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Tort Reform

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

Also under Professional liability

 

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.

 

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

Also under Professional liability

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)

 

Banfield v. Brodell, 862 N.E. 2d 169 (Ohio App. 2006)

Outcome:    Very unfavorable

Also under Affidavit of Merit and Certificate of Merit

 

Issue
The issue in this case was whether an Ohio judicial rule requiring that an affidavit of merit accompany any new medical malpractice complaint should be strictly enforced.

AMA interest
The AMA supports timely filing of affidavits of merit as conditions for the prosecution of legal actions against physicians.

Case summary
Effective July 1, 2005, the Ohio Supreme Court amended Ohio Civil Rule 10(D) to require that complaints involving a "medical claim" include an affidavit of merit to establish the adequacy of the claim. In addition, the amended rule provided that a plaintiff may file a motion to extend the period of time to file the affidavit of merit, but such motion must be filed with the complaint and only for "good cause shown."

On July 26, 2005, the Plaintiff, Sandra Banfield, filed a complaint against Dr. James Brodell, an Ohio orthopedic surgeon, alleging that Dr. Brodell had provided negligent treatment during an artificial knee implant. She did not include the required affidavit of merit or a motion to extend the time to file one. Dr. Brodell moved to dismiss the complaint, based on this omission. In response, Plaintiff asserted that the Statute of Limitations had been about to bar her claim, and her attorneys had been unable to obtain an affidavit of merit prior to the expiration of the statute. Notwithstanding this excuse, however, the court granted Dr. Brodell's motion to dismiss and rejected the Plaintiff's motion.

The Plaintiff then moved to reconsider the judgment of dismissal, arguing that her failure to file an affidavit of merit had been due to the "excusable neglect" of her attorneys, which under the Ohio court rules justifies relief from a judgment. She argued that her attorneys had not been aware of the new procedural requirements. Had they known of the amended rule, an affidavit of merit could have been filed, since her attorneys had consulted an expert who had reviewed the case files and concluded that the claims against Dr. Brodell were meritorious prior to the filing of the complaint.

The court granted the Plaintiff's motion and reinstated the case, finding that her failure to file a timely affidavit of merit constituted "excusable neglect" by her attorneys. Dr. Brodell appealed this decision.

By a split decision, the Ohio Court of Appeals affirmed, holding that it was within the trial court's discretion to vacate the judgment that had been entered against the Plaintiff. The Ohio Supreme Court then declined Dr. Brodell's request to review the case.

Litigation Center involvement
The AMA, along with the Ohio State Medical Association and the American Association of Orthopaedic Surgeons, filed an amicus brief in the Ohio Court of Appeals, supporting the defendants' appeal. The amicus brief argued that the Ohio Supreme Court had implemented Rule 10(D)(2) at the request of the Ohio Legislature, to ensure continued access to medical care by requiring due diligence before a plaintiff's filing of a lawsuit. Amici explained that the legislature had found that procedural safeguards were necessary to combat the costs of meritless medical malpractice claims. The amicus brief further explained that Rule 10(D)(2) allowed for additional time to file an affidavit of merit upon a showing of good cause, which should not be found, however, where timely filing was within the plaintiff's control. In this case, the requisite "good cause" was lacking because plaintiff's failure to file timely resulted from her attorneys' failure to research the law.

After the appellate court ruling, amici also submitted a brief to the Ohio Supreme Court, requesting (unsuccessfully) that it review the case.

Ohio Court of Appeals brief

 

Boggs v. Camden-Clark Memorial Hospital, 609 S.E.2d 917 (W.Va. 2004)

Outcome:    Somewhat unfavorable

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

Issue

The issues in this case were the timeliness of pre-filing certificates of merit in a medical malpractice action filed in West Virginia and the constitutionality of a cap on non-economic damages recoverable under West Virginia's medical malpractice statute.

AMA interest

The AMA supports tort reform, specifically the limitation of non-economic damages in medical malpractice cases.

Case summary

Plaintiff Bernard Boggs claimed that Dr. Manish Koyawala caused his wife's death by failing to adhere to the standard of care in anesthetizing her. Mr. Boggs also made claims against United Anesthesia (Dr. Koyawala's anesthesiology group) and Camden-Clark Memorial Hospital for malpractice and various other torts.

