Update on State Medical Malpractice Wars: Part I
By Robert Bitterman, MD, JD, FACEP, Contributing Editor; President, Bitterman Health Law Consulting Group, Inc.
All action in the medical malpractice arena is happening in the states; the U.S. Congress has no stomach to tackle the issue, as evidenced by its failure to include tort reform in its behemoth 2,700-page health care reform bill. A recent spate of state court rulings addressed two major concerns of providers: 1) the constitutionality of tort reform statutes, and 2) state governments nabbing the cash in physician-funded patient malpractice compensation funds to plug ballooning budget deficits.
This month's issue of ED Legal Letter reviews the cases involving malpractice lawsuits filed by patients, and next month's issue will analyze the cases in which physicians are suing to prevent the states from seizing their assets that are held in patient compensation funds.
GeorgiaJackson v. Coffee Regional Medical Center
It only took four days after the Georgia Supreme Court struck down the state's $350,000 non-economic damages cap in medical malpractice cases for a jury to hand down a $1.5 million award of non-economic damages.1 Mr. Jackson, who was diabetic, disabled, and unable to work, presented to Coffee Regional Medical Center with pancreatitis. He was given intravenous promethazine and demerol. Allegedly, the IV site leaked, the medications infiltrated into the surrounding tissues, and ultimately resulted in amputation of his non-dominant thumb. The hospital argued that the vascular ischemia was from diabetes and/or an intravascular blood clot found at surgery, and that the IV site did not infiltrate or cause the problem.1
The jury awarded $53,000 in medical expenses in addition to the $1.5 million pain and suffering damages. No lost wages or economic damages were given, since none were requested by the already disabled plaintiff.1 If the Georgia non-economic damages cap statute had not just been overturned, Mr. Jackson's recovery would have been limited to $400,000the $50,000 in medical expenses plus the capped amount of $350,000 in non-economic damages.
The non-economic damages constraint had been enacted in 2005 as part of a broad legislative package known as the Georgia Tort Reform Act,2 which was intended to improve access to care and stem escalating malpractice premiums or the unavailability of malpractice insurance.3 However, in the case of Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, the Georgia Supreme Court unanimously determined that the statutory cap violated the patient's right to trial by jury protected under the state Constitution.4
Fortunately, though, for emergency physicians, hospital emergency departments (EDs), and our emergency on-call brethren, a few days after its ruling on the cap, the same Court upheld a different section of the Georgia Tort Reform Act that beneficially changed the standards of liability for providers of emergency care.5,6 In Georgia, to now successfully ply a medical malpractice case related to ED care the plaintiff must prove the physician or hospital committed gross negligence by clear and convincing evidencequite a difficult standard to meet.7
MissouriKlotz v. St. Anthony's Medical Center
The Missouri high court took a different approach than the Georgia court; it let stand the state's $350,000 cap on non-economic damages in medical malpractice cases but narrowed the scope of application of the law.9 Missouri had also passed major tort reform law in 2005. The most high-profile elements were a reduction in the state's damages cap from $579,000 down to $350,000, and the requirement that the amended cap be applied "to all causes of action filed after August 28, 2005."10
In Klotz, the jury found the hospital and physicians negligent in treating the plaintiff's sepsis during a 2004 hospitalization and awarded Mr. Klotz damages of $2.067 million, which included $760,000 in non-economic damages. The jury also awarded Mrs. Klotz $329,000 in non-economic damages for loss of consortium.9
The lawsuit was filed in 2006, so the trial judge reduced Mr. Klotz's non-economic damages to the maximum amount allowed by the 2005 cap law, and eliminated them for his wife because under the 2005 law her damages were counted in her husband's total.9,10
The Klotzs appealed, contending that since the malpractice occurred in 2004, the tort reform law enacted in 2005 should not apply. Ultimately, the Missouri Supreme Court agreed, ruling that the Missouri Constitution prohibited retroactive laws.9 It held that the Klotzs' causes of action accrued at the time of the injury, so that the new cap limit did not apply to them or anyone else injured before the law's enactment date of August 28, 2005.9
Interestingly, just a few days earlier, a Florida appeals court had held that Florida's non-economic damages cap did apply retroactively, even though the plaintiff's injury occurred before the effective date of the statutory limit.11 It remains to be seen how the Florida Supreme Court will rule on the issue.
TexasMethodist Healthcare System of San Antonio v. Rankin
Texas' turnaround from a judicial hell-hole to the poster child for tort reform continues.12 The 2003 Tort Reform and constitutional amendment not only placed a cap on non-economic damages and reformed joint-and-several liability; it also included a two-year statue of limitations and a ten-year statute of repose.13 In other words, when it comes to suing a physician in Texas for medical negligence, timing is everything.
In Methodist, the Texas Supreme Court scrutinized the constitutionality of the 10-year limit to file suitthe state's 10-year "statute of repose."14,15
In mid-2006, Ms. Rankin underwent an exploratory laparotomy after years of abdominal pain and chronic infections. Her surgeon discovered a sponge left behind from a 1995 hysterectomy, slightly more than 10 years earlier.
