Sexual Abuse by a Gynecologist Meets Tort Reform

By Alex Stein

A gynecologist’s patient filed a suit alleging that he touched her inappropriately and made sexually charged comments during her office visits. The suit was filed against the gynecologist and his employer. The plaintiff’s allegations against the gynecologist included medical negligence and intentional infliction of emotional distress. Her cause of action against the employer consisted of negligent supervision and negligent infliction of emotional distress. After settling her suit against the gynecologist for an undisclosed amount, the plaintiff attempted to proceed with her action against the employer. The employer moved for summary judgment, which was granted by the trial judge and affirmed by the court of appeals. The plaintiff’s appeal to the Supreme Court of Kansas was equally unsuccessful: Cady v. Schroll, — P.3d —-, 2014 WL 265551 (Kan. 2014).

Here is why: Read More

Unconstitutional Time Bars in Washington

By Alex Stein

Schroeder v. Weighall — P.3d —-, 2014 WL 172665 (Wash. 2014), is the second Washington Supreme Court’s decision that voids the Legislature’s time bar for medical malpractice suits.  The first decision, DeYoung v. Providence Medical Center, 960 P.2d 919 (Wash. 1998), voided an eight-year repose provision for violating the constitutional prohibition on special privileges (Article I, section 12). This statutory provision benefited healthcare providers and their insurers at the expense of injured patients whose cause of action accrued over a long period of time and consequently tolled the statute of limitations.  The Court held that the Legislature had no rational basis for blocking suits filed in connection with more-than-eight-years-old incidents of medical malpractice. The Court based that decision on the finding by the National Association of Insurance Commissioners that old medical malpractice incidents account for “less than one percent of all insurance claims nation-wide.” This finding convinced the Court that the “relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny.”

In Schroeder, the Court used the same constitutional prohibition to void a new statutory provision that eliminated tolling of the statute of limitations for minors in medical malpractice actions. Read More

Is Fetus a “PATIENT”? More on Bypassing Damage Caps

By Alex Stein

In Virginia and many other states, statutory caps limit the amount of compensation that an aggrieved patient can recover from her doctor. To bypass this limit, a victim of medical malpractice may want not to be considered a “patient.” This motivation brought the IS FETUS A PATIENT? question to the Virginia Supreme Court in Simpson v. Roberts, — S.E.2d —-, 2014 WL 92032 (Va. 2014).

Read More

The “Emergency Room” Doctrine (a.k.a. Doctors’ Virtual Immunity Against Suit)

By Alex Stein

Under Georgia statute (that exists in other states as well), allegations of medical malpractice “arising out of the provision of emergency medical care in a hospital emergency department or obstetrical unit or in a surgical suite immediately following the evaluation or treatment of a patient in a hospital emergency department” must show “gross negligence” and be proven by “clear and convincing evidence.” OCGA § 51–1–29.5(c). Failure to prove the defendant’s gross negligence by clear and convincing evidence should result in a dismissal of the plaintiff’s suit.

In a very recent case, Johnson v. Omondi, — S.E.2d —-, 2013 WL 6009480 (Ga. 2013), the Supreme Court of Georgia interpreted and applied this provision.

Based on its prior decisions, the Court defined “gross negligence” as the defendant’s “failure to exercise even a slight degree of care.” The Court also ruled that in deciding a motion for summary judgment, the trial judge “must view the evidence presented through the prism of the substantive evidentiary burden”: clear and convincing evidence. Hence, it is the plaintiff’s burden to produce evidence upon which a reasonable jury could determine that the defendant completely failed to deliver the requisite medical care. Specifically, the plaintiff’s expert witness must give an unequivocal account of the defendant’s profound unprofessionalism. Absent such testimony, the trial judge should dismiss the suit summarily. Read More

Georgia’s Medical-Malpractice Reform Bill

By Alex Stein

Georgia’s Senate is considering a far-reaching medical malpractice reform: see here. If implemented, this reform would substitute the conventional malpractice regime by a no-fault compensation scheme for patients sustaining medical injuries. This scheme will be modeled on the extant workers’ compensation regime. An injured patient will submit her claim to a special administrative tribunal—the Patient Compensation Board—that will determine her eligibility for compensation promptly and expediently.

Will this reform succeed? Read More

Medical Malpractice and Wrongful Death under Maryland’s Statutes of Limitations and Repose

By Alex Stein

On October 18, Maryland’s Court of Appeals has delivered a precedential ruling on the applicability of the state’s limitation and repose statutes to suits for wrongful death that allegedly resulted from medical malpractice.  Mummert v. Alizadeh— A.3d —-, 2013 WL 5663105 (Md. 2013).

This ruling dealt with the following set of facts:

A family doctor failed to address his patient’s cancer symptoms between 1997 and 2004. In 2004, the patient was diagnosed with cancer that could not be treated successfully. The patient died of cancer on March 14, 2008. On March 8, 2011, her surviving family members filed a wrongful death action against the doctor, who claimed in response that the action was time-barred. The doctor relied on the 3-year limitations period set for wrongful death actions generally and on Maryland’s Health Care Malpractice Claims Act that sets two alternative expiration dates for suits against physicians: “(1) Five years of the time the injury was committed; or (2) Three years of the date the injury was discovered.” (§ 5–109 of the Courts and Judicial Proceedings Article of the Maryland Code).