The West Virginia Medical Professional Liability Act (MPLA), W.Va. Code §55.7B.1, et seq. provides (among other things) that medical malpractice plaintiffs must serve pre-filing notices of claim and certificates of merit at least 30 days prior to filing suit. Moreover, a revision to the MPLA provides that claims filed on or after July 1, 2003 are subject to a limit on the amount of non-economic damages recoverable. The defendants moved to dismiss, arguing that Mr. Boggs had failed to provide them with properly executed certificates of merit a full 30 days prior to filing suit. The trial court granted the motion, dismissing all claims. Mr. Boggs then asked for leave to amend his complaint, based on a West Virginia procedural rule providing for the “relating back” of claims. Such “relating back” would allow Mr. Boggs to avoid the applicability of the cap on non-economic damages. The trial court denied this motion. Mr. Boggs then appealed to the West Virginia Supreme Court.

The West Virginia Supreme Court decided the case in the plaintiff's favor, reasoning that the lower court had incorrectly denied plaintiff leave to amend his complaint. The Supreme Court held that the plaintiff was entitled to amend his complaint under the “relate back” rule to assert certain “non-medical practice” claims, in addition to the earlier-asserted malpractice claim (which the court held was not subject to the intervening changes to the West Virginia malpractice statute, which reduced the amount of recoverable non-economic damages).

Litigation Center involvement


The Litigation Center, the West Virginia State Medical Association, and several public interest organizations filed an amicus curiae brief supporting defendants Camden-Clark Memorial Hospital, United Anesthesia, Inc., and Manish I. Koyawala, MD. The brief contended that Mr. Boggs lacked standing (in view of the lack of any harm suffered) to challenge the constitutionality of the medical liability reforms.

Supreme Court of Appeals of West Virginia brief

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

Also under Professional liability

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.

Subsequently, 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

Coleman v. Deno, 823 So.2d 303 (La. 2002)

Outcome:    Somewhat favorable

Also under Abusive litigation against physicians and EMTALA

Issue

The issue in this case was the correctness of a finding that a treating physician was liable for intentional malpractice because of his discharge, and order of transfer to another hospital, of a patient who presented in an emergency room complaining of swelling and pain in his arm.

AMA interest

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

Case summary

Louis Coleman presented himself at Jo Ellen Smith Hospital (“JESH”) emergency room at 8:10 p.m., complaining of swelling and pain in his left arm. Dr. Richard Deno examined Coleman and determined that he should receive in-patient intravenous antibiotic therapy.

Instead of admitting Coleman to JESH, though, Dr. Deno elected to transfer him to the emergency room at Charity Hospital of New Orleans (“CHNO”), which had superior and more immediately available services for treatment of Coleman's arm. Dr. Deno contacted the CHNO emergency room and was advised that they would accept Coleman for treatment. Dr. Deno determined that Coleman was in good condition and did not require an ambulance. He therefore ordered the transfer at 10:00 p.m. and discharged Coleman. He did not order the antibiotic therapy, because it would have contaminated the blood cultures that CHNO would need to take.

Coleman arrived at CHNO at 12:21 a.m. At 8:00 a.m., CHNO administered intravenous antibiotics. After further evaluation, the CHNO physicians determined that Coleman's arm was irrevocably damaged and required amputation to save his life.

Coleman sued JESH, CHNO, and various physicians who had treated him, including Dr. Deno. The hospitals settled for nominal payments, and the claims against them were subsequently dismissed. Following a trial, a jury found Dr. Deno liable. He appealed.

The Louisiana Medical Malpractice Act limits damages against a negligent physician to $100,000. However, the Court of Appeal held that Dr. Deno had intentionally discharged Coleman from JESH without providing appropriate treatment. Therefore, the appellate court reasoned that his supposed error went beyond ordinary negligence, and the damage cap in the statute would not apply. The Court of Appeal affirmed the jury award of $4.4 million against Dr. Deno.

The Louisiana Supreme Court reversed the appellate court's finding of intentional wrongdoing but affirmed the finding of negligence. The majority held that Dr. Deno was liable for medical malpractice and that the Medical Malpractice Act should limit the damages against him. A dissenting opinion argued that the jury verdict was completely in error, that Dr. Deno had done nothing wrong, and that judgment should have been entered for him on all counts.

