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Professional Liability

Albany Urology v. Cleveland, 528 S.E.2d 777 (Ga. 2000)

Also under Abusive litigation against physicians and Informed consent

Outcome:    Very favorable

Issue
The issue in this case was whether a physician was required to disclose his cocaine usage to a patient in order to obtain the patient's informed consent to surgery, even though the cocaine usage did not bear on the physician's surgical skills.

AMA interest

The AMA encourages physician self-reporting of substance abuse in order to obtain proper treatment. Furthermore, it strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation.

Case summary

This case arose from allegedly unnecessary surgery performed by a physician who occasionally used cocaine. The surgeon, Timothy S. Trulock, MD, had been using cocaine approximately once a month at the time of the diagnosis and of the surgery, although he had not been using cocaine on days he saw patients. He did not reveal his cocaine usage to his patients, including the patient in this case, William Cleveland. The operation was unsuccessful and exacerbated a condition that might have resolved itself and could have been treated with Vitamin E.

The trial court found that the failure to disclose the cocaine use had not been a material concealment and entered judgment for defendants Dr. Trulock and his employer, Albany Urology Clinic. The plaintiff appealed.

The Georgia Court of Appeals found that the failure to disclose the cocaine use had been a material concealment and reversed the trial court. The court also found the defendants liable for battery. The defendants appealed to the Georgia Supreme Court.

The Georgia Supreme Court reversed the judgment of the court of appeals holding that, without a specific patient inquiry, a physician had no duty to disclose to patients "unspecified life factors" that did not objectively affect the physician's performance.

Litigation Center involvement

The Medical Association of Georgia, supported by the Litigation Center, filed an amicus curiae brief in the Georgia Supreme Court to support the defendants. While deploring illegal use of drugs, the brief argued that a physician's obligation to disclose the medical risks associated with surgery should not be extended to the disclosure of personal issues that do not affect the patient's well being. The patient's right to recover for professional negligence affords him or her adequate redress for any injuries. A requirement that a physician disclose his or her occasional cocaine usage might prejudice the jury and could chill the physician's voluntary efforts to obtain appropriate medical treatment for an unlawful drug habit.

Ambach v. French, 216 P.3d 405 (Wash. 2009)

173 P.3d 941 (Wash. App. 2007)

Outcome:    Very favorable

Issue

The issue in this case is whether an allegation that a physician recommended unnecessary surgeries raised a claim under the Washington Consumer Protection Act (CPA).

AMA interest

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

Case summary

Teresa Ambach sued Harold Graeme French, M.D., alleging that he routinely made fictitious diagnoses, which led to unnecessary surgeries. She asserted claims for medical negligence and for a CPA violation. The trial court granted Dr. French partial summary judgment on the CPA claim, but the Washington Court of Appeals reversed.

Dr. French appealed to the Washington Supreme Court.  The court reversed the Washington Court of Appeals and held for Dr. French.  It found that the increased cost Ms. Ambach paid for surgery instead of alternative treatment was not an injury to "business or property" that would be required under the CPA.

Litigation Center involvement

The Litigation Center and the Washington State Medical Association filed an amicus curiae brief supporting Dr. French and opposing the creation of a malpractice theory based on the CPA.

Supreme Court of the State of Washington brief.

In re: Amendment To The Rules Regulating The Florida Bar, 939 So.2d 1032 (Fla. 2006)

Also under Tort reform

Outcome:    Very unfavorable

Issue

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 percent 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 percent 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.

Supreme Court of Florida memorandum

Arnold v. Lawrence & Memorial Hospital (Conn. S. Ct.)

Also under Abusive litigation against physicians

Outcome:  Neutral

Issue

The issue in this case was whether the parents of a newborn child could recover damages for emotional distress caused by the allegedly negligent medical care of their child. 

AMA interest

The AMA seeks to protect the relationships between patients and their physicians.  It also strives to avoid the expansion of liability theories against physicians, which can lead to abusive litigation. 

Case summary

The plaintiffs had filed a complaint against their son’s physicians and hospital in the federal court in Connecticut, based on negligent medical care of their newborn son.  One count alleged that the parents were personally entitled to damages for the emotional distress they had suffered as a result of the physicians’ failure to recognize and respond properly to their son’s condition.  The defendants argued that Connecticut does not recognize a claim for bystander emotional distress in the context of medical malpractice claims.  Because the Connecticut law on this issue was unclear, the federal court certified the question for review by the Connecticut Supreme Court.

Before the Connecticut Supreme Court could rule, the case settled.

Litigation Center involvement

The Litigation Center filed an amicus curiae brief, arguing against recognition of this claim.  The brief pointed out that allowing this claim would, in various ways, degrade the physician–patient relationship, allowing a bystander’s financial gain to come at the potential expense of the patient’s medical care. 

Connecticut Supreme Court brief

 

Baker v. Hedstrom (New Mex. Ct. App.)

Also under Tort reform

Issues

The issues in this case are whether the New Mexico cap on damages awarded in a medical liability claim is constitutional and whether the word “occurrence” in the New Mexico Medical Malpractice Act refers to the injury suffered by the patient plaintiff or to each act of medical negligence that contributed to that injury.

AMA interest

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

Case summary

Bryanna Baker filed suit, alleging medical malpractice related to her pregnancies, heart attack, and resulting permanent heart damage. The defendants included the three physicians who treated her, Drs. Stephanie Hedstrom, Lee Caruana, and Misbah Zmily. The jury found all three of them liable, and it apportioned Ms. Baker’s damages as follows:

          Dr. Hedstrom          $3,150,000

          Dr. Caruana            $900,000

          Dr. Zmily                $4,275,000

The physicians moved to have the jury verdict reduced pursuant to the New Mexico Medical Malpractice Act, NMSA 1978, § 41-5-6(a), which sets a cap on damages in medical liability suits of $600,000 “per occurrence,” plus “the value of accrued medical care and related benefits.”   Ms. Baker opposed the motion on two grounds. First, she asserted that the cap was unconstitutional, because, according to her, it violated the separation of powers doctrine and the rights to trial by jury, equal protection, and due process. Second, she asserted that, if the cap were deemed constitutional, it had been wrongly applied in this case. She argued that each act of medical negligence was a separate “occurrence,” even if those acts contributed to but a single injury.

The trial judge rejected her unconstitutionality claims, but it agreed with her argument that an “occurrence” under the statute could be defined by each negligent act or omission, rather than by the aggregate injury. It entered judgment against each physician in the amount of $600,000, plus a prorated (according to relative fault) share of the past medical bills and costs.

Both sides have appealed to the New Mexico Court of Appeals.

Litigation Center involvement

The Litigation Center, along with the New Mexico Medical Society, filed two amicus briefs in the Court of Appeals.  The first brief argued that the word “occurrence” in the New Mexico Medical Malpractice Act refers to a single injury, rather than to the various acts of medical negligence that may have contributed to that injury. The  second amicus brief supported the constitutionality of the damages cap.

New Mexico Court of Appeals brief (occurrence issue)

New Mexico Court of Appeals brief (constitutionality issue)

Barbato v. Khetarpal, 2005 Ohio 5219 (Ohio App. 2005)

Also under Abusive litigation against physicians

Outcome:    Very favorable

Issue

The issue in this case was the sustainability of an Ohio physician's $6,000 judgment against a plaintiffs' attorney who had filed a frivolous medical malpractice lawsuit against him.

AMA interest

The AMA opposes abusive litigation against physicians.

Case summary

Dr. Sanjiv Khetarpal, a gastroenterologist, ordered a biopsy of Benjamin Barbato's liver, based on liver problems Mr. Barbato had experienced. Dr. Gerald Hulvat performed the biopsy, during which (unknown to Dr. Hulvat at the time) he perforated Mr. Barbato's colon and gallbladder. Following the biopsy, and before leaving for vacation, Dr. Khetarpal had Mr. Barbato admitted to the hospital for observation. As the night progressed, Mr. Barbato's condition worsened. The next morning, Mr. Barbato's wife telephoned the on-call physician, Dr. Maycon, to advise him that Mr. Barbato was in critical condition. In response, Dr. Maycon ordered tests which disclosed the perforations and probably saved Mr. Barbato's life.

Mr. and Mrs. Barbato filed suit against the hospital and Mr. Barbato's various physicians, including Dr. Maycon. The plaintiffs hired a medical expert, but he refused to opine that Dr. Maycon had made any mistakes in his medical care. Dr. Maycon's counsel then e-mailed the Barbatos' attorney, Catherine Little, requesting that Dr. Maycon be dismissed from the case. Ms. Little responded with a request for a monetary offer from Dr. Maycon in exchange for dismissing him from the case. Subsequently, Dr. Maycon and his gastroenterology group moved for sanctions. Approximately eight months later, another (additional) counsel for the plaintiffs voluntarily dismissed Dr. Maycon from the case.

The case proceeded to a jury trial that resulted in a verdict for the remaining defendants. Dr. Maycon and his gastroenterology group then moved for an order on the sanctions motion. After a hearing, the trial court ordered sanctions against Ms. Little in the amount of $6,000, which was the amount Dr. Maycon claimed as compensation for the time he had spent in deposition preparation and attendance and trial preparation.

The trial court's award to Dr. Maycon was appealed. Prior to oral argument on that appeal, however, Ms. Little advised the appellate court that she would not participate in that argument because she had allegedly received threatening mail and phone calls from people claiming to be members of the Ohio medical community. She claimed to be in fear for her own safety. Oral argument was heard without Ms. Little's presence, and the appellate court affirmed the award of damages against Ms. Little for filing a frivolous lawsuit.

Litigation Center involvement


The Litigation Center, along with the Ohio State Medical Association, filed an amicus curiae brief in support of Dr. Maycon and the judgment awarded him.

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

Also under Abusive litigation against physicians

Outcome:    Neutral

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.

Minnesota Supreme Court brief

Chan v. Curran (Cal. Ct.App.)

Also under Tort reform

Issue

The issue in this case is whether MICRA’s (Medical Injury Compensation Reform Act) cap on noneconomic damages, Cal. Civ. Code § 3333.2, is constitutional.

AMA interest

Medical liability is the AMA’s highest legislative priority.

Case summary

Michele Woo underwent mitral valve replacement surgery. Following the surgery, she was prescribed Coumadin to prevent her from developing blood clots around her new mechanical mitral valve. She was discharged from the hospital and into the care of Peter Curran, M.D., a cardiologist, who was to monitor the anticoagulant effect of the Coumadin.

Sebsequently, Ms. Woo was admitted to the hospital emergency department. She died shortly thereafter, as a result of hemorrhagic bleeding.

Jessica Chan, Ms. Woo’s daughter, sued Dr. Curran for wrongful death. She claimed that Dr. Curran’s care was substandard, that his inadequate care caused her mother’s death, and that she (Jessica Chan) was injured as a consequence.

The case was heard before a jury, which found Dr. Curran liable to Ms. Chan. In addition to her economic losses, it awarded her non-economic damages of $1,000,000. Following the trial, Dr. Curran filed a motion to reduce the non-economic damages to the MICRA cap of $250,000. In opposition to Dr. Curran’s post-trial motion to reduce the non-economic damages, Ms. Chan claimed the MICRA cap was unconstitutional.

The trial court upheld the $250,000 MICRA cap on non-economic damages. Ms. Chan appealed.

Litigation Center involvement

The Litigation Center, along with the California Medical Association, filed an amicus brief supporting the MICRA cap on non-economic damages.

California Court of Appeal brief

Delekta v. Bischoff (5th Dist. Ct., Mont.)

