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Archive for the ‘Medical & Health Care’ Category

Arbitration Clauses Are Only As Good As the Signatory’s Power to Bind, Obviously

Posted on: November 29th, 2017

By: Shaun Daugherty

A name is just a name when it was found on the signature line of an arbitration agreement between a Tift County Georgia nursing home and one of its residents. A U.S. District Judge in the Middle District of Georgia rejected the nursing home’s request to enforce the agreement and move the litigation to arbitration under the Federal Arbitration Act (“FAA”).  Why?  Because the daughter that signed the agreement did not have the power to do so on her mother’s behalf.

A negligence suit1 against the nursing home was filed in state court following the death of the plaintiff’s mother at the facility. The case was removed to federal court and the defendant moved to have the case dismissed and to compel arbitration pursuant to the arbitration agreement that was signed at the time of the admission of the decedent.  The defendant claimed that the FAA applied and preempted state laws that may say otherwise.

The court agreed that the agreement would have been enforceable under the FAA, that is, if it had been a valid agreement. However, in order to determine the validity of the agreement, the court looked to state law first.  Upon the admission of the mother to the nursing home, the daughter signed the admission paperwork that included the arbitration agreement.  Unfortunately for the nursing home, the daughter did not have power of attorney at the time.  In addition, there was no evidence that the mother had given implied authority to the agreement as she was apparently not aware of its existence and was not present when it was signed by the daughter.  These facts led the federal judge to determine that there was no valid or binding agreement between the mother and the facility and the pending litigation remains pending for a potential jury trial.

This could be a costly lesson for this particular facility and should be a valuable example for other long-term care facilities that have implemented arbitration agreements for this very purpose. It seems basic, but it bears repeating, make sure that a person signing an agreement, if not the resident, has the actual power to bind the resident.  Contract law dictates that an enforceable arbitration clause must be valid between the facility and the resident.  If the resident is not the signatory, put a copy of the power of attorney, or other rights-transferring legal document, in the resident’s file.  If there is no such document, get as much evidence of implied authority as possible and follow up often until you get something official in the file.  It could be the evidence that keeps your company out of a courtroom and in front of an arbitrator.

Plaintiffs would prefer to have the case before a jury where sympathy and emotion can be inflamed with strategic evidence presentation, including graphic photographs of the decedent. Indeed, the attorney for the plaintiff in this particular case is quoted as indicating that litigation often leads to fairer outcomes for his clients compared to arbitration.  Reading between the lines, that generally equates to larger jury verdicts versus arbitration awards.  He also indicated that state court allows for more “robust” discovery.  As those of us that have dealt with these cases know, that typically means extensive, expensive discovery requests by the plaintiffs’ counsel in hopes of obtaining some discovery sanction from the court for alleged failure to respond.  Arbitration can be much more focused and streamline the process.  Bottom line, attorneys for injured parties prefer a jury.

The moral of the story is if you want a valid agreement, you must get the right binding signature.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

 

1. [Davis v. GGNSC Administrative Services LLC, case number 7:17-cv-00107, in the U.S. District Court for the Middle District of Georgia.]

 

Medical Expert Witness Reports in California: When to Produce Them…and When Not To

Posted on: September 20th, 2017

By: Jon H. Tisdale

IMG_0696We are all familiar with the mandate that a defense medical examination report, the so-called “IME”, must be produced upon written request by the patient’s attorney. California law requires production 30 days after the demand (or 30 days after the examination, if demanded prior thereto). Basically, as soon as your expert doctor in any discipline of medicine lays a hand on the plaintiff, he or she must author a report of the examination within 30 days and you must produce if demanded (and they always demand it; it is in every form response to a demand for IME used by the entire plaintiff’s bar). You and your expert must also produce any previous reports created by or provided to the examining expert for review.

What is far less clear is whether you must produce reports containing that expert’s assessment and opinions that are separate and apart from the actual IME report. The custom and practice in California that has evolved over many decades is that medical experts prepare two reports: (1) a report of the examination itself (the IME Report) which contains the current complaints of the plaintiff, the examiner’s findings, results of tests conducted, diagnoses, prognoses and “conclusions” of the examiner, and (2) a report of the examiner’s review of all pertinent medical records, films, images and test results by plaintiff’s treating physicians, together with the examiner’s opinions and anticipated trial testimony regarding what injuries or conditions are accident-related versus those that may not be. It is this writer’s opinion that you may never be required to produce the latter report.

