US Supreme Court: state requirement of certificate of merit in malpractice case does not apply in federal court

In one of the first reported decisions of the term, the US Supreme Court has decided that a state law requirement (to file a certificate of merit) in a medical malpractice case should not apply if the claim is filed in Federal Court.

The case is called Berk v. Choy.

You can read a summary and comment on it in SCOTUS blog.

US Supreme Court to decide whether state limits on malpractice actions apply in federal court

The SCOTUS blog reports on an upcoming case:

Berk v. Choy, to be argued on Oct. 6, surely will be the Supreme Court case of the year for medical professionals. At issue in the case is the extent to which a set of common state statutes designed to stem medical malpractice litigation apply in federal court. If they don’t apply in federal court, victims who have a way to get into federal court will have a much easier time pursuing litigation against doctors than those who cannot.

The case involves Delaware’s “affidavit of merit” statute, something that dozens of states have passed in recent years. Although the details vary, the key concept is that for a medical malpractice action to proceed, the case either has to involve medical negligence that is pretty obvious – the doctor left a foreign object in the patient’s body, the doctor operated on the wrong person, the doctor operated on the wrong organ – or the plaintiff has to file with the complaint an affidavit from a medical professional attesting to the negligence of the doctor who is being sued. Because those affidavits are somewhat hard to come by – how many doctors want to help someone sue another doctor for malpractice? – they pose a serious obstacle to the pursuit of many medical malpractice claims.

.... To continue reading the story go to the SCOTUS blog here. 

IL Appellate Court Holds that Mental Health Providers Can Be Liable for the Suicide of Outpatient Mental Health Clients

 The TortsProf Blog recently reported that the Illinois Appellate Court decided a case holding that a mental health professional can be liable for the suicide of an outpatient.  This is an interesting development because Illinois has decided in the past suicide is an unforeseeable intervening (and therefore superseding) cause as a matter of law.  I am interested in reading how the court distinguishes this case from those precedents.  The case is called O’Donnell v. Bailey & Assocs. Counseling, and you can search for it with this cite:  2023 IL App (1st) 221736.

Illinois statute eliminates ban on punitive damages in death cases

 Back in May I reported that the Illinois General Assembly was considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  In that post I explained why I thought the bill was a good idea (and why the old doctrine it sought to replace was wrong).  See here.

Today, I am here to report that just a few days ago, on August 11, Illinois Governor J.B. Pritzker signed the bill into law.  The new law allows the recovery of punitive damages in wrongful death and survival actions.  

However, as I argued in my previous post, the bill did not go gar enough because punitive damages still are not recoverable in actions against doctors, lawyers, and public entities.

Illinois considers eliminating ban on punitive damages in death cases

I have never been able to figure out the public policy reasons behind the principle of Illinois law that holds that the right to seek punitive damages for personal injuries does not survive the death of the injured party.  This means that punitive damages are not recoverable in actions brought pursuant to the Illinois Wrongful Death Act and the Survival Act.  I first wrote about this anomaly back in 2011.  See here.

I call this Illinois rule an anomaly because I don't know of any other jurisdiction that recognizes the right to seek punitive damages in some cases but not in death cases.  

I also call it wrong because the policy results in a perverse incentive to cause more harm rather than to deter wrongful conduct, which is one of the main goals of tort law.   

Thankfully, after all these years, it is possible this wrongheaded policy might be partially abandoned.  

The Illinois General Assembly is currently considering a bill that would allow plaintiffs to seek punitive damages in cases for Wrongful Death and in cases filed under the survival statute.  You can read the bill here.

Unfortunately, the bill does not go far enough because it still recognizes an exception for medical and legal malpractice cases.  This means that plaintiffs who seek to recover for the death of a decedent will not have access to punitive damages regardless of the degree of negligence or reprehensibility of the conduct of the defendant.  

This should change too.  But we are moving in the right direction, even if we are doing it one slow step at a time.  (The bill also recognizes an exception for claims against the state, but that is not unusual.  The Federal Torts Claim Act, as well as typical state versions, do not recognize a right to punitive damages in claims against the state.)

Not surprisingly, organizations dedicated to advocating for the interests of those whose conduct puts others at risk and causes injury, and their insurers, are not happy about this development.  Lacking sound policy arguments, as usual, they resort to using insults and exaggerations, calling the proposal a “calamity,” and a “shameless attack on businesses” and referring to the state a “judicial hellhole.”  See this post by the American Tort Reform Foundation, for example.  