The Court dismissed both defenses and allowed the plaintiffs to proceed with their suit. Read More

Oregon’s Unfulfilled Tort Reform

By Alex Stein

Oregon has a statute capping noneconomic damages recoverable in medical malpractice suits at $500,000.

The Oregon Supreme Court decided that this cap is unconstitutional insofar as it clashes with a person’s right to recover full jury-assessed compensation for injuries recognized as actionable in 1857 when Oregon adopted its constitution. Specifically, it ruled that Article I, sections 10 and 17, of the Oregon Constitution entrench this right and deny the legislature the power to curtail it: see Smothers v. Gresham Transfer, Inc., 23 P.3d 333 (Or. 2001), and Hughes v. PeaceHealth, 178 P.3d 225 (Or. 2008). This ruling separated the constitutionally protected pre-1857 causes of action, which the statutory cap cannot curtail, from the constitutionally unprotected causes of action that came into existence after 1857 and that can consequently be capped.

Consequently, in order to reduce a jury’s award of noneconomic damages to $500,000, the defendant must show that the plaintiff’s complaint was not actionable before 1857. To adjudicate such claims, courts must carry out an historical investigation into Oregon’s medical malpractice law.

The Court’s most recent decision on that issue, Klutschkowski v. Oregon Medical Group, — P.3d —-, 2013 WL 5377913 (Or. 2013), made this task easy to perform. Read More

Using Malpractice Laws to Sabotage Roe v. Wade

By Alex Stein

This method was pioneered by South Dakota and Indiana that set up special “informed consent” requirements for abortion procedures, SDCL § 34-23A-10.1 and IC 16-34-2-1.1. Under these requirements, physicians must tell the pregnant woman (inter alia) that “the abortion will terminate the life of a whole, separate, unique, living human being” with whom she has a relationship that enjoys constitutional protection; that “human physical life begins when a human ovum is fertilized by a human sperm”; that the abortion might lead to depression, suicide ideation, and suicide; and that she should “view the fetal ultrasound imaging and hear the auscultation of the fetal heart tone”; and also have the name, address, and telephone number of a nearby pregnancy help center.

The prize for innovation and ingenuity in this area, however, squarely belongs to Louisiana, whose special abortion-malpractice statute—Act 825, La. Rev. Stat. § 9:2800.12—was upheld this week in K.P. v. LeBlanc, — F.3d —-, 2013 WL 4746488 (5th Cir. 2013).  Act 825 complements Louisiana’s “Woman’s Right to Know Act,” La. Rev. Stat. § 40:1299.35.6, that established “informed consent” requirements for abortion similar to those of South Dakota and Indiana. Read More

Bypassing Damage Caps

By Alex Stein

Damage caps are widespread. A typical cap provision precludes medical malpractice victims from recovering more than a specified sum for pain, suffering and other noneconomic harms. These caps vary between $250,000 (as in California that might soon increase its cap by a referendum) and a $1,500,000-$500,000 scale (as in Florida). Some state supreme courts (e.g., Georgia, Illinois, and Wisconsin) voided the caps as unconstitutional, but many others (e.g., Alaska, California, Louisiana, Mississippi, Nebraska, Ohio and West Virginia) have upheld their constitutionality. In a few states (e.g., Florida and Texas), statutory caps had to be corrected to secure their alignment with state constitutions.

Damage caps are controversial.  Some people believe that they help contain the costs and secure the affordability of medical care. Others believe that caps shortchange malpractice victims and weaken the deterrence of malpractitioners. People falling into the first group generally support tort reforms. People falling into the second group ardently oppose those reforms. For my middle-way position—that supports procedural tort reforms that block away unsubstantiated malpractice suits, while opposing damage caps and other substantive tort reformssee here.

The plaintiffs bar expectedly tries to bypass the caps: see Catherine Sharkey’s important article that identifies the “crossover” dynamic: Facing caps on their clients’ noneconomic recovery, patients’ attorneys boost and vigorously pursue their clients’ claims for economic damages with the jurors’ blessing and approval.

Another, relatively recent, way of bypassing the cap is splitting the “occurrence” or “event” of medical malpractice into several events or occurrences. When successful, this strategy doubles, or more than doubles, the recoverable compensation amount. Read More

The Merit of Merit Affidavits

By Alex Stein

Similar to many other states, Oklahoma has a statute prescribing that suits alleging medical malpractice must be verified by an affidavit from a qualified medical expert. Suits unaccompanied by a proper affidavit must be stricken out. This statute is part of what I call – and commend – as a procedural tort reform: it allows courts to get rid of unmeritorious suits against doctors and hospitals early in the process. The statute, however, recently became a dead letter after being pronounced unconstitutional by Oklahoma’s Supreme Court for the second time in a row (Wall v. Marouk, — P.3d —-, 2013 WL 2407160 (Okla. 2013)). Evidently, this Court does not view merit affidavits as favorably as I do.  Let’s see why. Read More