ISSUE 2:3, March 2014 – Recent Developments

March 14, 2014

Medical Malpractice Decision of the Year: Florida Supreme Court voids the $1M cap on noneconomic damages for a patient’s wrongful death

McCall v. United States, — So.3d —, 2014 WL 959180 (Fla. 2014)

We are just in mid-March, but yesterday’s decision of the Florida Supreme Court, McCall v. United States, — So.3d —, 2014 WL 959180 (Fla. 2014), is – and will likely remain – the most important medical malpractice decision of 2014.

The case at bar presented a particularly egregious example of medical malpractice: a young woman died after delivering a healthy baby as a result of preventable loss of blood. This tragic event took place at an air-force base hospital. The victim’s survivors therefore filed their medical malpractice suit with a federal court pursuant to the Federal Tort Claims Act (FTCA). Under FTCA, the suit was governed by Florida law. Following bench trial, the United States District Court found the United States liable, but applied Florida’s $1,000,000 cap on wrongful-death noneconomic damages recoverable for medical malpractice. On appeal, the victim’s survivors challenged the cap’s constitutionality. The Eleventh Circuit affirmed the District Court’s decision, but certified questions of Florida constitutional law with regard to the cap.

The Florida Supreme Court rephrased the certified questions as follows:

Does the statutory cap on wrongful death noneconomic damages, Fla. Stat. § 766.118, violate the right to equal protection under Article I, Section 2 of the Florida Constitution?

Florida’s Equal Protection Clause mandates that “All natural persons, female and male alike, are equal before the law.” Hence, “everyone is entitled to stand before the law on equal terms with, to enjoy the same rights as belong to, and to bear the same burden as are imposed upon others in a like situation.” Caldwell v. Mann, 26 So.2d 788, 790 (Fla. 1946).

The challenged statute, Fla. Stat. § 766.118, provided that “The total noneconomic damages recoverable by all claimants from all practitioner defendants [in the event of wrongful death] shall not exceed $1 million in the aggregate.” The capped damages included pain, suffering, lost consortium, emotional distress and other noneconomic losses.

Bazsed on its previous precedent, St. Mary’s Hospital, Inc. v. Phillipe, 769 So.2d 961 (Fla. 2000), the Court ruled that the cap violates the Equal Protection Clause “because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants.” The Court explained that, under this cap, medical malpractice claimants “will not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims.” For example, in the case at bar, the noneconomic damages suffered by the victim’s parents were assessed at $1,500,000 and her surviving son’s noneconomic damage was determined to be $500,000. The cap reduced those damages by 50% for each claimant (from $2M to $1M in the aggregate). If the cap were to apply, each of the victim’s parents would have recovered $375,000 and her son would have received $250,000. Contrast this case with an identical scenario featuring a victim with no parents: under that scenario, the victim’s child would recover $500,000 rather than $250,000.

After finding this inequality, the Court went on to determine whether it can be justified by a compelling state interest. In that most important part of its decision, the Court has found no rational relationship between the cap and its stated purpose: “the alleged medical malpractice insurance crisis in Florida.” The Court ruled in that connection that the Task Force responsible for the cap’s enactment based its recommendations to the Legislature on fact-free speculations about “medical malpractice crisis” and the cap’s ability to resolve it. Based on amici briefs and important studies by Tom Baker, Neil Vidmar and other leading scholars, the Court determined that there is no medical malpractice insurance crisis in Florida. Moreover, the Court used empirical data to project that, had there been such a crisis, it could not be alleviated by caps on noneconomic damages (for my argument that excessive medical liability should be fixed by narrowing the applicable liability rules rather than by capping damages, see here, at pp. 1253-57).

I predict that this important decision will soon be used to challenge similar caps that exist in other states. Whether those challenges will succeed is hard to tell at this point.