Also under Tort reform

Outcome:     Unfavorable

Issue

The issue in this case was whether Montana’s statutory cap on non-economic damages in medical liability lawsuits was constitutional.

AMA interest

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

Litigation Center involvement

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.

Edwards v. The Sunrise Ophthalmology ASC, LLC (Fla. S.Ct.)

Also under Affidavit of merit and Expert witnesses

Issue

The issue in this case is whether a specialist in infectious diseases was qualified under the Florida Malpractice Law, FL Stats. § 766.102, to testify as an expert witness in a suit brought against an ophthalmologist for medical negligence.

AMA interest

The AMA believes that expert witnesses in medical liability cases should have education, training, and experience or board certification in the same field as a defendant specialist physician.

Case summary

Marianne Edwards underwent plastic surgery on her eyelid.  She subsequently contracted a bacterial infection in her eyelid, where the surgery had been performed.  This resulted in her having to undergo additional surgery and suffering disfigurement.

Ms. Edwards filed a medical malpractice suit against, inter alia, her ophthalmologist, Gil A. Epstein, MD and The Sunrise Ophthalmology ASC, LLC.  She contended that Dr. Epstein had breached the standard of care, because he had failed to use proper sterilization techniques during the surgery, and this caused the infection.  Ms. Edwards proffered an affidavit from an infectious disease doctor to support her contention.

Dr. Epstein challenged the sufficiency of the affidavit through a motion to dismiss.  He pointed out that § 766.102 requires that expert testimony offered against a specialist must be from an expert who either (a) specializes in a similar specialty as the defendant physician or (b) evaluates, diagnoses, or treats the medical condition that is the subject of the claim.  Because he was an ophthalmologist, which is a distinct specialty from that of the infectious disease expert, Dr. Epstein argued that Ms. Edwards’s affidavit was insufficient.

The trial court agreed with Dr. Epstein and the complaint was dismissed as to him.  Ms. Edwards appealed to the Florida District Court of Appeal.  By a split decision, the District Court of Appeal affirmed.  The case is now on appeal to the Florida Supreme Court.

Litigation Center involvement

The Litigation Center, along with the Florida Medical Association filed an amicus brief, which will argued against allowing the expert witness testimony of the infectious disease physician.

Florida Supreme Court brief

 

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

Also under Tort reform

Outcome:    Favorable

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.

Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014)

642 F.3d 944 (11th Cir. 2011)

Also under Tort Reform

Outcome:    Very unfavorable

Issue

The issue in this case is whether the Florida cap on non-economic damages was valid under the Florida Constitution.

AMA interest

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

Case summary

Michelle McCall was an unmarried, 20 year old pregnant woman who was dependent on her parents, one or both of whom were serving in the United States Air Force.  Because of her dependency, the Air Force was obliged to provide her with medical care. 

During her last trimester, McCall suffered from high blood pressure and severe preeclampsia.  Her medical condition required that labor be induced immediately.  She was treated by family practice physicians, although her condition required the services of an obstetrician.  Following various complications, the family practice physicians helped her deliver a healthy baby boy.

After the delivery, the family practice physicians attempted to extract the placenta by themselves, but there were further complications and they called an obstetrician for assistance.  As the obstetrician attempted to repair severe vaginal lacerations, McCall’s blood pressure dropped.  Ultimately, McCall died from shock and cardiac arrest as a result of blood loss.

McCall’s estate, as well as her newborn child (represented by his biological father) and each of her parents, sued the United States under the Federal Tort Claims Act, (FTCA).  The FTCA incorporated the law of the state where the tort occurred -- here, Florida -- as the law of decision.  The plaintiffs claimed both economic and non-economic damages. 

After a two-day bench trial, the federal district court found the United States liable, because its employees’ negligence had proximately caused McCall’s death.  The court also found that under the Florida Wrongful Death Act a minor child of the deceased may recover damages for mental pain and suffering, and the parents of a child under the age of 25 may similarly recover damages for their mental pain and suffering.  It further found that the economic damages came to $980,462.40, the non-economic damages totaled $2 million ($500,000 to McCall’s newborn son and $750,000 for each of her parents). 

The trial court noted that Florida law caps the total recovery of non-economic damages among all plaintiffs at $1 million.  The plaintiffs asserted that the statutory cap was invalid under both the Florida and United States Constitutions, but the court rejected those arguments.  Based on the statutory cap, the final judgment awarded non-economic damages of $1 million, aggregated among all the plaintiffs.

The plaintiffs then appealed to the United States Court of Appeals for the Eleventh Circuit.  The Eleventh Circuit held that the cap was valid under the Equal Protection Clause of the Fourteenth Amendment and the Takings Clause of the Fifth Amendment of the U.S. Constitution.  It also held the cap valid under the Takings Clause of the Florida Constitution.  However, it declined to rule on several remaining challenges under the Florida Constitution, holding that Florida law was unsettled on these issues.  It certified the remaining challenges for resolution to the Florida Supreme Court. 

The Florida Supreme Court accepted jurisdiction to decide the challenges. On March 13, 2014, the Supreme Court held that the limit on noneconomic damages in medical negligence actions, as applied in wrongful death cases involving multiple claimants, violated the Equal Protection Clause of the Florida Constitution.

AMA/Litigation Center involvement

The AMA and the Litigation Center, along with several specialty medical societies and other organizations, filed an amicus brief to support the statutory cap.

Florida Supreme Court brief

Etkind v. Suarez, 519 S.E. 2d 210 (Ga. 1999)

Also under Abusive litigation against physicians

Outcome:    Very favorable

Issue

The issue in this case was whether Georgia should recognize a cause of action for “wrongful birth.”

AMA interest

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

Case summary

Ms. Etkind gave birth to a child afflicted with Down Syndrome.  She contended that Dr. Suarez had negligently failed to perform the necessary medical tests to evaluate potential birth defects, and she sued him for medical malpractice.  The trial court entered judgment for Dr. Suarez on the pleadings, holding that Georgia does not recognize an action for “wrongful birth.”  The case was appealed to the Georgia Court of Appeals, which affirmed.  The case was then appealed to the Georgia Supreme Court.

The Georgia Supreme Court ruled in Dr. Suarez’s favor, affirming both the trial court and the Court of Appeals.

Litigation Center involvement

The Litigation Center, along with the Medical Association of Georgia, filed a brief in the Georgia Supreme Court to support Dr. Suarez.  The brief argued that a child should not be deemed a compensable injury, no matter what the child’s disabilities.  It also asserted that an action for wrongful birth would distort the ordinary physician-patient relationship.

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

Also under Tort reform

Outcome:    Very favorable

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 Alaska tort reform law was 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. 2005)

Also under Tort reform

Outcome:    Very unfavorable

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.

Wisconsin Supreme Court brief.

Franks v. Bowers, 134 S.Ct. 683 (2013)

116 So.3d 1240 (Fla. 2013)

Also under Arbitration

Outcome:    Unfavorable

Issue

The issue in this case was whether a contract between a surgery practice and its patient was valid if the contract required arbitration of disputes concerning the medical services provided and limited the non-economic damages the patient could potentially recover in the event of malpractice.

AMA interest

The AMA believes physicians and patients should be free to agree to pre-dispute binding arbitration for non-emergency medical treatment.

Case summary

Joseph Franks sought surgical treatment from Dr. Gary J. Bowers and Dr. Bowers’ employer, North Florida Surgeons, P.A. Mr. Franks was asked to sign a four page document entitled “Financial Agreement,” and he did. The Financial Agreement provided, inter alia, that (a) any disputes between the parties would be resolved by arbitration, and (b) any non-economic damages arising from medical negligence would be capped at $250,000.

Four months after the signing of the Financial Agreement, Dr. Bowers performed the surgery.  Mr. Franks was then discharged to his home. Two days later, he experienced pain and went to a hospital emergency room. A CT scan revealed a large retroperitoneal hematoma at the operative site due to the external iliac vein having been lacerated during the surgery. Two weeks later, he died.

Donna Franks, Mr. Franks’ widow, sued for wrongful death, alleging medical malpractice. Based on the Financial Agreement, the defendants moved to compel arbitration. Their motion was granted. Mrs. Franks appealed to the Florida First District Court of Appeal, contending the Financial Agreement was contrary to public policy and was unconscionable. The District Court of Appeal disagreed with Mrs. Franks and affirmed the trial court. Mrs. Franks then appealed to the Florida Supreme Court.

The Florida Supreme Court noted that the Florida statutes provide for arbitration of medical malpractice disputes on agreement of the parties and for limitation of noneconomic damages (either under arbitration or in a court of law), but the Financial Agreement did not exactly track the remedies available under Florida law.   According to the Florida Supreme Court, the Financial Agreement contravened the legislative scheme that was to apply to medical malpractice claims and was therefore invalid. Furthermore, the court found the arbitration provision and the limitation of damages provisions were not severable, so the court concluded the Financial Agreement had to be voided in its entirety. The court also found that neither the Federal Arbitration Act (FAA) nor a parallel Florida statute, the Florida Arbitration Code, required arbitration. The court specifically declined to address whether the Financial Agreement was unconscionable. Two Florida Supreme Court justices dissented.

The defendants petitioned the United States Supreme Court for certiorari, but certiorari was denied on December 2, 2013.

Litigation Center involvement

The Litigation Center offered to contribute toward the cost of the certiorari petition.

Gavello v. Millman, 2013 Cal. App. Unpub. LEXIS 4826 (Cal. Ct.App. 2013)

Also under Tort reform

Outcome:    Very favorable

Issue

The issue in this case was whether MICRA’s (Medical Injury Compensation Reform Act) cap on noneconomic damages, Cal. Civ. Code § 3333.2, violated the California constitutional guarantees of trial by jury, separation of powers, and equal protection of the laws.

AMA interest

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

Case summary

The defendant physician, an anesthesiologist, allegedly administered anesthesia negligently during a surgical procedure. The defendant physician also allegedly prematurely left during the acute recovery period without providing post-operative orders. As a result, the patient went into respiratory arrest and died.

Following a trial, the jury found that the plaintiff has suffered $1 million in noneconomic damages. On motion of the defendant, this award was reduced to $250,000 to conform to the MICRA damages cap, notwithstanding the plaintiff’s contention that the cap is unconstitutional.

The plaintiff appealed the constitutionality issue.  The California Court of Appeal affirmed, finding that the California Supreme Court had previously rejected the challenges raised against MICRA's constitutionality.

Litigation Center involvement

The Litigation Center, along with the California Medical Association, filed an amicus brief supporting the MICRA cap on noneconomic damages.

California Court of Appeal brief

Geesaman v. St. Rita's Medical Center, 124 OhioSt.3d 1472 (Ohio 2010)

Also under Loss of Chance

Outcome:    Unfavorable

Issue

The issue in this case was whether the trial court properly refused a jury instruction that would have allowed liability under a "loss-of-chance" theory of recovery (more properly, a "loss of less-than-even chance" theory of recovery) in a medical liability suit.

AMA interest

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

Case summary

Jeffrey Geesaman sought emergency medical care at St. Rita's Medical Center.  He had been experiencing dizziness, loss of balance, slurred speech, vomiting, and problems with his vision.  He also indicated that his mother had died of a stroke at age 45.

The attending emergency physician suspected that Mr. Geesaman might have suffered a stroke.  He consulted with other physicians, ordered a number of medical tests, including a brain MRI, and performed his own examination.  Jon Cox, D.O., a neurologist, read the MRI and found it normal.  Based in part on Dr. Cox's reading of the MRI, the various physicians ultimately concluded that Mr. Geesaman had not had a stroke.  Several days later, they discharged him from the hospital with five prescriptions and detailed treatment instructions.  However, they did not advise him to take aspirin or another anti-coagulant.

