ISSUE 2:8, AUGUST 2014 – RECENT DEVELOPMENTS

Lost-Consortium Damages for Same-Sex Spouses

Mueller v. Tepler, — A.3d — (Conn. 2014)

Yes, those damages are now available. The Connecticut Supreme Court decision that affirmed their availability, Mueller v. Tepler, — A.3d — (Conn. 2014), was anticipated. Back in 2008, this Court ruled that the state’s marriage laws were unconstitutional to the extent they barred same-sex couples from marrying. Kerrigan v. Comm’r Pub. Health, 957 A.2d 407 (Conn. 2008). Four weeks ago, the Court decided that a same-sex spouse can sue a tortfeasor for lost consortium under the same conditions that allow heterosexual spouses to file and successfully prosecute such actions. This decision was delivered in a medical malpractice case involving a patient whose cancer of the appendix was misdiagnosed as ovarian cancer. When this mistake was discovered, the patient’s cancer became incurable and she subsequently passed away. Her lesbian spouse sued the negligent physician for lost consortium. The defendant moved to dismiss the suit arguing that lost-consortium damages are recoverable only by a plaintiff who had a marital relationship with the tort victim. This motion was supported by precedent: Gurliacci v. Mayer, 590 A.2d 914 (Conn. 1991) (holding that “the formal marriage relation forms the necessary touchstone to determine the strength of commitment between the two individuals which gives rise to the existence of consortium between them in the first instance”). The defendant also cited the Massachusetts Supreme Judicial Court decision, Charron v. Amaral, 889 N.E.2d 946 (Mass. 2008), that denied lost-consortium damages to a same-sex spouse. The Supreme Court of Connecticut disagreed with the defendant and the Charron decision. Following Kerrigan v. Comm’r Pub. Health, it ruled that a tort victim’s same-sex spouse can sue the tortfeasor for lost consortium. This entitlement, it explained, is dictated by the fact that “society has come to accept the view that committed same sex couples who wish to marry are entitled to the same social and legal recognition as committed opposite sex couples who wish to marry.” The Court clarified, however, that an entitlement to consortium damages does not arise as a matter of course. To establish it, the spouse must affirmatively plead and subsequently prove that she and the victim “would have been married or in a civil union if they had not been barred from doing so under the laws of [the] state.” The Court gave no indications on how to prove this counterfactual scenario, but it seems safe to assume that evidence showing a stable and committed relationship that includes cohabitation will suffice. Under the post-Kerrigan regime, of course, compensation for lost consortium would only be recoverable by a married same-sex spouse. This is a very good, well reasoned, and as I said at the outset, much anticipated decision.

Evidential Damage: Liability for Uncertainty in Medical Malpractice Suits

 Saunders v. Dickens, — So.3d — (Fla. 2014)

As I wrote in my book with Ariel Porat, Tort Liability Under Uncertainty, our torts system must develop systematic remedy for wrongful inflictions of evidentiary harm. The Florida Supreme Court’s recent decision, Saunders v. Dickens, — So.3d — (Fla. 2014), is a case in point. Plaintiffs in a medical malpractice suit have adduced solid evidence showing that a patient’s neurologist failed to timely diagnose and treat the patient’s cervical cord compression—a dangerous condition that led to the patient’s quadriplegia and death. In response, the neurologist introduced a deposition given by the patient’s neurosurgeon. The neurosurgeon stated in that deposition that he would not have changed his treatment of the patient even if he knew that the patient’s cervical cord was compressed. The neurosurgeon explained that he would not have operated on the patient’s neck because the patient “had not yet experienced problems with his upper extremities.” This deposition was given when the neurosurgeon was still a codefendant in the suit. Subsequently, he made a settlement agreement with the plaintiffs and was removed from the suit. The neurosurgeon thus had an obvious motive to give this self-serving deposition even at the risk of perjuring himself. The jury returned a general verdict in the neurologist’s favor. The plaintiffs’ appeal against this verdict reached the Florida Supreme Court. The Court decided that the jury was improperly instructed about the burden of proof on the causation issue. Specifically, it ruled that a wronged patient need not prove—counterfactually—that she would have received proper treatment had she not been misdiagnosed by the defendant. This ruling relied on Muñoz v. South Miami Hospital, Inc., 764 So.2d 854, 857 (Fla. 3d DCA 2000). In that decision, the Third District reasoned in relation to several negligent providers of prenatal care that had they “conformed to the applicable standard of care, all doubt would be removed as to whether the pediatrician would have acted the same.” Based on that decision, the Supreme Court issued the following ruling: We hold that a physician cannot insulate himself or herself from liability for negligence by presenting a subsequent treating physician who testifies that adequate care by the defendant physician would not have altered the subsequent care. To do so would alter the long-established reasonably prudent physician standard where the specific conduct of an individual doctor in a specific circumstance is evaluated. It would place a burden on the plaintiff to somehow prove causation by demonstrating that a subsequent treating physician would not have disregarded the correct diagnosis or testing, contrary to his or her testimony and irrespective of the standard of care for the defendant physician. To require the plaintiff to establish a negative inappropriately adds a burden of proof that simply is not required under the negligence law of this State. This ruling comes very close to expressly recognizing the “evidential damage” doctrine, recommended by Ariel Porat and myself. By correctly diagnosing the patient’s cervical cord compression, the neurologist would have given the patient an opportunity to receive proper neurosurgical treatment (timely neck surgery). The patient proved that the neurologist negligently denied him this opportunity. Whether this opportunity would have resulted in the patient’s recovery is uncertain. Things, however, would have been certain had the neurologist diagnosed the patient correctly. The neurologist’s negligence thus did not merely diminish the patient’s chances of cure but also incapacitated him evidentially. Under my and Porat’s taxonomy, the neurologist caused the patient “evidential damage” and he should assume liability for that damage. The court therefore should fix the patient’s evidential incapacitation by shifting the burden of proof to the neurologist. The neurologist must be obligated to adduce evidence that convincingly disassociates him from the patient’s quadriplegia and death. If he fails to adduce such evidence, the court should hold him responsible for the patient’s wrongful death, as decided by the Florida Supreme Court.