March 8, 2014

Merit Affidavits and the Poor

Traylor v. Gerratana, — A.3d —, 2014 WL 839165 (Conn.App. 2014)

Two days ago, the Appellate Court of Connecticut affirmed the dismissal of an indigent plaintiff’s action to void a statute requiring plaintiffs to support malpractice suits against medical professionals by an opinion letter from a similar healthcare provider. The plaintiff claimed that this statute, Conn. General Statutes § 52–190a, is unconstitutional insofar as it applies to indigent plaintiffs who cannot afford paying medical experts’ fees. The plaintiff filed this action against the State of Connecticut, a number of state legislators and courts, and the Connecticut Medical Insurance Company. He asked the court to grant him declaratory judgment, injunctive relief, and compensation.

The court dismissed the action due to the presence of the sovereign and legislative immunities and the plaintiff’s failure to show a violation of his constitutional entitlement. The Appellate Court affirmed that decision.

In most states, similar merit-affidavit requirements presented no constitutional problems. Arkansas, Oklahoma, and possibly Florida are exceptions. Expert testimony is a must in nearly every medical malpractice case: proof of malpractice and causation is virtually never possible without an expert. Asking plaintiffs to upfront their expenditure on that testimony doesn’t strike me as too onerous.

The merit-affidavit requirement does not worsen the dismal situation of indigent plaintiffs. There is no reason to believe that a plaintiff who cannot hire an expert ahead of trial would somehow become able to do so when his case goes to trial. At both points in time, he will depend on charity and litigation funding. The legal system should eliminate this dependency and the consequent denial of access to justice to the poor. Things are bad enough when the haves come out ahead most of the time. Allowing a malpractitioner to go scot free when the patient he injured is too poor to file a suit will make things much worse.

March 7, 2014

The Apology Rule

Lawrence v. Mountainstar Healthcare, — P.3d —, 2014 WL 685594 (Utah App. 2014)

In this case, Utah’s Court of Appeals sharpened the distinction between two categories of doctors’ statements: (1) “we messed up” statements that acknowledge a complication or fault; and (2) statements expressing the doctor’s benevolence and apology for what happened to the patient. The Court held that fault statements are admissible as a party admission, whereas apology statements are privileged under Utah’s “apology rule”: Utah Code Ann. § 78B–3–422, Utah R. Evid. 409. The “apology rule” renders privileged care-providers’ statements that express “apology, sympathy, commiseration, condolence, or compassion; … and a general sense of benevolence”; or describe “the sequence of events relating to the unanticipated outcome of medical care.”

The Court carried out this analysis in connection with a patient’s malpractice suit against a hospital. The Court ruled that the patient was entitled to adduce the hospital’s “we messed up” statements that acknowledged its nurse’s negligence (but nevertheless dismissed the patient’s appeal).

This decision presents an interesting puzzle. Under Utah law, when a doctor approaches his patient’s spouse and says “I am sorry we messed up,” this sentence will be redacted into the privileged “I am sorry” and the unprivileged “We messed up.” This approach motivates doctors to formulate their apologies narrowly and never apologize spontaneously. But calculated apologies are not what the “apology rule” wanted to incentivize. Calculated apologies are lacking the genuine apologies’ virtue and benefit the patient and her family only when the doctor is insincere. This undesirable consequence is an example of what T.M. Scanlon calls “the teleological paradox” in his book What We Owe to Each Other (1998).

March 7, 2014

More about the “Emergency Room” Doctrine

Abdel–Samed v. Dailey, — S.E.2d —, 2014 WL 696525 (Ga. 2014)

Under Georgia statute, previously discussed here, 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.
Abdel–Samed v. Dailey, — S.E.2d —, 2014 WL 696525 (Ga. 2014), is the statute’s most recent application by the Supreme Court of Georgia.

The plaintiff arrived at a hospital’s emergency room shortly after midnight after accidentally shooting paint thinner into his finger with a high pressure paint sprayer. His finger was examined by two doctors. The doctors decided that the plaintiff must be transferred to another facility for an urgent surgery that required a hand surgeon, but waited till the morning to implement this decision. According to the plaintiff, this delay resulted in amputation of the tip of his finger and reduced range of motion, as well as increased pain and sensitivity, in his finger and hand.

Based on this evidence, the Court held that the doctors’ omission may constitute gross negligence and that the case must go to trial.