Three days later, Mr. Geesaman returned to the St. Rita's emergency room.  Further tests were conducted, and at this point it became clear that he had had a stroke.  Mr. Geesaman's treating doctors also concluded that the first MRI had shown that he had had a stroke prior to his earlier visit, but Dr. Cox had misread the results.  As a result of his strokes, Mr. Geesaman suffered brain damage, leaving him permanently disabled.

Mr. Geesaman and his wife then sued St. Rita's and various physicians, including Dr. Cox.  During discovery, Dr. Cox admitted that he had breached the standard of care by misreading the MRI.  Prior to the trial, Dr. Cox filed a motion in limine asking that the Geesamans be prohibited from introducing evidence or arguing to the jury as to a loss-of-chance or loss of a less-than-even chance of recovery, and the trial court granted this motion.

During the trial, the evidence showed that even if Dr. Cox had read the MRI correctly and Mr. Geesaman had been correctly diagnosed and treated for stroke on his first emergency visit, he would still probably have suffered from the second stroke.  The Geesamans tendered a jury instruction that would have allowed the jury to find liability against Dr. Cox, because his negligence had caused Mr. Geesaman to lose the less-than-even chance of avoiding the second stroke.  However, the trial court rejected that instruction.

The jury returned a verdict in favor of all the defendants, including Dr. Cox.  They found that his negligence, although conceded at trial, had not proximately caused injury to Mr. Geesaman.  The Geesamans appealed the judgments in favor of Dr. Cox and one of the co-defendant physicians.  On appeal, the Geesamans claimed that the trial court erred by refusing to allow evidence of or a jury instruction concerning a loss-of-chance theory of recovery.  The Court of Appeals agreed with the Geesamans, reversed the judgment and ordered that the case be remanded.

Dr. Cox petitioned the Ohio Supreme Court for discretionary review, and the Ohio Supreme Court granted his petition.  Oral argument was heard on October 12, 2010.

On December 9, 2010, the Supreme Court sua sponte dismissed the appeal, finding that its prior decision to grant discretionary review had been improvidently granted.

Litigation Center involvement

The Litigation Center, along with the Ohio State Medical Association, filed an amicus curiae brief asking the Ohio Supreme Court to grant discretionary review.  The Litigation Center and the OSMA also filed an amicus brief on the merits of the case.

Ohio Supreme Court brief supporting the petition for discretionary review.

Ohio Supreme Court brief on the merits.

Gliemmo v. Cousineau, 694 S.E.2d 75 (Ga. 2010)

Outcome:   Very favorable

Issue

This case examined the constitutionality of a Georgia statute that absolved physicians and others who provide emergency medical services of liability, absent a showing, by clear and convincing evidence, of gross negligence. 

AMA interest

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

Case summary

O.C.G.A. § 51-1-29.5 provides: "In an action .... arising out of the provision of emergency medical care in a hospital emergency department [or similar setting] ... no physician or health care provider shall be held liable unless it is proven by clear and convincing evidence that the physician or health care provider's actions showed gross negligence."

Carol and Robert Gliemmo sued Mark D. Cousineau, M.D., Emergency Medical Specialists of Columbus, P.C., and St. Francis Hospital for medical negligence involving emergency room care.  The defendants raised O.C.G.A. § 51-1-29.5 as a defense.  The Gliemmos contested the statute's constitutional validity, asserting: (1) the gross negligence standard was vague and in conflict with another Georgia statute that requires "a reasonable degree of care and skill" in medical malpractice actions; (2) the statute denied similarly situated plaintiffs equal protection under the law; (3) the bill under which the statute was promulgated violated the Georgia Constitution's "one subject rule"; and (4) the statute was an unconstitutional special law.

By a split decision, the Georgia Supreme Court found the immunity statute constitutional.

Litigation Center involvement

The Litigation Center, along with the Medical Association of Georgia, filed an amicus curiae brief in support of the statute.

Georgia Supreme Court brief.

Grove v. PeaceHealth St. Joseph Hospital (Wash. S.Ct.)

Also under Abusive litigation against physicians

Issue

The issue in this case is whether a hospital can be found liable for medical malpractice if the evidence fails to identify one or more individual health care providers who were medically negligent and whose negligence could be attributed to the hospital.

AMA interest

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

Case summary

Raymond Grove underwent cardiac surgery at PeaceHealth St. Joseph Medical Center, after which he developed a number of complications. Among these was “compartment syndrome,” which is a condition that can develop from a long surgery. Grove’s compartment syndrome was not detected early, and he suffered permanent injury to his left leg.

Grove sued the hospital for medical malpractice, along with two of his physicians. Testimony from both sides indicated that a “team” of physicians, physician assistants, nurses, and ancillary staff had cared for Grove. Grove’s expert testified that the medical care that was provided fell below acceptable standards because Grove had not been properly monitored. A jury found that the hospital has been negligent and awarded Grove $583,000 in damages.

The hospital then moved for judgment in its favor, notwithstanding the verdict. It argued that under the Washington law of medical malpractice liability must be premised on the negligence of a specific individual. Since no individual had been found negligent, the hospital could not be liable. The trial judge accepted this argument and entered judgment for the hospital.

Grove appealed to the Washington Court of Appeals. The Court of Appeals observed that medical malpractice in Washington State is a statutory cause of action. Under the statute, liability can be found only if “[t]he health care provider failed to exercise that degree of care, skill, and learning expected of a reasonably prudent health care provider at that time in the profession or class to which he or she belongs.” RCW 7.70.040. A “team” of persons would not be considered a health care provider under this provision and Grove did not identify a specific individual who failed to meet the necessary standard of care. Therefore, the Court of Appeals affirmed the trial court decision.

Grove appealed to the Washington Supreme Court, where briefing is underway.

Litigation Center involvement

The Litigation Center will make a financial contribution towards an amicus brief filed by the Washington State Medical Association.

WSMA amicus brief

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

Also under Abusive litigation against physicians, Clinical trials, and Informed consent

Outcome:     Very favorable

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.

United States Court of Appeals for the First Circuit brief.

Ho v. Frye, 880 N.E.2d 1192 (Ind. 2008)

Outcome:    Very favorable

Issue

The issue in this case was 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 in favor of Dr. Ho. 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.

Indiana Supreme Court principal brief

Indiana Supreme Court reply brief

Hughes v. PeaceHealth, 344 Ore. 142 (Or. 2008)

Also under Tort reform

Outcome:    Very favorable

Issue

The issue in this case was whether an Oregon law that limited ("caps") non-economic damages in a wrongful death case arising from medical malpractice was constitutional.

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 bodily injury 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 violated the constitutional right to a "remedy by due course of law" and the constitutional right to a trial by jury.

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.

Oregon Supreme Court brief

Hughes v. Pham, 2014 Cal. App. Unpub. LEXIS 5969 (Cal. Ct.App. 2014)

Also under Tort Reform

Outcome:    Very favorable

Issue

The issue in this case is whether MICRA’s (Medical Injury Compensation Reform Act) cap on noneconomic damages, Cal. Civ. Code § 3333.2, violates the California constitutional guarantees of trial by jury, separation of powers, and equal protection of the laws.

AMA interest

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

Case summary

Trent Hughes suffered a spinal cord injury as a result of a motor vehicle accident.  He was transferred to a “level one trauma facility.”  The neurosurgeon on call, Christopher Pham, DO, was summoned to the emergency department.  Allegedly, when Hughes reached the hospital his spinal cord was only partially severed, and thus he still had sensation and movement in his body below the injury.  Furthermore, his medical condition was stable, and so he could have undergone surgery.  However, his condition was sufficiently dire as to require that the surgery be initiated immediately.

According to Hughes, Dr. Pham did not immediately report to the emergency department, he did not perform a comprehensive neurological evaluation, and he waited two days before actually performing the surgery.  As a result, the incomplete spinal cord injury progressed to a complete severing and Hughes lost all sensation and motor function in his body below the injury.  Hughes sued Dr. Pham for medical negligence.  Hughes’ wife also sued, for loss of consortium.

A jury found Dr. Pham liable and awarded Hughes economic losses of $17.225 million and noneconomic losses of $2.75 million.  It also awarded Mrs. Hughes $1 million for loss of consortium.  Dr. Pham moved to reduce the award of noneconomic damages and the award for loss of consortium to $250,000 based on the MICRA cap.  Over the Hughes’s opposition, the trial court reduced the noneconomic damages and the loss of consortium damages.

The Hughes’s appealed to the California Court of Appeal.  They contended that the cap violated their constitutional right to trial by jury, equal protection, and guarantee of separation of powers.  On August 22, 2014, the Court of Appeal, in an unpublished decision, upheld the constitutionality of MICRA.

Litigation Center involvement

The Litigation Center, along with the California Medical Association, filed an amicus brief supporting the MICRA cap on noneconomic damages.

California Court of Appeal brief

Hui v. Castenada, 180 S.Ct. 1845 (2010)

Also under Federal Tort Claims Act and Public health service

Outcome:    Very favorable

Issue

The issue in this case was whether the Federal Tort Claims Act, 42 U.S.C. § 233(a) (FTCA), immunizes Public Health Service (PHS) officers and employees from legal liability for “constitutional torts.”

AMA interest

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

Case summary

Yanira Castaneda, an alien, was held in various correctional facilities on account of his repeated criminal activities.  While he was incarcerated at one of these facilities, PHS, a division of the United States Department of Health and Human Services, was responsible for his medical care.  Following his complaints that he was in dire need of medical attention, Castaneda died of penile cancer.  His estate sued the United States and various government officials, alleging inadequate treatment.  Among those sued were two PHS employees, Esther Hui, MD and Stephen Gonsalves (not a physician). 

The FTCA provides for compensation from the United States for personal injuries relating to “medical, surgical, dental, or related functions.”  It precludes claims against “any commissioned officer or employee of [PHS] while acting within the scope of his office or employment” for such injuries.  Based on this law, the defendants moved to dismiss Castaneda’s suit.  The trial court denied the motion, and the case was then appealed to the United States Court of Appeals for the Ninth Circuit.

The Ninth Circuit recognized that the FTCA precludes lawsuits against PHS employees for ordinary medical negligence.  However, it found that Castaneda’s estate had alleged something more.  Specifically, the estate had alleged “deliberate indifference to serious medical needs,” which the Ninth Circuit characterized as “a constitutional tort.”  It held that the FTCA does not provide immunity from such constitutional torts, and it affirmed the trial court. 

The case was then appealed to the Supreme Court, which reversed.  The Court further held that the FTCA established the exclusive remedy for tort claims arising against PHS officers in the performance of their duties.

AMA involvement

The AMA, along with the American Academy of Family Physicians, the Commissioned Officers Association of the United States Public Health Service, and the Uniformed Services Academy of Family Physicians, filed an amicus curiae brief to argue that the FTCA should be interpreted to provide Hui and Gonsalves with immunity from constitutional torts.

United States Supreme Court brief

Jeffs v. West, 275 P.3d 228(Utah 2012)

Also under Abusive litigation against physicians

Outcome:    Very unfavorable

Issue

The issue in this case was whether health care providers owe a duty to their patients' children, which can be breached through inappropriate care to their patients.