Litigation Center involvement

The Litigation Center joined a Louisiana State Medical Society amicus curiae brief in an attempt to curb such abusive litigation against physicians.

The amicus brief argued that Dr. Deno's decisions were made for legitimate reasons, and that he should not have been found liable at all. The main focus of the brief, however, was that the Court of Appeal had created a new cause of action, based on speculative evidence, that allows plaintiffs and their lawyers to avoid the statutory cap on damages in medical negligence suits. The amicus brief cautioned that the Court of Appeal decision was unsound and would seriously undermine the Medical Malpractice Act.

Louisiana Supreme Court brief.

Coleman v. Soccer Association of Columbia, 69 A.3d 1149 (Md. Ct.App. 2013)

Outcome:    Very favorable

Issue

The issue in this case was whether the common law of Maryland should be modified so that a personal injury plaintiff whose own negligence contributed to his injury should be allowed to recover damages in an action of negligence.

AMA interest

The AMA opposes efforts to expand theories of tort liability, which can be used to further abusive litigation against physicians.

Case summary

James Coleman had volunteered as a soccer coach for a middle school soccer league.  During one of the practice sessions, he leapt up to and hung from the crossbar of a soccer goal.  The goal fell on top of Coleman and injured him.

Coleman sued the soccer league for his injuries, claiming negligence.  He asserted that, under the applicable standard of care, soccer goals should be anchored.  However, he alleged, that this particular goal had not been anchored.

The case was tried to a jury, which found the soccer league negligent for having failed to anchor the goal.  It also found Coleman contributorily negligent.  Because Maryland bars recovery in tort to a plaintiff who was contributorily negligent, the judge entered judgment for the soccer league.

Coleman appealed to the Maryland Court of Appeals.  He asserted that the Maryland law of contributory negligence is obsolete and unfair and should be modified.  He further argued that this change should come from the Court of Appeals rather than the legislature. 

On July 9, 2013, the Court of Appeals, by a split decision, held that any change in the law of contributory negligence should come from the legislature, rather than the courts.  If affirmed the trial court's order of dismissal.

Litigation Center involvement

The Litigation Center, along with the American Tort Reform Association filed an amicus brief supporting the soccer league and opposing any change in the law.

Maryland Court of Appeals brief

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

Also under Professional liability

 

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

AMA interest
The AMA supports tort reform laws.

 

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

Also under Professional liability

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 Professional Liability

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

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

Also under Professional liability

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

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

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

 

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

Also under Professional liability

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.

Freed v. D.R.D. Pool Service, 416 Md. 46 (Md. 2010)

Issue

The principal issue in this case was whether the Maryland statutory cap on non-economic damages provided equal protection of the laws under the federal and state constitutions.

AMA interest

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

Case summary

Connor Freed, a five year old boy, died in a country club swimming pool maintained by  D.R.D. Pool Service.  Freed, through his parents as representatives of his estate, sued D.R.D. Pool Service for his wrongful death.

Following a trial, the jury returned a verdict for Freed of $4,006,442.  Maryland law limited the non-economic damages that may be awarded in a tort action (not just tort actions involving medical liability).  Based on the damage cap, the trial court reduced the jury verdict and entered a $1,002,500 judgment for Freed.  In a post-trial motion, Freed asserted that the damage cap violated the Equal Protection Clauses of the United States Constitution and the Maryland Declaration of Rights.  The trial court rejected that argument, and Freed appealed to the Maryland Court of Special Appeals (the intermediate level appellate court in Maryland), which affirmed.  Freed then appealed to the Maryland Court of Appeals, the highest court in Maryland.

The Maryland Court of Appeals affirmed that part of the trial court decision that had upheld the cap.  The court observed that it had previously found such caps to be valid, and there was no reason to reexamine its earlier decision. 

Litigation Center involvement

The Litigation Center and MedChi, the Maryland State Medical Society joined in an amicus brief to the Maryland Court of Appeals to support the statutory cap on damages.

Maryland Court of Appeals brief.