I do agree with the ATRF that the exception for medical and legal malpractice cases does not make sense, but the solution to that disparity is not to reject the proposal altogether, thus depriving the plaintiffs of all access to recovery, but rather to eliminate the exception and thus to provide access to justice to those who deserve it.  After all, punitive damages are awarded in a very small minority of cases anyway.

UPDATE August 15, 2023:

Illinois statute eliminates ban on punitive damages in death cases

California Governor Signs Bill Raising Medical Negligence Caps

A few weeks ago, Governor Gavin Newsom signed Assembly Bill No. 35 into law, which received unanimous support for raising the California medical malpractice pain and suffering cap to reflect inflation, and provides better support for those who have been tragically hurt or killed by a medical mistake.

AboutLawsuits.com has the story here; the TortProf blog has a comment here.

New study in California concludes what we knew already: placing caps on damages in malpractice cases does not reduce malpractice

 As California seeks to pass new legislation that would increase the amount victims can recover for pain and suffering in medical malpractice lawsuits, a new study shows that setting damage caps for pain and suffering reduces the incentive to avoid malpractice, and results in an increased rate of malpractice lawsuits.  And, an increased rate of malpractice claims ultimately raises the potential cost to patients and insurers, along with noneconomic losses suffered by victims.

In other words, caps in malpractice lawsuits do not have any of the effects proponents of caps always argue they will have.  They do not result in deterrence, may result in higher costs, and do not prevent higher insurance premiums.

You can read more about the study here.

Bill to allow parents of adult children to recover in malpractice cases fails in Florida

A couple of weeks ago I wrote that the Florida House has voted to pass a bill to allow parents to pursue pain and suffering damages when their adult children die due to medical malpractice negligence.  See here.

Today I am writing to report that the attempt to pass the bill has failed.  See here. Medical interests and the Florida Chamber of Commerce had opposed the bill, arguing that current state of the law helps keep malpractice insurance premiums affordable, an old claim that has been proven to be wrong many times. 

Thanks to the TortsProf blog for the update. 

Legislators in Florida try to pass bill to recognize wrongful death cause of action for parents of adult children

For the second time in two years, the Florida House has voted to pass a bill to allow parents to pursue pain and suffering damages when their adult children die due to medical malpractice negligence. However, the bill has yet to pass through the Florida Senate, where it is facing opposition from the medical community and insurance carriers.  You can read the story here.

New article refutes arguments regarding "defensive medicine"

In a new article entitled The Paradoxes of Defensive Medicine, authors Michael Saks & Stephan Landsman review the evidence behind the belief that medical malpractice claims lead to defensive medicine and find little support for it.  This is not surprising for those who follow the literature and history of the "tort reform" movement, of course, but it is always good to see new articles on the issue.  The abstract of the article states, in part:

For decades, “defensive medicine” has been the leading argument driving reforms of medical malpractice laws throughout the United States. Defensive medicine is the presumed practice of administering excessive tests and treatments as a stratagem for reducing healthcare providers’ risk of malpractice liability, despite the absence of any expected benefit for the patient. The practice is widely believed to exist throughout American healthcare as a response to fears of malpractice litigation, and thought to be enormously wasteful of healthcare dollars. In consequence, it has become a justification for law reforms insulating the healthcare industry from tort liability. These claims are promoted by the healthcare industry even though they imply that most providers routinely engage in healthcare fraud and violate their own ethical rules. 

If you subscribe to SSRN, you can download the article here.

Should a plaintiff always need an expert witness in a malpractice case?

Because the practice of law is considered to be a profession, and a profession is defined, among other things by the fact that it requires special knowledge, education and training, courts usually require that plaintiffs in malpractice actions provide an expert witness to support their arguments as to duty and breach to the jury.  But what if there is no jury?  What if the case is going to be a bench trial?  Should a plaintiff be required to have an expert to explain to the judge what the standard of care of the profession is?  Or can we assume that the judge - obviously a lawyer himself or herself - knows the law that applies to the practice of the profession they belong to?

In a recent case in Delaware (Cannon v. Poliquin), the court decide no help from an expert is needed.  Go here for a short summary.

Article on possible negligence claims and liability for mishandling of matters related to the coronavirus

On March 9, 2020, a couple quarantined on the Grand Princess cruise ship, sued Princess Cruise Lines Ltd. after docking in Oakland, CA. This case marks the first negligence lawsuit filed in direct response to the rising coronavirus epidemic gripping the world. 