AMA interest

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

Case summary

According to the complaint filed in this lawsuit, a patient was treated for psychiatric problems at a medical clinic.  He was seen by an advanced family nurse practitioner, who prescribed a cocktail of seven psychotropic drugs, including stimulants, tranquilizers, antidepressants and steroids.  Although Utah law requires that a physician must supervise and consult with a nurse practitioner before prescribing drugs of this nature, the physician in charge of the clinic neither supervised nor consulted with the nurse practitioner, and he failed to monitor the nurse practitioner’s treatment of the patient.

During his visits to the clinic, the patient displayed “toxic side effects” from the combined medications.  Furthermore, he advised the nurse practitioner that he was having marital problems and his wife had had a legal restraining order entered against him.  However, the nurse practitioner continued to prescribe the drug cocktail without consulting the supervising physician.  Under the circumstances, continuation of the drug cocktail was medically inappropriate.

Ultimately, the patient shot and killed his wife in a church parking lot, in daylight and in front of several witnesses.  Within two hours of the shooting, the patient turned himself in to the police.  Blood toxicology reports showed that the patient was within the prescribed ranges of all his medications and he had no illicit substances in his blood stream at the time of the shooting.  Allegedly, a causal factor in the shooting was the administration of the drug cocktail and the failure of the nurse practitioner, the supervising physician, and the clinic to provide alternative psychiatric care.  The patient subsequently pleaded guilty to and was convicted of murder.

The patient’s minor children (who were also the victim’s children), through their guardian, sued the nurse practitioner, the supervising physician, and the clinic.  The defendants moved to dismiss, asserting that their legal duty was solely to the patient and not the children.  The trial court granted the defendants’ motion, and the children appealed directly to the Utah Supreme Court.  The primary legal question on appeal was whether the defendants owed a common law duty to the children to provide proper medical care to their father. 

On February 28, 2012, the Utah Supreme Court found that the medical care providers did owe a duty of care to their patients’ children.  The Court emphasized that, under the pleadings, the defendants’ affirmative actions of misprescribing medicine had caused their patient’s psychotic reaction, and the defendants should be responsible for the injury they had caused.  The case was reversed and remanded.

Litigation Center involvement

The Litigation Center, along with the Utah Medical Association and other health care organizations, filed an amicus curiae brief, arguing that physicians should not owe a duty to their patients' children on account of the medical care the physicians provide to their patients.

Utah Supreme Court brief

Klotz v. St. Anthony's Medical Center, 311 S.W.3d 752 (Mo. 2010)

Also under Tort reform

Outcome:    Unfavorable

Issue

The primary issue in this case was whether the Missouri cap on non-economic damages in medical malpractice suits was constitutional.

AMA Interest

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

Case Summary

James Klotz sued St. Anthony's Medical Center, claiming that he had been injured through medical malpractice while hospitalized for a heart attack.  He alleged that an intravenous catheter had been attended to improperly.  As a result, he claimed to have suffered a staph infection, which was exacerbated when his heart surgeon installed a pacemaker.  Unfortunately, he lost his right leg, part of his left foot, a kidney, and some of his hearing.  The complaint included a loss of consortium claim for Mr. Klotz's wife, Mary Klotz. 

After the Klotzes filed their suit, the Missouri statutes were amended to impose a cap on non-economic damages in medical malpractice suits.  Subsequently, the Klotzes added, as additional defendants, Mr. Klotz's cardiac surgeon, Michael L. Shapiro, M.D., and Dr. Shapiro's medical group, Metro Heart Group of St. Louis (MHG).

The case was tried to a jury, which awarded non-economic damages to Mr. Klotz of $760,000 and non-economic damages to Mrs. Klotz of $329,000.  The defendants moved to have the verdict reduced, pursuant to the statutory cap.  The trial court then had to decide whether to apply the revised version of the statute to some, all, or none of the defendants.

The court primarily focused on the timing issue.  After considering the filing dates against the various defendants, it held that the statutory cap applied to Dr. Shapiro and MHG but not to St. Anthony's.  It also considered, and rejected, an argument that the caps were unconstitutional as being retrospective legislation.  Finally, the court noted that the plaintiffs had asserted several other constitutional arguments against the damage cap, and it rejected these as well.  The court reduced the non-economic damages that would otherwise have been awarded against Dr. Shapiro and MHG by approximately $600,000.

The Klotzes and St. Anthony's appealed directly to the Missouri Supreme Court.  The Missouri Supreme Court reversed, finding the damages cap unconstitutional to the extent it applied retrospectively.  The majority of the court did not reach the issue of whether the cap might be unconstitutional on broader grounds.  However, two of the justices submitted concurring opinions, in which they maintained that the cap should have been found unconstitutional as a violation of the right of trial by jury or the right to equal protection of the laws.

Litigation Center Involvement

The Litigation Center and the Missouri State Medical Association filed an amicus curiae brief in the Missouri Supreme Court.

Missouri Supreme Court brief

Lebron v. Gottlieb Memorial Hospital, 930 N.E. 895 (Ill. 2010)

Also under Tort reform

Outcome:    Very unfavorable

Issue
The principal issue on appeal in this case was 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 the entire Illinois Tort Reform law was void, because it included the inseverability clause.

The trial court declared the non-economic damages cap unconstitutional under the Separation of Powers Clause of the Illinois Constitution and also declared the comprehensive legislation that included the cap invalid in its entirety in accordance with the inseverability clause.

The defendants appealed directly to the Illinois Supreme Court, which affirmed by a split decision.  The Supreme Court agreed with the "legislative remittitur" theory of the lower court and found that the tort reform law violated the Separation of Powers prohibition in the Illinois Constitution.

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.

Supreme Court of Illinois brief 

Lora v. Universal Health Services (Cal. App., 2nd Dist.)

Also under Tort reform

Issue

The issue in this case is whether MICRA’s (Medical Injury Compensation Reform Act) cap on noneconomic damages, Cal. Civ. Code § 3333.2, is constitutional.

AMA interest

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

Case summary

Dioresly Lora, then 24 years old, was hospitalized at Palmdale Regional Medical Center on account of an asthma attack. While in a telemetry monitoring unit, she suffered cardiorespiratory arrest and was discovered with no pulse or blood pressure. After she was administered CPR, she was transferred to an intensive care unit. She became cognitively impaired and tracheostomy dependent.

Lora sued Universal Health Services, the owner and operator of Palmdale Regional Medical Center. Following a jury trial, the hospital was found liable. Not counting non-economic losses, the damages came to over $18 million. In addition, the jury found non-economic damages of slightly over $3 million.

The hospital filed a post-trial motion to reduce the non-economic damages to $250,000, pursuant to MICRA. Lora opposed the motion, arguing, in part, that the MICRA cap violated the right of trial by jury. She further argued that the cap violated equal protection, in part because inflation had eroded the original amount of compensation.

The trial court granted the motion to reduce the non-economic damages. Lora has appealed to the California Court of Appeal.

Litigation Center involvement

The Litigation Center, along with the California Medical Association, will file an amicus brief supporting the MICRA cap on noneconomic damages.

Loudin v. Radiology & Imaging Services, Inc., 948 N.E.2d 944 (Ohio 2011)

Also under Tort Reform

Outcome:    Favorable

Issue

The issue in this case was whether a separate claim of negligent infliction of emotional distress could be asserted when the plaintiff’s injury arose out of medical malpractice.

AMA interest

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

Case summary

Lonna Loudin had a mammogram that her radiologist, Richard Patterson, M.D., interpreted as normal.  One year later, she felt a lump in her breast, and she had another mammogram.  The x-rays disclosed a “mass” that was diagnosed as “highly suggestive of malignancy.”  A subsequent pathology report and other medical tests indicated she had “invasive carcinoma,” which had spread to two of her lymph nodes.  As a result, she underwent surgery, chemotherapy, and hormonal drug treatments.

After reexaming Ms. Loudin’s second mammogram x-rays, Dr. Patterson admitted that the mass found in the second set of x-rays could have been seen in earlier x-rays, and she had had breast cancer at that time.  Ms. Loudin retained an oncologist, who opined that the cancer had grown since the first x-ray and that, had it been caught earlier, it would not have spread to her lymph nodes.

Ms. Loudin sued Dr. Patterson and Radiology & Imaging Services, Inc., his employer.  She alleged claims of negligent infliction of emotional distress, medical malpractice, respondeat superior, and negligent supervision.  She alleged that as a result of the delay in the diagnosis, she experienced “pain, suffering, mental anguish and emotional distress as a result of the loss of chance of a better outcome, including fear of an increased risk of recurrence of cancer.”

The defendants asserted that Dr. Patterson had not violated the standard of care by failing to detect the tumor earlier and, even if he had done so, it would not have changed Ms. Loudin’s diagnosis, treatment, or outcome.  The trial court granted summary judgment for the defendants.  Ms. Loudin then appealed to the Ohio Court of Appeals.

The Court of Appeals focused primarily on the claim of negligent infliction of emotional distress.  It found Ms. Loudin’s fear of cancer was a fear of a substantial life threatening peril due to the growth of the tumor.  It reversed the summary judgment that had been entered against her.  The case was then appealed to the Ohio Supreme Court.

The Ohio Supreme Court affirmed.  In its decision, the court stated that Ms. Loudin would be entitled to seek recovery for her emotional distress as part of her claim for medical malpractice, but she could not add a separate count premised solely on negligent infliction of emotional distress.

Litigation Center involvement

The Litigation Center, along with the Ohio State Medical Association, filed an amicus brief arguing that, if the negligent infliction of mental distress count were to stand, Ohio’s tort reforms, intended to protect the medical profession in professional liability actions, would be undermined.

Ohio Supreme Court brief

McLeod v. Mt. Sinai Medical Center, 876 N.E.2d 1201 (Ohio 2007)

Also under Abusive litigation against physicians

Outcome:    Very favorable

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 summary
In 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 involvement

The 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.

Ohio Supreme Court brief

 

MacDonald v. City Hospital, 715 S.E.2d 405 (W. Va. 2011)

Also under Tort Reform

Outcome:    Very favorable

Issue

The issue in this case was whether the West Virginia statutory limitation on noneconomic damages was constitutional.

AMA interest

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

Case summary

James MacDonald, the recipient of a kidney transplant, incurred pneumonia.  He was admitted to City Hospital under the care of Sayeed Ahmed, M.D., an internist.  Mr. MacDonald advised Dr. Ahmed and City Hospital that he was taking various medications on account of the transplant.  Without ordering blood tests, Dr. Ahmed prescribed the drug Diflucan to Mr. MacDonald.  Had Dr. Ahmed ordered blood tests, he would have learned that, in view of the medications Mr. MacDonald was taking, Diflucan was contraindicated.  As a result of the Diflucan, Mr. MacDonald’s kidney function worsened, and he suffered muscle damage.

Mr. MacDonald was later transferred to another hospital and another physician.  He was then given the necessary blood tests, and his medication was changed.  Some of Mr. MacDonald’s functionality was restored, but nevertheless he suffered permanent injuries on account of the negligence of Dr. Ahmed and City Hospital.  As a result of Mr. MacDonald’s injuries, his wife suffered her own psychological trauma.

The MacDonalds sued City Hospital and Dr. Ahmed for medical malpractice, and the jury found both the defendants liable.  The verdict for Mr. MacDonald was $125,000 for past medical expenses and lost wages, $250,000 for past pain and suffering, and $750,000 for future pain and suffering.  The jury awarded Mrs. MacDonald $500,000 for her emotional distress.

City Hospital and Dr. Ahmed moved to reduce the verdict based on a West Virginia statute that limits noneconomic damages to $500,000 in medical malpractice suits, “regardless of the number of plaintiffs or the number of defendants,” but with an adjustment for inflation.  The MacDonalds opposed this motion, arguing that the damage cap was unconstitutional.