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

Also under Professional liability

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

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

Also under Professional liability

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

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

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

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

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

Oregon Supreme Court briefPDF File.

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

Also under Professional liability

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

Johnson v. Rockwell Automation, 308 S.W.3d 135 (Ark. 2009)

Issue

The issue in this case was whether two provisions of the Arkansas Civil Justice Reform Act were valid under the Arkansas Constitution.

AMA interest

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

Case summary

Darrell Johnson became injured while trying to repair machinery during the course of his employment.  He felt that the machinery had been designed improperly, and he brought suit in the United States District Court for the Eastern District of Arkansas against the companies that had manufactured the machinery.  The federal judge certified two questions for decision by the Arkansas Supreme Court:  (1) Is a provision of the Arkansas Civil Justice Reform Act that modifies “joint and several liability” by reducing the liability of defendants on account of the fault of potentially liable persons not before the court valid under the Arkansas Constitution?  (2) Is a provision of the Arkansas Civil Justice Reform Act that limits evidence of damages for the cost of medical care to “in network” expenditures valid under the Arkansas Constitution? 

The Arkansas Supreme Court agreed to decide these questions, and it held that both of these laws violated the constitutional Separation of Powers requirement.

AMA involvement

The AMA, the Arkansas Medical Society, and several business groups filed an amicus curiae brief to argue that these provisions of the Arkansas Civil Justice Reform Act should be constitutional. 

Arkansas Supreme Court brief.

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

Also under Professional liability

Issue

The primary issue in this case was whether the Missouri cap on non-economic damages in medical malpractice suits is 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, 237 Ill.2nd 217 (Ill. 2010)

Also under Professional liability

 

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 an 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 Professional liability

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., 2011 Ohio 1817 (Ohio 2011)

Also under Professional Liability

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 until it was removed 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

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

Also under Professional Liability

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 has 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. 2004)

Also under Professional liability

 

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

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

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

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

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

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


Wisconsin Supreme Court brief .

 

Nestlehutt v. Atlanta Oculoplastic Surgery, 286 Ga. 731 (Ga. 2010)

Also under Professional Liability

Issue

The issue in this case is whether the Georgia statutory cap on non-economic damages in a medical malpractice case is 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 is 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)

Outcome:    Very favorable

Also under Expert witnesses, Professional liability

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

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

Outcome:     Very Favorable

Also under Professional liability and Screening Panels

Issue

The issue in this case is 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 an 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 Ins. Co. 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 Professional liability

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 be 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 barrowed 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)

Outcome:     Very favorable

Also under Professional liability

Issue 

The issue in this case is whether the Indiana statutory limitation on damages in medical malpractice suits is 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, the 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 Professional liability

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, will file 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 Professional Liability

Issue

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

Hawaii Intermediate Court of Appeals brief. 

Robinson v. Mountain View Family Care (UT S.Ct.)

Issue

The issue in this case is whether Utah’s limitation on noneconomic damages applies to a wrongful death suit.

AMA interest

Tort reform is the AMA’s highest legislative priority.

Case summary

Paul Ray Taylor, MD prescribed methadone for his patient, Bradford Robinson, AND Mr. Robinson died from an overdose of the drug. His two surviving children, both non-dependent adults, sued Dr. Taylor (and others). They alleged that, as a result of Dr. Taylor’s negligence, the prescription was excessive and this excessive dosage caused Mr. Robinson’s death.

The jury found Dr. Taylor to be 100% at fault. It awarded the plaintiffs $3,000,000 in damages for loss of love, companionship, society, comfort, pleasure, advice, care, protection, and affection. It also awarded $300,000 in punitive damages and $3,213.04 in funeral expenses.

Before entry of final judgment, Dr. Taylor filed a motion to reduce the jury verdict, based on the Utah Health Care Malpractice Act cap on noneconomic damages. Dr. Taylor contended that the $3,000,000 award should be reduced to $440,000. In response, the plaintiffs argued that the damage cap did not apply in a malpractice action involving a wrongful death. They further argued that even if the cap did apply to a wrongful death action, it violated numerous provisions of the Utah Constitution.