Once you have designated a retained expert, you are now obligated to produce him for an expert witness deposition at the request of the plaintiff’s attorney. Typically, the notice for such a deposition includes a demand to produce records at the deposition. Bear in mind that your obligation to produce the examination report is separate and distinct, and may not wait until your expert’s deposition is noticed. Further, prior to a formal demand for production of documents contained in the expert witness deposition notice, there is nothing in California case law or statute that requires you to produce anything else. More specifically, there is nothing in California law that requires you to produce a Medical Record Review.

At the time of the designation of experts before trial, California law allows plaintiff’s counsel to make a demand for simultaneous exchange of all discoverable reports and writings. When the expert’s deposition is noticed, California law requires production of all materials no later than three business days before the deposition. By implication, this also means discoverable materials, as the statute is clearly not intended to invade privilege or work product. So, the key question that lurks within the statute but is not squarely addressed is this: What constitutes a “discoverable” report, versus a non-discoverable report? The statutory framework is silent, so we must examine case law.

National Steel Products Co. v. Superior Court (1985) 164 Cal.App.3d 476 holds generally that not all work by an expert witness is properly the subject of discovery. The court found that the product of the expert’s services rendered in an advisory capacity was not removed from the protection of the attorney work product doctrine merely because the expert was retained.

Scotsman Mfg. Co. v. Superior Court (1966) 242 Cal.App.2d 527 took the work product protection a step further, stating: “ . . . the mere fact that the expert may have the dual status of a prospective witness and of advisor to the attorney, does not remove the product of his services rendered exclusively in an advisory capacity . . . from the work product limitation upon discovery”. The court goes on to state: “We hold that an expert’s report rendered in an advisory capacity is one designed to assist the attorney in such matters as . . . the manner of presentation of proof, and cross-examination of opposing expert witnesses; matters that are often reflective of the mental processes of the attorney under whose direction the expert works.”

To be sure, there is nothing that prevents opposing counsel from asking the expert in deposition what his opinions are and upon what facts and records the opinions are based. However, when a retained expert assists the attorney is assessing causation, apportionment to preexisting conditions or subsequent events at the specific request of the attorney who hired him, arguably the report which explains these tactical considerations at trial remains work product. Certainly, where an expert’s report reflects the attorney’s analysis of trial issues that must be addressed, it can properly be cloaked with work product protection. The worst case scenario is an in camera inspection of the report and redaction of protected portions. Rarely will it get that far. For example, Medical Record Reviews are not intended as trial exhibits. In 37 years of practice, I have introduced such a report into evidence exactly ZERO times. Why on earth would I want jurors behind closed doors reading that voluminous gibberish and speculating why something is in the report that was not testified to or why something isn’t in the report that was testified to? (That’s a rhetorical question . . . there is no reason to introduce the report and subject your expert to cross-examination on what is in or not in the report.)

In the case of non-examining doctors (i.e., neuroradiologists) and non-medical experts (i.e., biomechanical experts, accident reconstructionists, and engineers) the solution is much simpler. Advise them when you retain them that you do not want a report. All you really need is to know what their trial testimony will be.

Are you 100% protected if the other side learns of a Medical Record Review and you decline to produce it? No, it’s just not that clear. However, I think the best practice is to not share the report or even acknowledge that such a report exists. If the other side finds out that there was a written Medical Record Review, make them seek a court order that it is not work product. On the other hand, if the Medical Record Review only hurts the plaintiff’s case and only helps your defense, you can consider sharing it to gain advantage in negotiations at a Mediation. The only downside to sharing it is that if the case does not resolve, your expert will be cross-examined on the review and his expert opinions at trial may be limited to what is contained therein.

If you have any questions or would like more information, please contact Jon Tisdale at [email protected].

Informed Consent! What Is It Good For? Absolutely Nothing. Say It Again.

Posted on: August 4th, 2017

By: Shaun Daugherty

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Ok. That may be a bit extreme. After all, it is in the American Medical Association’s Code of Medical Ethics and the concept is addressed in most medical professional organizations guidelines in one form or another. And let’s not forget that it is mandated by statute and common law in most states. So the bottom line is that it is seen universally as a good idea for a medical provider to obtain informed consent from a patient prior to providing therapy, care, or treatment. While the precise legal requirements differ from state to state, the gist is that a medical provider should provide sufficient information for a patient to make an informed decision as to whether to accept the treatment. Generally speaking, the patient should be informed of the diagnosis, the alternative treatment options, the likelihood of success, the major risk/complications associated, and the consequences of just doing nothing.   Fantastic. You have obtained informed consent from your patient. I ask again, what is it good for?