The trial judge found the statute to be constitutional.  The court entered judgment for Mr. MacDonald for his full economic damages, but the noneconomic damages were reduced to $500,000, adjusted for inflation.  The judge also reduced Mrs. MacDonald’s damages to zero because Mr. MacDonald’s noneconomic damages had fully exhausted the cap and his claim took precedence over hers.  In addition, he awarded the MacDonalds their costs.

The MacDonalds appealed to the West Virginia Supreme Court of Appeals, the highest court in the state.  On June 22, 2011, the Supreme Court of Appeals found the damage cap constitutional and affirmed.

Litigation Center involvement

The Litigation Center and the West Virginia State Medical Association filed an amicus brief in the West Virginia Supreme Court of Appeals, supporting the constitutionality of the cap on noneconomic damages.

Supreme Court of Appeals of West Virginia brief

Maurin v. Hall, 682 N.W.2d 866 (Wis. S. Ct. 2004)

Also under Tort reform

Outcome:    Favorable

Issue
The issue in this case was the constitutionality of a Wisconsin statute that limited the non-economic damages 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 violated the Wisconsin Constitution. The court reasoned that the statute deprived litigants of the right to a trial by jury, and it violated 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.


Wisconsin Supreme Court brief

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

Also under Abusive litigation against physicians

Outcome:    Very unfavorable

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.

Minnesota Supreme Court.

Murphy v. Dulay (11th Cir.)

Issue

The issue in this case is whether the Florida Medical Malpractice Act, Fla. Stat. § 766.1065, which requires a potential plaintiff who claims medical negligence to authorize the release of otherwise confidential health information as a condition of bringing the lawsuit, conflicts with the Health Insurance Portability and Accountability Act (HIPAA) privacy regulations.

AMA interest

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

Case summary

Glen Murphy was a former patient of Adolfo C. Dulay, MD, a family practitioner from Madison, Florida. Mr. Murphy sued Dr. Dulay in the United States District Court for the Northern District of Florida, claiming that he intended to sue Dr. Dulay for medical negligence in state court but did not want to authorize the release of his medical information, as required under the Florida Medical Malpractice Act. Mr. Murphy asserted that 45 CFR § 164.508 (a)(1) of the HIPAA privacy regulations preempted the Florida law, to the extent the Florida law required him to authorize ex parte interviews with his other health care providers.

Mr. Murphy sought a judicial declaration that the portion of the state law allowing ex parte interviews was invalid. He also sought to enjoin Dr. Dulay from conducting such interviews with his other health care providers. The State of Florida, through its Attorney General, intervened to defend the Florida statute. By agreement of the parties, the case was decided in the trial court based on the pleadings and the legal arguments.

After deciding that the case was justiciable, the court addressed what it characterized as “the critical question:” Should the authorization required under Florida law as a prerequisite to the bringing of a medical negligence action be deemed a “valid” authorization, as the word “valid” is used in 45 CFR § 164.508 (a)(1) of the HIPAA privacy regulations? Based on what it deemed to be the purpose and structure of the HIPAA regulations, the court concluded that the Florida Medical Malpractice Act did, in fact, violate the HIPAA regulations and should therefore be preempted. It entered a declaratory judgment and injunction in favor of Mr. Murphy and against Dr. Dulay.

The State of Florida, as intervenor, has appealed to the Eleventh Circuit.

Litigation Center involvement

The Litigation Center joined the Florida Medical Association and the Texas Medical Association proffered an amicus brief to the Eleventh Circuit, supporting Dr. Dulay and the Florida Medical Malpractice Act.  However, because the brief was untimely the Eleventh Circuit denied leave to file it.

United States Court of Appeals for the Eleventh Circuit brief

Nestlehutt v. Atlanta Oculoplastic Surgery, 691 S.E.2d 218 (Ga. 2010)

Also under Tort Reform

Outcome:    Very unfavorable

Issue

The issue in this case was whether the Georgia statutory cap on non-economic damages in a medical malpractice case was constitutional.

AMA interest

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

Case summary

Betty Nestlehutt was allegedly injured as a result of negligently performed cosmetic plastic surgery.  She sued Atlanta Oculoplastic Surgery, the medical group that had performed the surgery, and the case was tried to a jury.  The jury verdict included an award of $900,000 in non-economic damages.  This exceeded the statutory cap.

Mrs. Nestlehutt moved for judgment based on the jury verdict and for a declaratory judgment that the non-economic damage cap was unconstitutional.  The trial court found the cap to be an unconstitutional violation of (1) the right of trial by jury, (2) the separation of powers doctrine, and (3) the right of equal protection of the laws.  It entered judgment on the jury verdict, and the plastic surgeons appealed directly to the Georgia Supreme Court.

The Georgia Supreme Court affirmed, finding that the cap violated the right of trial by jury.

Litigation Center involvement

The Litigation Center, along with the Medical Association of Georgia filed an amicus curiae brief to support the constitutionality of the Georgia tort reform statute.

Georgia Supreme Court brief.

Nicholas v. Mynster, 64 A.3d 536 (N.J. 2013)

Also under Expert witnesses, tort reform

Outcome:    Very favorable

Issue

The issue in this case was whether a New Jersey statute, the Patients First Act, should bar a physician from testifying as an expert witness on the standard of care in a medical malpractice case against a physician with a different medical specialty than the expert’s specialty.

AMA interest

The AMA believes that expert witnesses in medical liability suits should actively practice or have board certification in the same field as the defendant.  The AMA also supports tort reform initiatives of state medical societies.

Case summary

Christopher Mynster, MD, who was board-certified in emergency medicine, treated Edward Nicholas for carbon monoxide poisoning at a hospital emergency room.  He had Mr. Nicholas placed on 100% face mask oxygen and recommended that he be admitted to the hospital.  He also prescribed Ativan to alleviate Mr. Nicholas’s anxiety and muscle cramps.  In addition, he asked Rehka Sehgal, MD, a board-certified family practitioner, to help assess Mr. Nicholas.

After discussing the case with Dr. Mynster and examining Mr. Nicholas’s medical records and history, Dr. Sehgal determined that Mr. Nicholas was suffering from carbon monoxide poisoning with anxiety and hyperventilation.  She ordered that he be admitted to the intensive care unit and be medicated with Ativan and Zofran.  Notwithstanding this care, Mr. Nicholas suffered a brain seizure.

Mr. Nicholas and his wife sued Drs. Mynster and Sehgal for medical malpractice.  They claimed that the defendants had failed to order appropriate tests, had failed to treat Mr. Nicholas promptly, and had failed to refer him to other facilities and/or specialists for necessary care.  But for their negligence, according to the plaintiffs, he would not have suffered the seizure.

The plaintiffs proffered Lindell Weaver, MD, a Utah physician, as an expert on the relevant standard of care.  Dr. Weaver is an expert in hyperbaric medicine and is board-certified in internal medicine, critical care medicine, and pulmonary diseases.  However, he does not practice and is not board certified in emergency or family practice medicine.  In his deposition, Dr. Weaver testified that he had not worked in an emergency room for the past 20 years and did not know how the average family practitioner would have treated Mr. Nicholas.

The defendants moved to prohibit Dr. Weaver’s testimony, asserting that, because he is not board-certified in the defendants’ specialties, the Patients First Act barred his testimony on the standard of care.

The Superior Court trial judge denied the motion, finding that Dr. Weaver’s lack of board certification in emergency or family practice medicine might be a factor in determining his credibility but should not determine his competence.  Likewise, the court held, his lack of knowledge of what a family physician would do in the plaintiff’s case should not bar him absolutely from testifying against Dr. Sehgal but should only affect his credibility.

The defendants sought an interlocutory appeal to the Appellate Division, but it summarily denied that request.  The defendants then appealed to the New Jersey Supreme Court, which reversed the trial court decision.

The case was remanded to the trial court, with a direction that Dr. Weaver be barred from testifying as an expert.

Litigation Center involvement

The Litigation Center, along with the Medical Society of New Jersey filed an amicus brief in the New Jersey Supreme Court in support of the defendant physicians.  The brief argued that the Patients First Act requires that Dr. Weaver be barred from testifying as to the standard of care.  His lack of board-certification in the defendants’ specialties should affect his competence to testify and not merely his credibility.

Supreme Court of New Jersey brief

O'Rourke v. Buckmaster, 755 N.W.2d 570 (Minn. App. 2008)

Outcome:    Very favorable

Issue
The issue in this case was 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.

Minnesota Court of Appeals brief

Osburn v. Danek Medical, 530 S.E.2d 54 (N.C. S. Ct. 2000)

Also under Informed consent

Outcome:    Very favorable

Issue
The issue in this case was whether a physician was 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.

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 had not explained that the FDA had not granted approval for the surgically implanted device, the surgery was performed without the patient's informed consent. Both the trial court and the North Carolina Court of Appeals held that informed consent only requires disclosure of 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.)

Outcome:    Neutral

Issue
The primary issue in this case was 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 highest 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.

Before the Supreme Court could render a decision, the case was settled and the appeal was 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.

Parker v. Southern New Hampshire Medical Center, 164 N.H. 319 (N.H. 2012)

Also under Screening Panels and Tort reform

Outcome:     Very Favorable

Issue

The issue in this case was whether a New Hampshire law that creates pre-judicial screening panels for medical injury claims was constitutional.

AMA interest

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

Case summary

According to the complaint, Sheila Parker, who was suffering from meningitis, went to the emergency room at Southern New Hampshire Medical Center (SNHMC), a hospital in Nashua, New Hampshire.  She was admitted to the hospital, but she developed “a cerebral infarct,” which ultimately led to her death.  While in the emergency room and later during the course of her hospital stay, she came under the care of several medical personnel, who allegedly failed to diagnose or treat her condition properly.

Ms. Parker’s estate sued for damages arising from medical negligence.  In addition to SNHMC, the estate sued three physicians, a physician assistant, and a medical practice group.

The New Hampshire statutes authorize screening panels for medical injury claims. The panels are to identify claims that merit compensation and encourage early resolution of those claims prior to commencement of a lawsuit and encourage early withdrawal of non-meritorious claims. Following evidentiary hearings, the panels is to make written determinations on the following questions: (1) did the defendants’ conduct meet the applicable standard of care? (2) did the defendants’ conduct cause the plaintiffs” injuries? and (3) if issues (1) and (2) are found adversely to the defendant, did the plaintiffs contribute, by their own conduct and by a greater factor than the defendants’ conduct, to the injury? If the panels have unanimously decided any of the three issues before, then those findings are admissible in the subsequent trial of the case. If the panel decisions is not unanimous on an issue, then the decisions is not admissible.

In the case at bar, the screening panel made findings on the questions put to it. Following its decision, the plaintiff moved to exclude the panel’s findings from consideration by the jury because, it argued, the screening panel law was unconstitutional. The trial court denied the motion.

Both sides appealed to the New Hampshire Supreme Court. Initially, the Supreme Court indicated that it would consider only whether the pre-judicial panel screening law violated the separation of powers provision of the New Hampshire Constitution. Subsequently, however, the Supreme Court decided that it would also consider whether the screening law violated the right to equal protection of the laws, the right to trial by jury, or the right to due process of law.

On October 30, 2012, the New Hampshire Supreme Court upheld the majority of the pre-judicial screening panel law. It did, however, say that the trial courts will be allowed to hear evidence on certain of the processes by which the screening panels reached their decisions. To this limited extent, the Supreme Court found portions of the screening panel law invalid.