There are sure more claims to follow.  Here is a short comment that previews some of the issues.

Germany's highest court declares law banning assisted suicide is unconstitutional

Germany’s highest court on Wednesday ruled that a 2015 law banning professional assisted suicide was unconstitutional, as it robbed terminally ill patients of “the right to a self-determined death.”

Courthouse News Service has more details here.

Pennsylvania Supreme Court declares med mal statute of repose unconstitutonal

About two weeks ago, in a 4-3 ruling, the Supreme Court of Pennsylvania held that a 7-year statute of repose for medical malpractice, enacted in 2002 as part of a "tort reform" effort is unconstitutional.  The court found the statute violated the right of access to the courts and had no substantial relationship to the legislative goal of controlling malpractice insurance costs and premiums.  Courts in at least 6 other states--Alabama, Indiana, Kentucky, New Hampshire, Rhode Island, and Utah--have also held med mal statutes of repose to be unconstitutional.  The case is called Yanakos v UPMC and you can read the opinion here.

Here are a few key passages from the opinion:

...we conclude the governmental interest in controlling the rising costs of medical malpractice insurance premiums and of medical care is important. However, the MCARE Act’s statute of repose as enacted is not substantially related to achieving those goals.
. . . .
The effect of the seven-year repose period for most medical malpractice actions is to limit the “discovery rule” to seven years.  In most cases, if a malpractice victim discovers the injury and its cause within seven years, the victim may bring a timely lawsuit; however, after seven years, the statute of repose bars the victim’s action. Additionally, foreign objects cases are exempt from the statute of repose, and minors can file a lawsuit either seven years from the date of injury or until their twentieth birthday, whichever is later.  Thus, the statute of repose prevents most medical malpractice victims, except foreign objects plaintiffs and certain minors, from exercising the constitutional right to a remedy after seven years.
. . . .
In this case, there was no evidence to show the initially proposed four-year statute of repose would provide actuarial certainty, except that it “seemed like a reasonable resolution” to “provide some stability and predictability” to insurers. . . .  Moreover, there is no evidence in the legislative history as to how the General Assembly arrived at a seven-year statute of repose with exceptions for foreign objects cases and minors. The legislature did not cite any statistics on the number of medical malpractice actions that are commenced after seven years of the occurrence giving rise to the action.  There is no indication that such a time period, as opposed to a longer or shorter period, will have any effect on malpractice insurance costs.  Likewise, the parties in their current briefing failed to suggest the seven-year repose period has any substantial relationship to the legislative goal of controlling
malpractice insurance costs. 

Utah Supreme Court strikes down law requiring "certificate of merit" in medical malpractice claims

Like many other jurisdictions, at some point, Utah enacted a statute that requires plaintiffs in medical malpractice cases to file a so-called "certificate of merit" when filing a medical malpractice lawsuit.  In some jurisdictions, the certificate is simply an affidavit by an expert supporting the conclusion that the claim has merit.  In Utah, the certificate of compliance is issued once Utah’s Division of Occupational and Professional Licensing (DOPL) reviews the malpractice claim and determines it has merit. If the claim is rejected by the DOPL, plaintiffs can still receive the certificate upon attestation of their claims by an expert.

I have never been in favor of this requirement which is an artificial burden on plaintiffs created to make more difficult for them to get access to the courts, but it has become a standard in many states.

So, today's news is that, somewhat surprisingly, Utah’s Supreme Court has unanimously struck down the statute that required the certificate of merit holding that the law was unconstitutional because it violated the separation of powers doctrine by limiting the role of the judiciary.

The case is called Vega v. Jordan Valley Medical Center, and you can read it here.

Should a doctor be subject to liability to non-patients who suffer an injury because of negligence toward a patient?

Suppose a doctor misdiagnoses a contagious condition on a patient, and the patient then causes an injury to a third person.  Should the third person have a cause of action against the doctor?  This is a question that has been addressed by a number of cases, many of them involving sexually transmitted diseases.

Now, in a case called Jane Doe v Charles Cochran, available here, the Connecticut Supreme Court has held that a doctor may be liable to a third party infected with an STD after the doctor had mistakenly informed the patient he was free of infection.

Two judges dissented, here, arguing that it is wrong to extend the duty of the doctor to include non-patients.