In the legal context, in most situations, if you do not obtain informed consent, a patient has a cause of action to sue a medical provider for lack of informed consent. The theory being that the patient was not given sufficient information to make an educated decision about their care, and if they had been told “X,” they never would have agreed to the procedure. The “X” is usually one of the risks/complications of the procedure that the patient experienced, unfortunately.

On the defense side of a malpractice action, the informed consent has very limited value unless there is actually a claim of lack of informed consent made by the patient. In that scenario, informed consent is a relevant and target point of contention with the written informed consent form front and center for the jury. Without the specific claim being alleged, many courts are ruling that the informed consent forms that are signed by the patients are inadmissible pieces of evidence and are redacted from the records. They are also ruling that informed consent cannot be discussed in any form or fashion unless for the purpose of impeachment. That is, if the patient denies knowing that a particular risk was possible.

The typical scenario is that a patient suffers one of the known risks or complications of a procedure, let’s say a nerve injury during parathyroid surgery, and then sues the provider for the injury that they suffered. The provider says that it is a known risk of the procedure and it was not caused by negligence. The informed consent form will typically have the specific risk listed as one of the possible complications of the procedure and the defense would like to show the form to the jury to say, “see, we told them this was a risk of the procedure.” The claimant wants to keep the issue of informed consent out of evidence because, as the courts have reasoned, they are afraid that the jury could be misled to believe that the patient consented to the injury itself instead of focusing on whether there was a deviation in the standard of care.

One of the practical problems from a defense standpoint is the juries’ expectations with regard to their own common experiences. That is, the average juror of a medical negligence case will be very familiar with informed consent forms and will often look for them in the records during deliberations to either confirm or refute whether something is or is not a known risk/complication. If it is absent from the records, this could become a problem for the defense as the juror may believe that informed consent was not obtained and become a reason to find fault, even though it was not an issue in the case. An otherwise non-existent burden of proof has been created for the defense to disprove an issue that was never part of the case. Defending a medical negligence case can be difficult enough without having to chase phantoms.

We will keep looking for the legal trends and implications to govern ourselves accordingly while medical providers need to keep getting written informed consent as often as possible. After all, informed consent is ultimately good for something, perhaps the most important thing, patient information and decision making.

If you have any questions or would like more information, please contact Shaun Daugherty at [email protected].

The Supreme Court Buys Into Argument that Plaintiffs Should Not Be Permitted to Forum Shop

Posted on: June 22nd, 2017

By: Kristian Smith & Robyn Flegal

The U.S. Supreme Court decided one of the most important mass tort/product liability decisions ever Monday, effectively ending forum shopping or “litigation tourism.” In its 8-1 ruling, the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court, No. 16-466 (U.S. June 19, 2017) overturned a California Supreme Court decision that had allowed hundreds of out-of-state patients who took Bristol-Myers Squibb’s blood-thinning medication Plavix to sue the company in California.

For years, plaintiffs involved in “litigation tourism” have relied on broad interpretations of personal jurisdiction to sue large companies in plaintiff-friendly jurisdictions. Ever since “general” personal jurisdiction was limited by the Supreme Court three years ago in Daimler AG v. Bauman, 134 S.Ct. 746 (2014) to those states where a corporation is incorporated or has its principal place of business, plaintiffs have tried to use a similar broad interpretation of “specific” personal jurisdiction to forum shop. The California Supreme Court accepted this theory when it allowed plaintiffs from all over the country to sue Bristol-Myers Squibb in California.

But the Supreme Court didn’t buy it and reiterated that the lawsuit itself must arise out of or relate to the defendant’s contacts with the forum.

The Supreme Court rejected the California Supreme Court’s ruling that any “substantial connection” between a corporate defendant’s activities and California, whether or not causally related to a plaintiff’s claimed injuries, would suffice to support jurisdiction. The California Supreme Court conferred jurisdiction over Bristol Myers-Squibb where the plaintiffs did not reside in the state and did not sue over a drug that they purchased in the state. The Supreme Court called this approach a “loose and spurious” form of general jurisdiction.