Litigation Center involvement

The Litigation Center, along with several state medical societies, filed an initial amicus brief in the New Hampshire Supreme Court to support the screening panel law. The amici subsequently filed a supplemental brief, which argued that the law also satisfied the constitutional guarantees of equal protection, trial by jury, and due process. After discussion with the New Hampshire Medical Society, the Litigation Center will not challenge the continued seal of the court file. The briefs will not be unsealed until the case is concluded.

Phelps v. Physicians Insurance Company of Wisconsin, 768, N.W.2d 615 (Wis. 2009)

744 N.W.2d 880 (Wis. App. 2007), 698 N.W.2d 643 (Wis. S.Ct. 2005)

Also under Tort reform

Outcome:    Very favorable

Issues

The issues in this case are: (1) whether a first year unlicensed medical resident was a "borrowed  employee" of a teaching hospital where he cared for patients; and (2) whether "bystander" damages are available in medical malpractice cases to a father who witnessed his child's death during the birthing process.


AMA interest

The AMA supports caps on non-economic damages in medical malpractice cases.  Also, the AMA opposes any dilution of the patient-physician relationship. 


Case summary

Marlene and Gregory Phelps and their two surviving children sued Mathew Lindemann, M.D., an unlicensed first-year resident, and his insurer, Physicians Insurance Company of Wisconsin, for damages claimed as a result of the death of a newborn during childbirth.  The Phelps attributed the death to Dr. Lindemann's negligence. 

Mrs. Phelps had been hospitalized at St. Joseph's Hospital as a high risk obstetrical patient, and Dr. Lindemann was a first year resident at the hospital.  After a trial, the court found Dr. Lindemann to have been negligent.

On an earlier appeal, the Wisconsin Supreme Court had 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 have been deemed a borrowed employee protected by the damages cap.  It also awarded Mr. 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, seeking a determination of whether: (1) first year unlicensed residents are borrowed employees of the teaching hospitals where they care for patients; and (2) bystander damages are available in medical malpractice cases to a father who witnessed his child's death during delivery, when medical negligence causing the death had occurred several hours before the death.

On the final appeal, the Wisconsin Supreme Court ruled in favor of the resident physician and the insurance company on both issues.  Thus, it held that the physician was a borrowed employee for purposes of the damages cap, and the Wisconsin medical liability statute did not allow bystander damages to the father.  Two of the justices dissented.


Litigation Center involvement
The Litigation Center joined with the Wisconsin Medical Society to file an amicus curiae brief supporting the applicability of the damages cap and opposing the applicability of bystander damages liability.

Wisconsin Supreme Court brief

Plank v. Community Hospitals of Indiana, 981 N.E.2d 49 (Ind. 2013)

956 N.E.2d 731 (Ind. Ct.App. 2011)

Also under Tort reform

Outcome:     Very favorable

Issue

The issue in this case was whether the Indiana statutory limitation on damages in medical malpractice suits was constitutional.

AMA interest

Medical liability is the AMA’s highest legislative priority.

Case summary

Debra Plank was hospitalized for severe abdominal pains.  She fell into a coma and, two weeks later, died.

As representative of Mrs. Plank’s estate, her widower, Timothy Plank, sued Community Hospitals of Indiana and Joseph Pavlik, MD, for wrongful death based on medical malpractice.  He also sued personally, for loss of consortium.  Mr. Plank alleged that the hospital had unreasonably delayed the delivery of an x-ray, which showed that Mrs. Plank had a dangerous, but treatable bowel obstruction.  Had the x-ray been read promptly, Mrs. Plank could have had emergency surgery, which would have cleared the obstruction.

The jury found Dr. Pavlik not liable, but it awarded Mr. Plank $8.5 million against the hospital.  The Indiana Malpractice Act (IMA) provides that the total amount recoverable in an action for medical malpractice may not exceed $1.25 million.  Based on the IMA, the hospital moved, after entry of judgment based on the verdict, to have the judgment reduced.

Mr. Plank objected to the motion, contending that, even if the IMA damages cap may once have been valid, it is no longer constitutional.  He asserted that the Indiana legislature had passed the cap in order to maintain the profitability of physicians and other health care providers, and he sought leave to introduce evidence on the general economic conditions of the health and insurance industries, intending to prove that the cap is no longer needed to ensure affordable and accessible health care.

The trial court denied Mr. Plank’s objection and then reduced the judgment against the hospital to $1.25 million.  Mr. Plank appealed the reduced judgment to the Indiana Court of Appeals.

On October 25, 2011, the Court of Appeals reversed.  It held that Mr. Plank is entitled to present evidence on whether the cap on damages, even if at one time constitutional, is now invalid because the original conditions that supported the law no longer exist.  

Dr. Pavlik appealed to the Indiana Supreme Court.  On January 15, 2013, Indiana Supreme Court ruled in favor of Dr. Pavlik on a technicality.  It held that Mr. Plank had not properly asserted his claim of unconstitutionality in the trial court, and so it reversed the Court of Appeals and affirmed the trial court.

 

Litigation Center involvement

The Litigation Center, along with the Indiana State Medical Association, filed an amicus curiae brief in support of the hospital in the Indiana Court of Appeals.

Indiana Court of Appeals brief

Rashidi v. Moser, 219 Cal. App. 4th 1170 (Cal. App. 2013)

Also under Tort reform

Outcome:    Very favorable

Issue

The issue in this case was whether MICRA’s (Medical Injury Compensation Reform Act) cap on noneconomic damages, Cal. Civ. Code § 3333.2, violated the California constitutional guarantees of trial by jury, separation of powers, and equal protection of the laws.

AMA interest

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

Case summary

Hamid Rashidi underwent an embolization procedure to stop a nose bleed. During the procedure, embospheres, which are in the nature of glue pellets, mistakenly blocked an artery that led from his nose to his right eye. As a result, he became blind in that eye. He sued his physician, Dr. Franklin Moser, for failing to take the necessary precautions to prevent the embospheres from traveling to his eye.

The trial court reduced the jury’s award of $1,325,000 in noneconomic damages to $250,000 to conform to the MICRA damages cap. Rashidi appealed to the California Court of Appeal.

On September 23, 2013, the Court of Appeal affirmed, finding that the California Supreme Court had resolved the constitutional arguments against the plaintiffs.

Litigation Center involvement

The Litigation Center, along with the California Medical Association, filed an amicus brief supporting the MICRA cap on noneconomic damages.

California Court of Appeal brief

Ray v. Kapiolani Medical Specialists, 259 P.3d 569 (Haw. 2011)

Also under Tort reform

Outcome:    Neutral

Issue

The issue in this case was whether the Hawaii cap on damages for pain and suffering was constitutional.

AMA interest

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

Case summary

Alyssa Ray, a fourteen year old girl, suffered from an autoimmune disease. She sought treatment from Kapiolani Medical Specialists (KMS), which prescribed steroids. Unfortunately, Alyssa incurred an extreme case of myopathy and suffered substantial injuries including pain and suffering.

Alyssa and her parents sued KMS for medical malpractice.  The Rays alleged that the prescribed treatment regimen was not generally accepted in the medical community. Further, they asserted, other treatments, which were accepted and available, would have involved lower doses of steroids and would have posed a smaller risk. It was the failure to recommend one of these alternatives that allegedly caused the myopathy. After a trial, a jury awarded Alyssa $5.550 million in damages, of which $2 million was categorized as “pain and suffering.” The jury also awarded her parents, collectively, $600,000.

A Hawaii statute provides that, with certain exceptions, “damages recoverable for pain and suffering … shall be limited to a maximum award of $375,000.” Based on this limitation, the court reduced the pain and suffering award to $375,000 and entered a judgment for Alyssa of $3,925,000. The court also entered judgments for her parents that totaled $600,000.

Alyssa moved to amend her judgment, so it would reflect the full amount of the jury verdict. She claimed the cap on damages was unconstitutional, as it violated the right to trial by jury, the doctrine of separation of powers, the guarantee of equal protection, and the right to due process. The trial court rejected these arguments and denied the motion to amend the judgment. The case was then appealed to the Hawaii Intermediate Court of Appeals, which transferred the case directly to the Hawaii Supreme Court.

The Hawaii Supreme Court found that certain of the jury’s findings within the special verdict were internally inconsistent. The court vacated the trial court judgment and remanded the case for a new trial. The court did not reach the question of the constitutionality of the damage cap.


Litigation Center involvement

The Litigation Center and the Hawaii Medical Association filed an amicus brief with the Hawaii Intermediate Court of Appeals.  When the case was transferred to the Hawaii Supreme Court, this brief stood as the Supreme Court amicus brief.

Hawaii Intermediate Court of Appeals brief

Ruther v. Kaiser, 2012 Ohio 5686 (Ohio 2012)

Also under Tort reform

Outcome:     Very favorable

Issue

The issue in this case was whether the Ohio Statute of Repose was constitutional as applied.

AMA interest

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

Case summary

George Kaiser, D.O., ordered laboratory tests for the liver enzymes of his patient, Timothy Ruther, in 1995, 1997, and 1998.  In each instance, the tests showed abnormally elevated enzyme levels, but Dr. Kaiser allegedly did not share this information with Mr. Ruther.  In 2008, Mr. Ruther was diagnosed with liver cancer and hepatitis C, and he then became aware, supposedly for the first time, of the earlier test results.  He died shortly thereafter and his estate sued Dr. Kaiser for medical negligence.

The Ohio Statute of Repose, R.C. 2305.113(C), states:  “No action upon a medical … claim shall be commenced more than four years after the occurrence of the act or omission constituting the alleged basis of the … claim.”  Based on this language, Dr. Kaiser moved for summary judgment, but the trial court denied his motion.  It held that the statute, as applied to Mr. Ruther, violated a provision of the Ohio Constitution that “every person … shall have remedy by due course of law.”  Since Mr. Ruther had not know of Dr. Kaiser’s negligence, he had no way to obtain his legal remedy.

Dr. Kaiser appealed the trial court’s denial of the motion for summary judgment and the finding of unconstitutionality, but the Ohio Court of Appeals affirmed.  He then appealed to the Ohio Supreme Court.

On December 6, 2012, by a split decision and in a reversal of its own precedent, the Supreme Court reversed the Court of Appeals.  It held that Mr. Ruther's cause of action was not a vested right, and therefore the legislature had the power to limit the cause of action by the statute of repose.

Litigation Center involvement

The Litigation Center, along with the Ohio State Medical Association, filed an amicus curiae brief, asking the Ohio Supreme Court to accept jurisdiction of this case. After the Ohio Supreme Court accepted jurisdiction, the Litigation Center and OSMA filed another amicus brief in the Ohio Supreme Court on the merits. The brief argued that the Statute of Repose draws a reasonable balance between the rights of plaintiffs and of defendants and should therefore be upheld.

Ohio Supreme Court brief

Ohio Supreme Court merits brief

Ryan v. Renny, 999 A.2d 427 (N.J. 2010)

Also under Affidavit of merit, Certificate of merit, and Expert Witnesses

Outcome:    Very unfavorable

Issue

The issue in this case was whether the New Jersey medical malpractice expert testimony/affidavit of merit law should be narrowly construed to allow standard of care testimony only by a physician who is board certified or experienced in the specialty of the physician being sued except in extraordinary circumstances or whether the board certification/experience requirement can be waived without a full explanation.

AMA interest

The AMA believes that expert witnesses in medical liability cases should have comparable education, training, and experience or board certification in the same field as a defendant physician.