Alaska reiterates its approach to bystander emotional distress claims, which is very different than the one used in most other jurisdictions

As you probably know, back in 1968 the California Supreme Court created what has now become the majority approach to claims by people who suffer emotional distress at witnessing injuries suffered by others.  According to that approach, the claim is limited to plaintiffs who are closely related to the victim, are present at the scene of the accident and who have a contemporaneous sensory observance of the accident.  Someone who is told about an accident after it happens or who arrives at the scene only to observe the aftermath, would not have a claim.

Alaska, however, never adopted the requirement of the contemporaneous sensory observance.  According to this approach, the plaintiff can support a claim as long as he or she is a close relative of the victim and that, under the circumstances, it is reasonably foreseeable that the plaintiff would suffer emotional distress.  This means the notion of duty in Alaska in these types of cases is broader and defendants are exposed to liability in many more cases.

I am writing about this today because I just read that the Alaska Supreme Court has again reiterated its approach to this issue in a new case called Doan v. Banner Health, Inc., (available in Westlaw at 2019 WL 2312537).

In this case, a mother, who was in a hospital waiting room when her daughter died, brought a NIED claim against medical providers for the distress she suffered upon seeing her daughter’s body. 

This claim would have been rejected in any state that follows the California approach and, obviously, in all states that reject it in favor of the "zone of danger" approach.  To my knowledge, this leaves only Alaska and Puerto Rico.

Thanks to the TortsProf blog for the update.

New update to Report on Medical Malpractice

The Center for Justice & Democracy at New York Law School recently released the 12th update to its Medical Malpractice: By The Numbers report. The fully-sourced 172-page volume includes the latest statistics and research on issues related to medical malpractice, including over 500 footnotes linking to original sources.  You can get a copy of the full report here; or a summary here.

Going to the doctor? The robot will see you now...

I have written before about issues (both ethical and legal) related to artificial intelligence, driverless cars and the like.  So I am writing today to point out an article about artificial intelligence in medicine since it is clearly not inconceivable that at some point it will be possible to create databases of information that can be used to diagnose and treat matters of health.  You can read the article "The (A.I.) Doctor Will See You Now: What if artificial intelligence could accurately diagnose you—and save you a trip to the doctor’s office?" here.

I don't know if there a lot of literature on this topic, but it certainly is an interesting one that raises lots of questions.  How should the practice be regulated?  If mistakes are made and injuries caused, should the claims be considered medical malpractice or products liability?  Should they be evaluated under a negligence standard of strict liability?

I think it is just a matter of time before we face the need to ask these questions.

New case claims injury based on negligent conduct by fertility clinic

A few years ago I wrote an article criticizing a case in which the plaintiffs claimed to have suffered an injury because, due to the conduct of the defendant, they ended up giving birth to a child of a different race.  (See here.)  I argued that it would be wrong to use someone's race as a measure of injury in a torts claim.

I still believe that to be the case, but a new case has been filed in Connecticut which raises the issue in a slightly different way.  In the case I wrote about, the plaintiffs specifically used race as an element of their injury.  In the new case, the plaintiffs are not doing that.  They are also not using the phrase "wrongful birth" to refer to the basis for their claim.

Should this make a difference? 

The notion of wrongful birth is usually used to refer to a claim that had it not been for the negligent conduct of the defendant the parents would have chosen not to have the child, and that because they did have the child, the defendant should pay for the resulting expenses (and other injuries).  Typically, courts do not recognize recovery for the emotional injury, but might recognize a claim for out of pocket expenses of various types.

In the case I wrote about a few years ago, a white woman provided the eggs and the defendant used sperm from a donor.  The mother had specifically selected the donor to be white.  Instead, the defendant used sperm from a different donor who happened to be African American.  The child born from the procedure is biologically related to the mother but of mixed races.

In the recently filed case in Connecticut, the defendant was supposed to use sperm from the plaintiff/father to fertilize an egg from a donor, so that the child would be biologically related to the father. The defendant used the wrong sperm and thus the couple gave birth to a child who is not biologically related to either one of them and also of mixed races.

Based on those facts, the complaint in the new case simply states that the defendant provided the wrong sperm to the plaintiffs and that the result of the procedure is a child who is not related to the parents at all.  This is the basis for their claimed emotional distress.  The complaint is careful not to use the term "wrongful birth" or to suggest that the race of the child is itself a basis for emotional distress. 

Should the parents in this case be granted a cause of action for the emotional distress if we don't grant one for the parents of a child in the older case?

It seems that the difference comes down to whether the race of the child is the basis of the claim.  Is it?  What do you think?

You can read more about the case in Connecticut here and here.