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Archive for the ‘Medical & Health Care’ Category

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Section 766.118, originally enacted in 2003, imposed caps on noneconomic damages in medical malpractice personal injury lawsuits ranging from of $500,000 to $750,000 per claimant for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].

 

Ethical Code Does Not Prevent Expert Testimony

Posted on: April 24th, 2017

By: Shaun Daugherty

In a recent, factually interesting decision by an Illinois Court of Appeal, a defense verdict in a dental malpractice case was overturned for a variety of reasons related primarily to the defendant’s expert’s use of skulls during his testimony. However, one of the side issues also piqued my interest. The case involved dental implants, and a treating oral and maxillofacial surgeon provided testimony that the dentist that placed the implants deviated from the applicable standard of care.

During cross-examination by the defendant’s attorney, the oral surgeon was confronted with G.1.08 of the American Association of Oral and Maxillofacial Surgeons’ Code of Professional Conduct titled “Fairness in dealing with colleagues” that reads: “Oral and maxillofacial surgeons who wish to serve as expert witnesses must not do so in cases for which they also served as one of the patient’s treating doctors.” The oral surgeon admitted that he was a treating doctor, but attempted to clarify that the code did not apply to the situation as the dentist that placed the implants was not a “colleague.”

The Illinois Court of Appeals addressed this line of cross-examination. While it was not the issue that formed the basis of the reversal, the court wanted to provide direction to the trial court for the retrial. Specifically, the three-panel opinion determined that the cross-examination was improper and should not have been allowed. The opinion indicated that only the Illinois legislature and the courts may determine the admissibility and proper scope of expert testimony in medical malpractice actions. The private accrediting bodies “may not attempt to thwart their members from testifying as expert witnesses against their colleagues by declaring such testimony to be a violation of professional ethics.” Therefore, the type of questioning was both irrelevant and in violation of public policy and should not have been permitted.

It is interesting because for years, I have had this particular Code of Professional Conduct used by opposing counsel in an attempt to quell the supporting testimony of treating oral surgeons in cases where I was defending the dental professional. Often, the oral surgeon would have expert opinions that the defendant met the standard of care, but this particular ethics consideration was brought to their attention in a pre-deposition meeting with the patient’s attorney, and they would decline to provide such testimony on the record. Thus, the Code of Ethics is being used as both a sword and a shield for expert testimony.

This decision, while not binding in other states, still provides sound arguments for the application of similar issues in our own backyard. Any qualified expert should be able to provide opinions that a medical provider met or deviated from the standard of care, even if they too provided care. The search for truth should not be restricted for either side by the use of an ethical rule as long as the testimony is from a qualified expert and is, in fact, the truth.

For more information, please contact Shaun Daugherty at [email protected].

Federal Court Rejects Jane Doe’s Wrongful Conception Claims Too

Posted on: March 21st, 2017

By: Shaun Daugherty

It made headlines when several families around the county sued Atlanta based sperm bank Xytec Corp. for claims that they were lied to regarding the specific characteristics of a donor that had been responsible for the birth of 36 children through the bank. The bank had promoted donor 9623 as having a PhD and being physically and mentally healthy. As it turned out, Mr. James Aggeles was a convicted felon who had not finished college and had multiple mental health diagnoses.

At the state court level, a suit filed by Angela Collins and Margarent Hanson, Canadian residents, was dismissed in 2015. The judge ruled that the allegations of fraud, negligence and product liability were essentially claims alleging wrongful birth which is not a recognized cause of action in Georgia. Wrongful birth claims are ones contending that the parents would have not had a child if they have been fully aware of a child’s condition. Typically these claims arise in the scenario of undiagnosed disabilities or conditions materially affecting the fetus and later child development. Plaintiff’s sue for the damages related to the increased cost of raising a disabled child.

In 2016, an Ohio woman, identified as Jane Doe, filed suit against Xytec Corp. in federal court related to her interactions with the company and receipt of donor 9623’s sperm. Eleven different counts were alleged, including fraud, negligence, and breach of warranty. Defendants immediately moved to dismiss the complaint for failure to state a claim as they argued that all of Ms. Doe’s claims were based in a theory of wrongful birth and not actionable in Georgia. Plaintiff argued that it was not a case of wrongful birth, but one of wrongful conception, which is recognized under the law. Wrongful conception claims arise when a sterilization or abortion procedure goes wrong and a live birth results.

On Friday, March 17, 2017, US District Judge Thomas Thrash, Jr. issued his ruling granting the defendants’ motion and dismissed the case. The Judge explained the difference between accepting one theory over the other was a matter of the measure of damages.  A successful wrongful conception claim could recover the expenses for an unsuccessful sterilization procedure, pain and suffering, medical complications, cost of delivery, lost wages and loss of consortium. By contrast, “wrongful birth claims are disfavored because they require the court to decide between the value of the life with disabilities and the value of no life at all.” The Judge found that Ms. Doe’s claims were rooted in the theory that she would not have used the sperm from donor 9623 if she had known of his true nature and, therefore, her child would not have been born, i.e. a wrongful birth claim.