Case summary

Andrew Renny, MD, a board certified gastroenterologist, performed a colonoscopy on Abby Ryan. Allegedly, this was done negligently, and he perforated her bowel. She and her husband sued Dr. Renny for medical malpractice.

In New Jersey, a plaintiff in a medical malpractice suit must, within 60 days of the filing of the answer to the complaint, submit an affidavit of merit, which is to attest that the care provided by the defendant fell outside acceptable professional standards. The person who signs the affidavit must demonstrate expertise in the medical procedure at issue, as evidenced by board certification or by a specialized area of practice. If good cause is shown, the court can extend the 60 day deadline by an additional 60 days.  However, a court has discretion to waive these testimonial requirements, upon motion, if the moving party (a) demonstrates an inability to obtain an otherwise suitable expert after a good faith effort to find one and (b) secures another physician to sign the affidavit or provide the testimony, even though the substitute physician is not a specialist in the area of practice, so long as the substitute expert has “sufficient training, experience and knowledge” to testify.

In their suit against Dr. Renny, the Ryans submitted an affidavit signed by a general surgeon, who was not board certified in gastroenterology and had not performed a colonoscopy in several years. The general surgeon’s affidavit asserted that he was knowledgeable in issues involving colonoscopies and perforated bowels.

Dr. Renny moved to dismiss the complaint, because the affidavit failed the specialization requirements of the New Jersey statutes. In response, the Ryans’ attorney advised the court that he had contacted three gastroenterologists, all of whom “declined to provide an opinion relating to the actions of the defendant Andrew Renny, M.D.”  Following these efforts, the attorney secured the general surgeon’s affidavit. After hearing oral argument, the trial judge waived the specialty requirement and denied the motion to dismiss the complaint. Dr. Renny appealed the denial of the motion to dismiss to the Appellate Division of the New Jersey Superior Court.

The Appellate Division found that the affidavit of merit law had been passed to weed out unmeritorious medical malpractice lawsuits at an early stage of the proceedings.  For that reason, the law required an affiant to possess the higher qualifications of a specialist or sub-specialist, rather than those of a generalist. That purpose could be defeated if a plaintiff could obtain a waiver merely by showing that specialists in the area were unwilling to sign an affidavit of merit, without an explanation for their unwillingness. Examples of possibly satisfactory explanations might be a conflict of interest, a practice of refusing to become involved in litigation as an expert witness, or a refusal to travel outside a limited geographic area. With such an explanation, the trial court might then consider whether the affidavit or testimony of the generalist would suffice.

Here, no explanation had been given for the gastroenterologists’ refusal to sign the Ryans’ affidavit of merit. Accordingly, the Appellate Division held that the trial judge should have granted the motion to dismiss.  The Appellate Division reversed the order granting the waiver and directed that the complaint be dismissed.

The Ryans appealed to the New Jersey Supreme Court.  The Supreme Court, in a split decision, reversed.  It found that the Ryans' attorney had made a good faith effort to find a gastroenterologist willing to testify, and that was sufficient to satisfy the first part of the waiver requirement, regardless of the reasons why the gastroenterologists refused to testify.  Further, the general surgeon was sufficiently familiar with colonoscopies to satisfy the second part of the waiver requirement.  The case was remanded to the trial court for further proceedings.

Litigation Center involvement

The Litigation Center and the Medical Society of New Jersey filed an amicus brief in the New Jersey Supreme Court to support Dr. Renny and urge a narrow interpretation of the statutory waiver provision.

Supreme Court of New Jersey brief

Semsker v. Lockshin, 987 A.2d 18 (Md. 2010)

Outcome:    Very favorable

Issue

The issue in this case is whether the Maryland tort reform statute applied to all suits for medical malpractice or only to malpractice cases that follow a pre-trial arbitration.

AMA interest

Medical liability reform is the AMA's highest legislative priority.

Case summary

Michael R. Albert, MD, a dermatologist, misdiagnosed a growth on Richard Semsker's back.  The growth turned out to be cancerous, and Mr. Semsker died.  Mr. Semsker's estate sued Dr. Albert and his two medical practice partners, as did Mr. Semsker's widow and daughters.  One of the partners settled, but the case proceeded against Dr. Albert and the remaining partner, Norman A. Lockshin, MD. 

Under Maryland law, medical malpractice cases are ordinarily referred to a Health Care Alternative Dispute Resolution Office, which then arbitrates the case.  However, a party can waive arbitration, and in this case the arbitration was waived.

The case was tried to a jury, which returned a verdict against Drs. Albert and Lockshin, jointly and severally, for a total of $5,805,000 for all of the plaintiffs.  Of this sum, $3,000,000 was for non-economic damages.  Also, $500,000 was awarded for previously incurred medical expenses, some of which had been paid by Mr. Semsker's insurance company.

The parties made various post-trial motions, some of which invoked Md. Ann. Code, Courts and Judicial Proceedings, § 3-2A-09.  This statute caps non-economic damages and also eliminates recovery of damages for which the plaintiff has already been reimbursed under a "collateral source" (typically, the plaintiff's insurance company).  The court had to determine whether § 3-2A-09 applied in this case.

Section 3-2A-09 states that it applies to "an award under § 3-2A-05 of this subtitle or a verdict under § 3-2A-06 of this subtitle".  Both § 3-2A-05 and § 3-2A-06 refer to arbitration proceedings.  However, § 3-2A-09 does not state that it should apply to a judicial award, such as the one in the present case, that resulted from proceedings in which arbitration was waived.

The trial court found that § 3-2A-09 applies only to proceedings that follow from an arbitration.  The court acknowledged that such interpretation might lead to an emasculation of the statute, as plaintiffs might choose to waive arbitration to avoid its effect.  Nevertheless, it found the statutory wording unambiguous and that it could not be changed through judicial interpretation.  Thus, the court held that § 3-2A-09 would not apply to the instant case.

The defendants appealed to the Maryland Court of Appeals, the highest court in the state.  The Maryland Supreme Court reversed, finding that the cap on damages, § 3-2A-09, applies to all judgments, including judgments arising our of proceedings in which arbitration has been waived.  If arbitration is waived and the case proceeds to verdict, then the verdict must be entered under § 3-2A-06.

Litigation Center involvement

The Litigation Center and MedChi filed an amicus curiae brief in the Maryland Court of Appeals to argue that § 3-2A-09 should apply to all judicial proceedings, not just those that follow from an arbitration.

Court of Appeal of Maryland brief.

Sigmon v. Southwest General Health Care Center, 2007 Ohio 2117 (Ohio Ct. App.)

Also under Abusive litigation against physicians

Outcome:    Very favorable

Issue

The issue in this case was the appropriateness of sanctions against a medical malpractice plaintiff's attorney who brought a frivolous lawsuit.

AMA Interest

The AMA opposes abusive medical malpractice litigation.

Case Summary


This case involved an appeal of sanctions against a plaintiff's attorney for bringing a frivolous medical malpractice action against an orthopedic surgeon, his practice group and a hospital. The trial court assessed $8,500 in fees -- $4,500 to the defendant physician and his practice group and $4,000 to the defendant hospital. The sanctioned plaintiff's attorney appealed.

On May 3, 2007, the Ohio Court of Appeals affirmed the trial court's finding in favor of defendants. On October 3, 2007, the Ohio Supreme Court declined to accept for review the Court of Appeal's opinion.

Litigation Center Involvement


The Litigation Center and the Ohio State Medical Association filed an amicus curiae brief to support the defendants in the in the appellate court.

Ohio Court of Appeals brief.

Southard v. Temple University Hospital, 781 A.2d 101 (Pa. S. Ct. 2001)

Also under Informed consent

Outcome:    Very favorable

Issue

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.

AMA interest

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

Case summary

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 accepted the physicians' argument and reversed the intermediate appellate court decision.

Litigation Center involvement

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.

Stinnett v. Tam, 130 Cal.Rptr.3d 732 (Cal. App. 2011)

Also under Tort Reform

Outcome:    Very favorable

Issue

The issue in this case was whether MICRA's (Medical Injury Compensation Reform Act) cap on non-economic damages, Cal. Civ. Code § 3333.2, violated the California constitutional guarantees of equal protection of the laws and trial by jury.

AMA interest

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

Case summary

Stanley Stinnett was hospitalized after a motorcycle accident, fracturing his ribs.  While hospitalized, he developed a disruption of his gastrointestinal digestive action.  As a result, his stomach became severely swollen, exerting pressure on his diaphragm due to the air and fluid he accumulated in his stomach.

He complained to the hospital staff and his physician, Tony Tam, M.D., about the swelling.  Mr. Stinnett had an x-ray taken, but no action was taken to reduce the abdominal swelling.  Mr. Stinnett vomited and inhaled some of the vomit into his lungs, and he ultimately died from the resulting asphyxiation.

Holly Stinnett, Mr. Stinnett’s widow, sued for wrongful death, claiming negligent medical treatment.  She asserted that, under the accepted standard of care, Dr. Tam should have read the x-ray promptly and a nasogastric tube should have been inserted into Mr. Stinnett’s stomach to drain the accumulated fluid.  This would have relieved the pressure on his diaphragm and avoided the risk of vomiting  and the aspiration of the vomit. 

A jury found Dr. Tam liable and awarded Mrs. Stinnett $148,302 for past economic loss, $1,242,093 for future economic loss, and $6,000,000 in non-economic damages.  Dr. Tam moved to reduce the award in accordance with the $250,000 MICRA cap.  Over Mrs. Stinnett’s objection, judgment was entered in the reduced amount.

Mrs. Stinnett appealed to the California Court of Appeal. She contended that MICRA violated her constitutional rights of equal protection and trial by jury.  On September 1, 2011, by a split decision, the court affirmed, thus upholding the constitutionality of the cap.

Mrs. Stinnett then asked the California Supreme Court to hear the case, but on November 30, 2011, the Supreme Court, in a split decision, declined to grant further review.

Litigation Center involvement

The Litigation Center, along with the California Medical Association, filed an amicus curiae brief in support of MICRA.  The Litigation Center and California Medical Association also filed a letter brief with the California Supreme Court to oppose a hearing in that court.

California Court of Appeal brief

California Supreme Court letter brief

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

Also under Abusive litigation against physicians, Affidavit of merit, Certificate of merit, and Expert witnesses

Outcome:    Somewhat unfavorable

Issue
The issue in this case was 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. was 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.

Swink v. Weintraub, 693 S.E.2d 352 (N.C. 2010)

Outcome:    Unfavorable

Issue

The issue in this case was whether North Carolina physicians were required to exercise reasonable care and diligence according to generally prevailing “national standards” for physicians with similar training and experience or whether North Carolina physicians were required to exercise reasonable care and diligence according to prevailing norms in the same or similar communities for physicians with similar training and experience.

AMA interest

The AMA supports reasonable efforts to reduce medical malpractice liability for physicians.

Case summary

 

Dr. Richard Weintraub, a cardiologist, performed emergency surgery to replace Margaret Swink’s pacemaker. Unfortunately, there were complications and she died as a result. Mrs. Swink’s widower, who was also the administrator of her estate, sued Dr. Weintraub and the hospital for malpractice.

Swink’s experts testified, over objection, that Dr. Weintraub failed to use reasonable care and diligence and his best judgment while performing the surgery. However, the experts did not testify as to whether Dr. Weintraub violated the standard of care specific to his community or similar communities. The trial court ruled against the defendants.