Defense Causation Experts

Leavitt v. Siems, — P.3d — (Nev. 2014)

In this case, the Nevada Supreme Court reaffirmed its previous holding in Williams v. Eighth Judicial District Court, 262 P.3d 360 (Nev. 2011), which provides that a defense expert’s testimony regarding alternative causation need not be stated to a reasonable degree of medical probability when it is being used to controvert an element of the plaintiff’s claim, rather than to establish an independent theory of causation. As both Leavitt and Williams explain, the application of the reasonable-degree-of-medical-probability standard hinges on the purpose of the testimony: “Any expert testimony introduced for the purpose of establishing causation must be stated to a reasonable degree of medical probability. However, defense experts may offer opinions concerning causation that either contradict the plaintiffs expert or furnish reasonable alternative causes to that offered by the plaintiff, without having to meet that standard. This distinction exists because when defense expert testimony regarding cause is offered as an alternative to the plaintiffs theory, it will assist the trier of fact if it is relevant and supported by competent medical research. Accordingly, once a plaintiffs causation burden is met, the defense expert’s testimony may be used for either cross-examination or contradiction purposes without having to meet the reasonable-degree-of-medical-probability standard, so long as the testimony consists of competent theories that are supported by relevant evidence or research. This lowered standard is necessarily predicated on whether the defense expert includes the plaintiff’s causation theory in his or her analysis.”

The “Common Knowledge” Exception to the Expert Testimony Requirement

Brouwer v. Sisters of Charity Providence Hospitals, — S.E.2d — (S.C. 2014)

This decision provides a useful application and some good illustrations of the “Common Knowledge” doctrine. Under South Carolina law, a medical malpractice allegation requires no support by expert testimony when it “lies within the ambit of common knowledge and experience, so that no special learning is needed to evaluate the conduct of the defendant.” S.C. Code Ann. § 15–36–100(C)(2) (Supp. 2013). This doctrine was invoked by a patient who suffered a severe allergic reaction while she was treated at a hospital. The patient attributed the reaction to her latex allergy, which she disclosed to the hospital upon her admission. Following that disclosure, the hospital issued the patient a wrist band that identified the latex allergy. In the ensuing suit for malpractice, the patient argued that she was exempted from the general obligation to file an expert testimony. The South Carolina Supreme Court agreed: “We find the substance of [the patient’s] allegation, i.e., that the negligent exposure of a patient to latex with a known allergy can result in an allergic reaction in that patient, is a matter within the common knowledge or experience so that no special learning is needed to evaluate [the hospital’s] conduct at the pre-litigation stage.” The Court accompanied this ruling with a number of useful precedents: Green v. Lilliewood, 249 S.E.2d 910 (S.C. 1978) (holding tubal ligation rendering intrauterine device and other birth control device useless constitutes a matter of common knowledge); Thomas v. Dootson, 659 S.E.2d 253 (S.C.Ct.App.2008) (recognizing expert testimony was not required for claim arising from a surgical drill that burned skin on contact because claim would fall within the common knowledge or experience of laymen); Hickman v. Sexton Dental Clinic, 367 S.E.2d 453 (S.C.Ct.App.1988) (holding evidence presented was sufficient for the jury to infer without the aid of expert testimony a breach of duty to dental patient where patient testified an unsupervised dental assistant rammed a sharp object into patient’s mouth).