As pointed out by the state court judge in Ms. Collins and Ms. Hanson’s case, this appears to be another instance where science has overtaken the law and leaves no remedy to the parents.

For any questions, please contact Shaun Daugherty at [email protected].

How Fine is the Line Between Medical Malpractice and Life in Prison?

Posted on: February 22nd, 2017

By: Shaun Daugherty

It was all over the major news networks and the print media. On Monday, February 21, 2017, a Dallas, Texas jury sentenced Dr. Christopher Duntsch, neurosurgeon, to life in prison for a “botched surgery.” While he was initially arrested on five counts of aggravated assault, the 13-day trial apparently focused on one 74-year old patient and the infliction of an injury that constituted a first-degree felony under the circumstances. The jury apparently had to find that Dr. Duntsch acted “intentionally, knowingly, recklessly, or with criminal negligence” in injuring an elderly person.

In reading several articles on this story, I had to go back and make sure that I was not reading a case alleging medical negligence and punitive damages. The fact pattern was strikingly similar. The elderly patient at issue reportedly lost a significant amount of blood during the procedure and lost the full use of her legs. These are complications that are not uncommonly alleged in surgical medical negligence cases. The subsequent treating surgeon testified that he found implants placed in muscle instead of bone, a screw directly placed into her spinal cavity and severed nerves. Testimony that one would expect from an expert opinion on the standard of care and elements of causation. He was quoted as saying that the prior surgery was “as egregious as you can image.” A motion in limine would hopefully keep this particular opinion out of a civil trial.

During Dr. Duntsch’s trial, the jury was also provided testimony from multiple other patients that experienced “complications” following their own encounters with the surgeon dubbed “Dr. Death.” This is the type of evidence that one might expect to be presented in the punitive damages phase of a medical negligence trial. This is the type of evidence that would be presented to show the “reckless disregard for the consequences.”

Obviously there are major differences between criminal and civil law and the evidence to prove each. However, when you read of medical providers being convicted and imprisoned for fact patterns that resemble those that we deal with in the medical negligence claims, you start to wonder. Remember Conrad Murray, Michael Jackson’s physician, who was convicted of involuntary manslaughter for exercising his medical judgment? I recall the media reports in that case sounded more like medical negligence rather than a criminal case.

These are examples of exceptional cases with extenuating circumstances. A civil lawsuit leading to monetary recovery is the typical scenario and then the case ends. However, in the right circumstances, a jury could find that the same evidence presented to prove negligence, gross negligence and/or punitive liability in the civil setting could also lead to jail time in a criminal trial.

For any questions, please contact Shaun Daugherty at [email protected].

FDA’s Draft Guidance on When to Submit A 501(k) Bolsters Potential for Medical Device Manufacturers to Argue that State Tort Claims are Impliedly Preempted

Posted on: September 8th, 2016

Doctor workplace with digital tablet and stethoscope

By: Michael Bruyere and Amanda Hall

On August 8, 2016, the FDA issued draft guidance on “Deciding When to Submit a 510(k) for a Change to an Existing Device.” Current regulations provide that a manufacturer of a medical device must submit a premarket notification submission to the FDA at least 90 days before beginning to sell a device that has been changed or modified in any manner “that could significantly affect the safety or effectiveness of the device.” 21 C.F.R. § 807.81(a)(3). The draft guidance clarifies this language, providing more specific examples of when a 510(k) submission must be made.

The draft guidance, although it is not final nor binding, is significant not only because it should assist medical device manufacturers in determining when a 510(k) submission should be made. The increased clarity also bolsters the likelihood of a medical device manufacturer being able to successfully employ an implied preemption argument akin to those that have been successfully used with respect to generic drugs (see PLIVA v. Mensing, 564 U.S. 604 (2011) and Mutual Pharmaceutical Co. v. Bartlett, 133 S.Ct. 2466 (2013)) to defeat state law tort claims. In the generic drug context, a generic drug manufacturer cannot unilaterally change its label because it has the duty of sameness with respect to the brand drug. Accordingly, courts have concluded that state law claims against such manufacturers – typically alleging that the generic drug manufacturer was somehow negligent by failing to immediately provide a specific warning on its label – are impliedly preempted because the generic drug manufacturer could not immediately alter its label on its own without violating the law. As the Court said in Mensing, “[i]f the Manufacturers had independently changed their labels to satisfy their state-law duty, they would have violated federal law…Thus, it was impossible for the Manufacturers to comply with both their state-law duty to change the label and their federal law duty to keep the label the same.”

To date, attempts by medical device manufacturers to make an analogous argument, i.e. that they could not immediately change their device to make it safer (thus complying with a duty pursuant to state tort law) because such a change would require submitting a new 510(k) to the FDA and waiting 90 days (thus complying with an obligation under federal law), have been unsuccessful. By clarifying instances in which a 510(k) must be submitted, the draft guidance increases the possibility of medical device manufacturers successfully defending against state tort claims on this basis.