory judgment.

Both the underlying medical malpractice/wrongful death lawsuit and the declaratory judgment lawsuit settled. Pursuant to the agreements, DIGA paid the settlement proceeds to the underlying litigants, and Dr. Rothbart was not required to contribute from his own pocket.

Litigation Center involvement

The Medical Society of Delaware and the Litigation Center each contributed modestly toward Dr. Rothbart’s litigation expenses.

The issue in this case was whether physicians should be required to disclose, in addition to the medical risks, that medical devices to be surgically implanted in a patient’s spine had not received FDA approval for such use.

Southard, a former patient, along with his wife, sued Temple University Hospital and his physicians. He alleged that the defendants, during spinal surgery, implanted pedicle bone screws in his spine without obtaining his consent to the procedure. His basic argument was that he was not advised that the United States Food & Drug Administration had not approved pedicle bone screws for such use, and this omission was material. The trial court entered partial summary judgment against the Southards on this issue, and they appealed.

The appellate court noted that the Food and Drug Act specifically states that it is not intended to limit a physician’s right to use non-FDA approved medical devices in their practices. Moreover, the FDA had formally acknowledged that the use of bone screws in the pedicles of the spine is “considered to be the standard of care by the surgical community.” Furthermore, the court observed that in other cases physicians had not been required to inform their patients of the FDA’s non-approval of pedicle screws for use in spinal surgery. Nevertheless, the court felt that the jury should have been allowed to decide whether, by not disclosing to Southard the FDA’s position on pedicle screws, the physicians had committed a material omission. It therefore reversed the order of summary judgment and remanded the case.

The Pennsylvania Supreme Court granted allocatur on the issue of informed consent. PMS and the Litigation Center filed an amicus brief in support of the physicians.

The PMS/Litigation Center brief argued that the physicians were only obliged to warn Southard of the medical risks of the surgery, which they had done. However, physicians are not lawyers, and Southard had not come to the defendants for legal advice. A bare statement that the FDA had not approved pedicle screws for use in spinal surgery would, standing alone, probably have been misleading and would certainly not have helped reach an understanding of the medical risks of the surgery. Physicians lack the expertise to provide a meaningful explanation of the FDA position or of FDA procedures. A ruling against the physicians would have impaired the general quality of health care, because it would, in some instances, induce physicians to be unduly conservative in their recommendations.

The Pennsylvania Supreme court accepted the physicians’ argument and reversed the intermediate appellate court decision.

Sullivan v. DeJong (Ill. App. Ct. 2003)

Issue

The issue in this case is whether a physician who has been sued for medical malpractice pursuant to the certification of another physician can learn the identity of the physician who certified that he committed the alleged malpractice.

AMA interest

The AMA strives to avoid the expansion of liability theories against physicians, which can lead to abusive malpractice litigation.

Case summary

William Sullivan, D.O. is an emergency room physician. When Mary Weiland was seriously injured in an automobile accident, she was brought to the hospital emergency room and was immediately attended by the hospital’s trauma team, which did not include Dr. Sullivan. Due to various medical complications, the trauma team was unable to insert an intravenous needle in Mrs. Weiland. Because Dr. Sullivan was experienced in obtaining the necessary central venous access, the trauma team asked him to insert an emergency central venous catheter in her. He did this successfully. That was the only procedure he had been asked to perform for Mrs. Weiland. Subsequently, Mrs. Weiland died.

Mrs. Weiland’s estate then brought a wrongful death action against ten osteopathic physicians (including Dr. Sullivan), one allopathic physician (i.e., an M.D.), two nurses, and the hospital. The estate alleged that Dr. Sullivan and the other physicians had failed to (i) diagnose that she had been suffering from internal bleeding, (ii) interpret her CT scan properly, (iii) appreciate the signs and symptoms of shock, and (iv) perform necessary surgery and other treatments relating to her bleeding.

Pursuant to Illinois law, 735 ILCS § 5/2-622, Mrs. Weiland’s estate affixed a statement to the complaint, allegedly signed by an experienced trauma surgeon, which asserted that “a reasonable and meritorious cause exists for filing a suit against [the physicians and the hospital] for failing to appreciate the signs and symptoms of hypovolemic shock, and of internal bleeding, and for failing to surgically repair the bleeding.” Also pursuant to Illinois law, the trauma surgeon’s name was not shown on the report.

The trial court dismissed most of the defendant physicians on motion. The plaintiff’s law firm offered to dismiss Dr. Sullivan voluntarily, without prejudice (i.e., leaving open the possibility of plaintiff filing another suit against him), but Dr. Sullivan refused. He said that he was going to be dismissed with prejudice (i.e., foreclosing the possibility of a similar future lawsuit) or not at all.