As the Court held, “a defendant’s general connections with the forum are not enough.” This means that plaintiffs may “join together in a consolidated action in the States that have general jurisdiction over BMS.” Otherwise, “the plaintiffs who are residents of a particular State… could probably sue together in their home States.”

This ruling ends the days of plaintiffs flocking to accommodating jurisdictions to bring claims against large companies, and it is already having widespread effects. Based on the Court’s ruling on Monday, a St. Louis judge declared a mistrial in a talcum powder trial underway in St. Louis Circuit Court based on lack of personal jurisdiction. The mistrial in St. Louis was declared in a trial where a Missouri man and two out-of-state plaintiffs sued Johnson & Johnson and its supplier Imerys Talc America over a claim that talcum powder in its products caused ovarian cancer. Johnson & Johnson’s lawyers prevailed, arguing that the packaging and labeling company with a plant in Missouri was simply one of the company’s contractors, and played no role in establishing jurisdiction over out of state plaintiffs.

For any questions, please contact Kristian Smith at [email protected] or Robyn Flegal at [email protected].

Florida Supreme Court Strikes Down Damage Caps in Med Mal Cases

Posted on: June 9th, 2017

By: Melissa A. Santalone

Almost a year to the day after hearing oral argument on the case of North Broward Hospital District v. Kalitan, the Florida Supreme Court finally issued its decision striking caps on noneconomic damages in medical malpractice cases, holding they violate the Equal Protection Clause of the Florida Constitution. The Court reviewed and agreed with the Fourth District Court of Appeal’s ruling that also found Fla. Stat. § 766.118(2) and (3) violate the Equal Protection Clause. Many in the Florida legal community anticipated this outcome, since in 2014, the Court stopped just short of striking all noneconomic damage caps in med mal cases in Estate of McCall v. U.S., 134 So.3d 894. In McCall, the Court limited its holding that noneconomic damage caps were unconstitutional to wrongful death medical negligence suits.

Section 766.118, originally enacted in 2003, imposed caps on noneconomic damages in medical malpractice personal injury lawsuits ranging from of $500,000 to $750,000 per claimant for non-catastrophic injuries, depending on whether they were caused by a “practitioner” or “nonpractitioner,” as defined by the statute. It also limited noneconomic damages to between $1 million and $1.5 million for catastrophic injuries, which includes things like the loss of a limb, severe burns, or severe brain injuries, and those injuries resulting in a permanent vegetative state. 

In the Kalitan case, the plaintiff had undergone surgery for carpal tunnel syndrome, wherein her esophagus was perforated during intubation. After awaking from surgery and complaining of chest and back pain, she was examined by a doctor, who failed to discover her injury, and she was released from the hospital. The next day she was found unresponsive and rushed back to the hospital, where she underwent emergency surgery and spent weeks in a drug-induced coma. The plaintiff underwent a long course of rehabilitation, including additional surgeries, to be able to eat again and alleged she continues to suffer from physical pain and emotional trauma from the incident. At trial, the jury awarded the plaintiff $4 million in noneconomic damages; however, the plaintiff’s recovery was reduced by close to $2 million due to the damage caps.

Section 766.118 was initially enacted under the rationale that it was necessary to combat a medical malpractice crisis where ever-escalating insurance premiums were driving doctors out of state or into retirement, effectively limiting Floridians’ access to healthcare. The 4-justice plurality of the Court found the statute’s effect was arbitrary and unreasonable. It compared the hypothetical outcomes to claimants with varying degrees of injury, and determined the statute arbitrarily limited the recovery of the most seriously injured. Moreover, the plurality concluded, it did so without any rational relationship to the stated objective of decreasing medical malpractice premiums, since there was no mechanism to ensure savings were passed from insurance companies to doctors.  The dissent opinion, signed by 3 justices, found a rational relationship did exist between the statute and the legitimate state interest of decreasing medical malpractice premiums, and argued the plurality misapplied the proper test used in equal protection challenges.

This decision is a win for the Plaintiffs’ bar, which has always been vehemently opposed to caps, and it will likely send shockwaves through the Florida medical and insurance realms. Insurers will need to reevaluate whether the premiums they charge are adequate in light of the increased risk they now face and will need to be prepared to see an increase in the number of suits they must defend against. Likewise, those working in the medical field must decide if the coverage they currently have will adequately protect their personal assets if the worst should happen.

For any questions regarding the Florida Supreme Court’s decision, please contact Melissa A. Santalone at [email protected].