The trial court ruled that the damage cap did not apply to a wrongful death suit, even if the claim was based on medical malpractice. Holding that both the Utah Wrongful Death Statute and the Wrongful Death Clause of the Utah Constitution forbade such application, it ordered that judgment be entered in conformity with the jury’s award.

Dr. Taylor has now appealed to the Utah Supreme Court.

Litigation Center involvement

The Litigation Center, along with the Utah Medical Association filed an amicus brief to the Utah Supreme Court. The brief argued that the cap applies in a wrongful death suit and is valid.

Utah Supreme Court brief

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

Outcome:     Very favorable

Also under Professional liability

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.

Stinnett v. Tam (Cal. S.Ct.)

198 Cal. App. 4th 1412 (Cal. App. 2011)

Also under Professional Liability

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.  Also, MICRA was the first statute to cap non-economic damages in medical liability actions and is viewed as the model tort reform law.  The plaintiffs' bar has repeatedly attacked MICRA in the courts and in the legislature.

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, Fifth Appellate District.  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 the present statute.  The Litigation Center and the California Medical Association filed a letter brief with the California Supreme Court to oppose a hearing in that court.

California Court of Appeal brief

Court decision

California Supreme Court letter brief

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

Outcome:    Somewhat unfavorable

Also under Abusive litigation against physicians, Affidavit of Merit, Certificate of Merit, Expert witnesses, and Professional liability

 

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.

 

Summerville v. Thrower, 369 Ark.231, 253 S.W.3d 415 (Ark. 2007)

Also under Affidavit of merit,  and Certificate of merit

 

Issue
This case addressed the application and, perhaps, the constitutionality of the Arkansas affidavit of merit requirement, which applies to medical malpractice cases requiring expert testimony.

AMA interest
The AMA supports timely filing of affidavits/certificates of merit as conditions for the prosecution of legal actions against physicians.

Case summary
Ark. Code § 16-114-209(b) requires that, in medical malpractice cases requiring expert testimony, an affidavit attesting to a breach of the standard of care must be filed within 30 days of the filing of the complaint. Further, the statute states: "If the affidavit is not filed within thirty (30) days after the complaint is filed with the clerk, the complaint shall be dismissed."

The plaintiff, Tomosa Summerville, sued Dr. Rufus Thrower and two other defendants in the Circuit Court of Pulaski County, Arkansas (Little Rock) for negligent obstetrical and gynecological care. She did not file an affidavit of merit within 30 days of the filing of her complaint, and thus it was dismissed. The Order of Dismissal stated: "In so ruling, the Court specifically finds that Ark. Code Ann. § 16-114-209(b) is constitutional."

Summerville appealed to the Arkansas Supreme Court, which on March 15, 2007, reversed the trial court’s dismissal, finding that the affidavit of merit requirement was unconstitutional in part. The Arkansas Supreme Court reasoned that the regular court rules do not require dismissal of a case for failure to file an affidavit of merit within a specified time period, and that the Arkansas Constitution empowers the Supreme Court (but not the legislature) to establish procedural rules for the courts. Thus, the constitutional infirmity in the affidavit of merit requirement is the rigidity of the dismissal requirement. Under the Supreme Court ruling, courts can delay the dismissal of a medical malpractice lawsuit until such time as they think would be proper, even if the plaintiff is unable to proffer expert testimony to support his or her claim.

Litigation Center involvement
The Arkansas Medical Society and the Litigation Center filed an amicus curiae brief to support the statute requiring an affidavit of merit.

Arkansas Court of Appeals brief.

 

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

Also under Professional Liability

Issue

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

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 was 11 years prior to the filing of the lawsuit.  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)

Outcome:    Very favorable

Also under Professional liability

Issue

The issue in this case is how to set off a join tortfeasor’s settlement payment in a medical liability lawsuit, in which the noneconomic damages are 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 Professional Liability

Issue

The issue in this is case is whether the Nevada cap on noneconomic damages applies on a per-person, per-claim basis (as the plaintiffs argue) or whether it applies on a per-incident or per-occurrence basis (as the defendants argue 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 Villega 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 have now 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.  Oral argument was heard on March 8, 2011.

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)

Outcome:     Very unfavorable

Also under Professional liability

Issue

The issue in this case is whether the Missouri statutory cap on damages is 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 Professional liability

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