Dr. Sullivan then filed an affidavit and a motion to be dismissed from the Weiland case. He stated that, although he had been the hospital emergency physician on duty, Mrs. Weiland was not primarily his patient. Rather, she was considered a “trauma code” patient. Trauma code patients are registered under the trauma service attending physician and are exclusively managed by the trauma team. Upon presentation of the affidavit, the trial court dismissed Dr. Sullivan with prejudice.

Dr. Sullivan, acting as his own attorney, then sued Mrs. Weiland’s lawyer for malicious prosecution. He also sued “Dr. Doe,” the unnamed trauma surgeon. His complaint charged that, had Dr. Doe properly investigated the medical records and the circumstances surrounding Mrs. Weiland’s emergency department care, he would have seen that the allegations raised against Dr. Sullivan and at least four of the other physicians were made without reasonable cause. He also alleged that Dr. Doe’s report had been made in reckless disregard for the truth, and “in bad faith.” According to Dr. Sullivan, an experienced trauma surgeon should have recognized that he was not a part of the trauma team, and that his role in Mrs. Weiland’s care was, under accepted medical practice, limited to the insertion of the intravenous catheter. Further, Dr. Sullivan alleged that had he attempted to make the diagnoses and perform the surgery that Dr. Doe claims he should have provided, it would have interfered with Ms. Weiland’s care.

After he filed his complaint, Dr. Sullivan filed a verified petition for discovery, as part of the same lawsuit. In this petition, he indicated that he had asked Mrs. Weiland’s law firm to disclose Dr. Doe’s identity but the law firm had refused to do so. Mrs. Weiland’s law firm moved to dismiss the complaint and the petition for discovery, and the trial court granted the motion.

Dr. Sullivan appealed. His appellate brief concentrated on his right to learn Dr. Doe’s identity, so that he could ascertain whether Dr. Doe was, in fact, an experienced trauma surgeon and whether Dr. Doe had some basis for his charge that Dr. Sullivan had failed to care properly for Mrs. Weiland.

Mrs. Weiland's former attorney filed an answer brief, and the Illinois Trial Lawyers Association filed an amicus curiae brief opposing Dr. Sullivan. Dr. Sullivan then filed a reply brief.

The Illinois Appellate Court, without hearing oral argument, affirmed the trial court decision against Dr. Sullivan. In an extensive and carefully worded decision, it held that his legal arguments were essentially correct, but he had not been sufficiently specific in his factual statements to the lower court. Thus, Dr. Sullivan was correct in principle, but he lost on a procedural technicality. If the opinion were to be published, it would essentially serve as a blueprint for how Illinois physicians can sue an expert witness who signed a certificate of merit in bad faith. A physician then would be able to use more effectively Dr. Sullivan’s general legal theories in the setting forth of facts.

However, the Illinois Appellate Court issued its order in an unpublished format, so the decision is neither known to the legal or medical community nor citable as precedent in other cases. Dr. Sullivan filed a motion for reconsideration, urging the Appellate Court to publish its order, but that motion was denied.

Litigation Center involvement

The Litigation Center engaged an experienced lawyer to represent Dr. Sullivan in his appeal.

Issue

The issue in this case is whether the Wisconsin Legislature by directing the transfer of $200 million from the Wisconsin Injured Patients and Family Compensation Fund (“the Fund”) to a variety of health programs that have nothing to do with the fund’s purpose of partially paying medical malpractice claims.

AMA interest

The Fund transfer acts as a selective tax on physicians for general revenue purposes. The AMA opposes such taxes.

Case summary

Most physicians in Wisconsin, as well as nurse anesthetists, are required to contribute to the Fund. The Fund is obligated to provide coverage for excess medical malpractice claims (above a cap on amounts directly payable by the providers). On Oct. 26, 2007, the Wisconsin Legislature, by statute, directed that $200 million be transferred from the Fund to various Medicaid-related health care programs, none of which have to do with excess medical malpractice claims.

On Oct. 29, 2007, the Wisconsin Medical Society (“WMS”) sued various state officials to restore the $200 million to the Fund and to prevent further such transfers. The suit contends that the transfer was: (1) a “taking” without just compensation, in violation of the federal and state constitutions, (2) an impairment of contract, in violation of the federal and state constitutions, (3) a common law breach of a statutorily created contract, (4) an invalid tax, in violation of the state constitution, (5) an irrational tax classification, in violation of the federal and state constitutions, (6) a discriminatory tax, in violation of the Equal Protection Clauses of the federal and state constitutions, and (7) a common law breach of statutorily created fiduciary duties.

On December 19, 2008, the trial court entered summary judgment in favor of the state. The court held that all claims other than that asserting a taking of private property for public purposes were barred under the sovereign immunity doctrine. It further held that physicians do not have a property interest in the Fund. The Wisconsin Medical Society plans to appeal

Litigation Center involvement

The Litigation Center has assisted WMS with its litigation expenses.