The defendants appealed, arguing that the testimony from Swink’s experts should not have been admitted because it did not conform to the requirements of N.C. Gen. Stat. § 90-21.12 which states:

“In any action for damages for personal injury or death arising out of the furnishing or the failure to furnish professional services in the performance of medical, dental, or other health care, the defendant shall not be liable for the payment of damages unless the trier of the facts is satisfied by the greater weight of the evidence that the care of such health care provider was not in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities at the time of the alleged act giving rise to the cause of action.” (Emphasis added).

However, the Court of Appeals affirmed, finding that the applicable precedent did not require adherence to a community standard of care. The defendants then asked the North Carolina Supreme Court for leave to appeal, but the Supreme Court declined to hear the case.

Litigation Center involvement

The Litigation Center and the North Carolina Medical Society advised the North Carolina Supreme Court that, if review were granted, they would file an amicus curiae brief to support the use of the community standard of care.  However, the motion became moot when the Supreme Court declined to hear the case.

Unruh v. Cacchiotti, 257 P.3d 631 (Wash. 2011)

Also under Tort Reform

Outcome:    Neutral

Issue

The issue in this case was whether the Washington Statute of Repose was constitutional.

AMA interest

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

Case summary

Dino Cacchiotti, a dentist, treated Lisa Unruh, a minor, for a jaw growth malocclusion.  He applied braces to her teeth twice and removed them in two stages.  Unfortunately, Ms. Unruh suffered “root resorption” and as a result she lost all of her adult teeth.  Consequently, she had to have implants inserted in her jaw. 

Eleven years later, after an appointment with another dentist, Ms. Unruh learned that the treatment she had received from Dr. Cacchiotti may have been below the prevailing standard of care.  She was told that he should have recommended surgery, instead of braces.  Following a written request to Dr. Cacchiotti for mediation, she sued Dr. Cacchiotti and his wife for dental malpractice.

The Cacchiottis moved for summary judgment, asserting that the suit was time barred under the Statute of Repose, RCW § 4.16.350, which states: “Any civil action for damages for injury occurring as a result of health care … based upon alleged professional negligence shall be commenced within … one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, … except that in no event shall an action be commenced more than eight years after said act or omission.”

According to the Cacchiottis, the alleged malpractice occurred at the time of the misdiagnosis, which fell outside the time for suit under the Statute of Repose.  The trial court agreed and granted the Cacchiottis motion.  Ms. Unruh appealed.  After the case was fully briefed, it was transferred to the Washington Supreme Court for immediate review, without decision from the Court of Appeals.

The Washington Supreme Court reversed, finding that the Statute of Repose did not bar the plaintiff's suit.  The court did not reach the constitutional question.

Litigation Center involvement

The Litigation Center, the Washington State Medical Association, and Physicians Insurance filed an amicus curiae brief to support the statute’s constitutionality.

Washington State Supreme Court brief

Velez v. Tuma, 492 Mich. 1 (Mich. 2012)

Also under Tort reform

Outcome:    Very favorable

Issue

The issue in this case was how to set off a join tortfeasor’s settlement payment in a medical liability lawsuit, in which the noneconomic damages were to be reduced on account of a statutory cap. 

AMA interest

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

Case summary

Dr. Martin Tuma and two hospitals provided health care services to Myriam Velez.  According to Velez, those services fell below accepted professional standards, and as a result she suffered the loss of her leg below the knee.  She brought suit for her injury.  Prior to the trial, the hospitals settled with Velez for $195,000.

The case against Tuma was tried and the jury found that Velez was entitled to an award of $124,831.86 in economic damages and $1,400,000 in noneconomic damages, for a total of $1,524,831.86.  However, the judge found that the economic damages had been or would be paid by a “collateral source,” and under Michigan law they were not recoverable.

In addition, under Michigan law, noneconomic damages in a medical malpractice suit were not to exceed $394,200.  The trial judge then reduced the noneconomic damages, in accordance with the statutory cap.  However, although Tuma claimed a set off on account of the hospitals’ payment, the trial court refused to reduce the award further.  Thus, the final judgment was for $394,200 based on noneconomic damages only.

Tuma appealed, claiming that he had not been properly credited for the $195,000 that the hospitals had paid to Velez.  He asserted that the $195,000 should have set off against the reduced award of noneconomic damages.  However, the Court of Appeals affirmed.

Tuma appealed to the Michigan Supreme Court. On July 23, 2012, by a split decision, the Supreme Court partially affirmed and partially reversed the decision of the Court of Appeals.  The Supreme Court affirmed the holding of the Court of Appeals that the common law right of set off applied to this case, notwithstanding that the proper award of damages was to be determined by Michigan’s tort reform law.  However, on the principal issue, the manner is which the setoff was to be applied, the Supreme Court reversed.  Under the statutory wording, the amount of noneconomic damages Velez could recover was to be limited to $394,200.  If the settlement set off were to be applied before application of the statutory cap, she would receive more than this sum as noneconomic damages.  Therefore, the setoff was to be applied after application of the damages cap, and the correct judgment for Velez should have been $199,200.

Litigation Center involvement

The Litigation Center, along with the Michigan State Medical Society filed two amicus curiae briefs to support Tuma.  The first brief argued that the set off should be made after application of the damage cap, so as not to dilute the benefits to be derived from the cap.  The second brief argued that setoff should be made, as provided under Michigan common law.

Michigan Supreme Court brief

Michigan Supreme Court supplemental brief

Villegas v. Eighth Judicial District Court, 639 F.3d 806 (8th Cir. 2011)

Also under Tort Reform

Outcome:    Neutral

Issue

The issue in this case was whether the Nevada cap on noneconomic damages applied on a per-person, per-claim basis (as the plaintiffs argue) or whether it applied on a per-incident or per-occurrence basis (as the defendants argued and as the district court found).

AMA interest

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

Case summary

According to her complaint, Adeline Villegas was suffering from abdominal pain.  Her physician, Mahmud Sheikh, M.D., diagnosed her with pancreatitis, and as a consequence she was left untreated.  In actuality, she suffered from a ruptured ulcer and peritonitis, from which she died.  Her estate and heirs sued Dr. Sheikh and the hospital in which she had been a patient.

The defendants’ answers invoked a Nevada statute, which provides “In action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover noneconomic damages, but the amount of noneconomic damages awarded in such an action must not exceed $350,000.”  The plaintiffs then moved for an order to confirm they should each be entitled to recover up to $350,000 from each defendant.  The trial court however, ruled that the maximum award of noneconomic damages in the case would be $350,000 in the aggregate.

The plaintiffs then petitioned the Nevada Supreme Court on an interlocutory basis for a writ of mandamus and prohibition, which would require the district court to modify its order.  Before the Supreme Court could decide the case, however, it was settled and dismissed.

Litigation Center involvement

The Litigation Center, along with the Nevada State Medical Association, filed an amicus curiae brief arguing for a narrow interpretation of the damages cap and an affirmance of the lower court ruling.

Nevada Supreme Court brief.

Watts v. Lester E. Cox Medical Centers, 376 S.W.3d 633 (Mo. 2012)

Also under Tort reform

Outcome:     Very unfavorable

Issue

The issue in this case was whether the Missouri statutory cap on non-economic damages in a medical liability suit was constitutional.

AMA interest

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

Case summary

Deborah Watts was approximately 39 weeks pregnant when she was examined at the Lester E. Cox Medical Center for a prenatal examination.  One of the resident physicians noted decreased fetal movement, but she did not order further tests and did not warn that such decreased movement might be a symptom of a serious medical condition, requiring immediate attention.  Mrs. Watts was admitted to the Cox Medical Center, and an electronic fetal monitor again showed that her baby was in distress.  The baby was delivered via c-section, but the baby was born with permanent brain injuries.

Mrs. Watts, her husband, and her newborn baby sued the Cox Medical Center and various of its physicians for medical negligence.  After the trial, the jury found economic damages of $3,371,000 and non-economic damages of $1,450,000.  The plaintiffs sought judgment for the total damages, but the defendants asked that the non-economic damages be reduced to $350,000, pursuant to Mo. Rev. Stat. § 538.210, which imposes that sum as a cap on non-economic damages.  The defendants also asked that the damages be paid on a periodic basis, pursuant to Mo. Rev. Stat. § 538.220.

The plaintiffs opposed the request, arguing that the statutes were unconstitutional.  They asserted that the statutes violated the Missouri constitutional right of trial by jury, guarantee of separation of powers, right of equal protection of the laws, prohibition against special legislation, and right to due process.  The trial judge overruled the plaintiffs’ objections and found the statutes constitutional.  He then reduced the non-economic damages to $350,000, and entered judgment for $3,721,000, plus costs.

The plaintiffs appealed directly to the Missouri Supreme Court.    On July 31, 2012, overturning its own precedent and by a split decision, the Supreme Court reversed.  It held that the cap on damages violated the constitutional right of trial by jury and was therefore invalid.  It did not reach the other constitutional issues.

Litigation Center involvement

The Litigation Center, along with the Missouri State Medical Association filed an amicus brief to support the constitutionality of the statute.

Missouri Supreme Court brief.

Winn v. Pioneer Medical Group (Cal. S.Ct.)

Also under Tort reform

Issue

The issue in this case is whether a claim based on medical negligence committed against an elderly patient can give rise to an action under the California Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act) and thus avoid protections allowed in medical negligence cases under MICRA (the Medical Injury Compensation Reform Act).

AMA interest

Tort reform is the AMA’s highest legislative priority and this case, if affirmed, would erode that reform.

Case summary

Elizabeth Cox, who was in her late 70’s and early 80’s at the time of the underlying events, suffered from peripheral vascular disease, particularly in her right leg. Pioneer Medical Group (PMG), a multi-specialty health care organization with eight offices in the Los Angeles area, provided various forms of treatment for her, always as an outpatient. Over a period of several years, her condition steadily worsened. PMG did not refer Cox to a vascular specialist. Eventually, Cox’s right foot turned black on account of tissue death caused by her long term impaired vascular flow. Following two amputations, she died from blood poisoning.

Kathleen Winn and Karen Bredahl, Cox’s daughters and heirs, sued PMG and three of its employees. The complaint alleged a violation of the Elder Abuse Act, claiming that, by not referring Cox to a vascular specialist, the defendants failed to provide her with proper care.

The defendants moved to dismiss the complaint for failure to state a cause of action for elder abuse, and the trial court granted that motion. The court noted that the defendants had not been responsible for Cox’s custodial care. The claim, it held, was properly one of simple professional negligence and incompetence, which did not fall under the Elder Abuse Act.

Winn and Bredahl appealed to the California Court of Appeal, which, by a split decision, reinstated the case. The Court of Appeal majority found that custodial care is not a prerequisite for elder abuse. It acknowledged § 15657.2 of the Elder Abuse Act, which states as follows:

Notwithstanding this article, any cause of action for injury or damage against a health care provider … based on the health care provider’s alleged professional negligence, shall be governed by those laws which specifically apply to those professional negligence causes of action. [E.g., MICRA].

Despite § 15657.2, however, the majority held that if the conduct of a health care provider amounted to “reckless neglect” (conduct more egregious than ordinary or even gross negligence), then the Elder Abuse Act would apply. It would be for the jury to determine if the defendants’ conduct in this case amounted to reckless neglect, as opposed to negligence.

The defendants have appealed to the California Supreme Court.

Litigation Center involvement

The Litigation Center joined the California Medical Association and other health care organizations in a letter amicus brief urging the California Supreme Court to accept jurisdiction.  The Litigation Center also joined in a brief directed to the merits of the case.

California Supreme Court letter brief urging acceptance of jurisdiction

California Supreme Court brief on the merits