By Damian D. Capozzola, Esq.
The Law Offices of Damian D. Capozzola
Los Angeles
Jamie Terrence, RN
President and Founder, Healthcare Risk Services
Former Director of Risk Management Services (2004-2013)
California Hospital Medical Center
Los Angeles
David Vassalli, 2016 JD Candidate
Pepperdine University School of Law
Malibu, CA
News: In 2010, a woman had a section of her colon removed and believed there was a cancerous mass on the removed section. The remainder of her colon was stitched together by a surgeon at a medical center. The woman became increasingly ill over the next couple of months and received follow-up care from a physician at the same healthcare facility where the surgeon performed the original procedure. The woman underwent multiple surgeries and tests in an effort to find the source of the infection, with no success. Four months after the initial surgery, a colonoscopy revealed her colon was leaking where it had been stitched together. This leaking was causing damage to the liver, internal bleeding, and pain for the woman. She sued the healthcare facility for the conduct of its staff, particularly the botched surgery by the surgeon and the poor follow-up care by the other physician. The jury found both physicians acted negligently and awarded the woman $7.5 million in damages against the healthcare facility, which was responsible for the actions of the physicians. The damages consisted of $4 million in non-economic damages for pain and suffering, disfigurement, and permanent injury; $3.24 million for medical expenses and loss of income; and $300,000 for her husband’s loss of consortium claim. However, state law caps non-economic damages at $500,000 unless the physician was grossly negligent or reckless. The jury considered the steps taken by the physicians, including the warning of the risks involved with the procedure, and decided the physicians were not grossly negligent or reckless. As such, the healthcare facility’s liability was reduced from $7.5 million to $4 million.
Background: In June 2010, a woman with concerns of colon cancer had a portion of her colon removed and the remainder stitched together by a surgeon. The woman then received follow-up care with a different physician in the same facility where she underwent the initial procedure. In the following four months, the woman became increasingly ill, suffered kidney failure, and had three surgeries to find the source of the problem. In October 2010, four months after the initial surgery, a colonoscopy revealed a tear and leakage where the colon had been reattached. A corrective surgery was successfully performed by a different hospital, but the woman claims she still suffers pain and will require more treatment. The woman sued the original healthcare facility for the negligence of the surgeon who performed the surgery and the physician who provided her postoperative care. The healthcare facility maintained that the surgery was performed correctly, the postoperative care was appropriate, and the woman was informed of the risks and benefits of the procedure.
The jury found the surgeon and other physician negligent and found the healthcare facility liable for the $7.5 million in damages to the woman. The jury awarded the woman $4 million in non-economic damages, particularly for pain and suffering, disfigurement, and permanent injury; $3.24 million for medical expenses and loss of income; and $300,000 for her husband’s loss of consortium claim.
However, North Carolina, the state where this case was heard, has a medical malpractice cap on non-economic damages, such as pain and suffering, disfigurement, and permanent injury. The cap restricts the amount a patient can receive to $500,000, unless the physician was grossly negligent or reckless.
The jury was not made aware that the amount of compensation the woman ultimately receives is dependent on the manner in which they concluded the physicians acted. The jury considered the evidence and decided the physicians were negligent but not grossly negligent or reckless. As such, the non-economic damages portion of the jury award was reduced from $4 million to $500,000, which lowered the healthcare facility’s total liability from $7.5 million to $4 million.
What this means to you: This case illustrates the ability of medical malpractice liability caps to shelter physicians and facilities from certain types of liability. Just more than half of the states in the United States have some form of medical malpractice cap that limits the amount of non-economic damages a plaintiff can receive. A handful of states have “umbrella” caps, which limit the total amount of any type of damages the plaintiff can receive. The caps placed on damages vary from a $250,000 cap on non-economic damages in California, to a $750,000 cap on non-economic damages in Wisconsin, and an overall cap of $2 million on all damages in Virginia.
Work closely with qualified counsel in your state concerning these issues, because the issue of medical malpractice caps is evolving constantly. For example, in 2014, California voters voted down Proposition 46, which would have raised the cap on non-economic damages from $250,000 to $1.1 million. While the Proposition was voted down by a more than two-thirds vote, the $250,000 limit on non-economic damages still is being fought in the court system. The Supreme Court of California has twice refused to hear appeals on the cap this year, which signifies that the $250,000 cap will remain in place. Whether a physician or healthcare facility is sheltered by a medical malpractice cap on certain types of damages, and to what extent, varies greatly from state to state, and those in the medical practice should be aware of the current medical malpractice caps and how they work in their respective states.
With respect to how the state’s medical malpractice cap on damages operates, this case illustrates how the conduct of the physician can greatly affect the overall outcome as to the amount of the damages that were awarded against the healthcare facility and must be paid.
In North Carolina, the patient is limited to $500,000 in non-economic damages, but this cap is removed if the jury finds the conduct leading to liability was grossly negligent or reckless. It is explained to the jury that negligence is a departure from what a reasonable physician who was similarly situated would have done, and that recklessness and gross negligence occurs when a physician has acted with an utter lack of concern for the patient’s safety or acted in disregard of a known risk to the patient. However, the jury was not informed about the cap on damages or that its application is reliant on their determination of the manner in which the physician acted, which is typical.
In this case, the jury analyzed the conduct of the healthcare facility’s staff and determined they were only negligent, which reduced the facility’s liability by $3.5 million. Bearing this difference in mind, prudent physicians will take steps that ensure they can show they were aware of risks, took steps to mitigate known risks, and made an effort to act with the patient’s safety in mind. These steps are particularly relevant when treating patients who are having difficulties and also applies to conduct after the treatment is administered. A jury hearing that the physician was cordial, worked hard to assist the patient, and continues to treat the patient, which is what occurred in this case, is more likely to find that a physician was only negligent and not reckless or grossly negligent. As such, a physician treating a patient, and even a physician being concurrently sued by a patient, should remain acting in the patient’s best interest and document acts which demonstrate that conduct.
It also is prudent to carefully document the physician’s effort to obtain informed consent from the patient. This includes keeping a record of not only what was discussed with the patient, including risks, benefits, alternative treatments, recovery time, etc., but also acknowledgement that the patient understands and accepts the risks and benefits. This goal can be achieved by asking the patient to repeat back information discussed and by having a family member present during the discussion to reinforce details with the patient later. This step not only assures the physician that the patient is making an informed choice, but it also displays to the jury that the physician is truly concerned about the welfare of the patient.
REFERENCE
Cumberland County Superior Court, North Carolina, Case Number 13-CVS-3475 (Sept. 30, 2015).
In 2010, a woman had a section of her colon removed and believed there was a cancerous mass on the removed section. The remainder of her colon was stitched together by a surgeon at a medical center. The woman became increasingly ill over the next couple of months and received follow-up care from a physician at the same healthcare facility where the surgeon performed the original procedure.
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