Rankin filed suit in late 2006, almost 11 years after the alleged negligence. The trial court dismissed the case because Rankin missed the 10-year time limit; however, the appellate court reinstated her lawsuit, holding that the 10-year statute of repose violated the state's constitutional guarantee of access to the courts.16 Rankin had submitted evidence that she did not know of the sponge and could not have reasonably discovered it before the 10-year period expired.14
The Texas Supreme Court overruled the appellate court, holding that Rankin's claim was indeed time-barred by the 10-year statute of repose for health care liability claims.14
The court first explained the difference between a statute of limitations and a statute of repose. A statue of limitations sets a deadline for filing a lawsuit after an injury occurs. The deadline, however, can be extended under certain circumstances, such as fraud or delayed discovery of the injury. This "discovery rule" prevents the statue of limitations from starting until the injury is known, or reasonably should have been known by the plaintiffa legal canon called "tolling."14
A statute of repose sets a strict date after which a cause of action disappears entirely. It absolutely eliminates a plaintiff's right to sue, and cannot be extended by the discovery rule or for any other reason. There is no tolling of a statue of repose.14
Thus, Rankin's evidence that she didn't know of the sponge or couldn't discover it within the 10-year time frame was irrelevant for purposes of imposing the statute of repose, even though it would have extended the statue of limitations if, say, she had learned of the sponge at year 8. The very purpose of a statute of repose is to eliminate uncertainties under the related statute of limitations and create an incontrovertible deadline for filing suit that is devoid of any exceptions.14
The court noted that many states have repose statutes for medical negligence cases, and Texas' 10-year period is the longest of them all. Some state repose laws are expressly inapplicable to foreign object claims, but the Texas legislature chose not to exempt such cases from its statute.14
The justices ruled that the constitutionally guaranteed access to the courts "does not confer an open-ended and perpetual right to sue; it merely gives litigants a reasonable time to discover their injuries and file suit."17 It held that it was entirely within the power/public policy of the legislature to establish an absolute cut-off point for malpractice claims, as it had done for other law suits in Texas, striking "a fair balance between the legislative purpose of protecting against stale claims and the rights of litigants to obtain redress for injuries."14,18 Even with the most generous repose period in the country, a few plaintiffs, such as Rankin, will be unable to bring claims through no fault of their own; but likewise, some defendants would be harmed if their potential liability was left open-ended. Evidence grows stale, memories fade, eyewitnesses become unavailable (or die), records get misplaced, or whole institutions no longer exist. Additionally, the court recognized that "the length of time that insureds are exposed to potential liability has a bearing on the rates that insurers must charge."14
Thus, once again the Texas Supreme Court upheld another important element of the Texas tort reform laws.14
Washington – Putman v. Wenatchee Valley Medical Center
A number of states require plaintiff attorneys to obtain a written affidavit, or "certificate of merit," from a medical expert opining that there is a reasonable probability the standard of care was violated before they can initiate a medical malpractice suit. Typically, the certificate must be executed by a health care provider who meets the qualifications of an expert in the case.19 Failure to file a proper certificate is grounds for dismissal of the case.
The Washington Supreme Court, in the Putman case, recently struck down its state certificate of merit requirement for medical malpractice cases. The certificate law had been passed as part of Washington's tort reform package in 2006, after voters defeated two competing (and contentious) initiatives the year before, which had been pushed alternatively by physicians and the trial attorneys.20
However, the court unanimously determined the certificate requirement violated the state's constitutional right of access to the courts, noting that it "essentially requires plaintiffs to submit evidence supporting their claims before they even have an opportunity to conduct discovery and obtain such evidence."20 The Washington court felt that interviews of the involved health care providers or a review of the hospital or physician's policy and procedure manuals may be necessary before an expert could sufficiently opine on the standard of care.20
Unlike Washington, many other state courts have upheld "certificate of merit" statutes, and will summarily dismiss the lawsuit if the plaintiff's attorney fails to file a proper certificate with the court. For example, recently the Minnesota court of appeals ruled that its medical expert review certificate law was constitutional. In Kolosky v. Woodwinds Hospital, the plaintiff alleged negligence-induced injuries after an orthopedic procedure, but did not attach an expert's affidavit as required by the statute.21,22 Kolosky argued that expert testimony was not required because the alleged negligent acts and omissions in the complaint were within the knowledge of a layperson. The court disagreed, noting that Kolosky would need expert testimony to establish the standard of care for performing the procedure and the post-op care, as well as whether any deviation from that standard caused his injury. It held that the standard of care for the procedure and the post-op care was not within the common knowledge of laypersons.21
Summary
Tort reform efforts remain contentious and continue to be highly litigated. As noted, the results have been mixed in recent years, with the Illinois and Georgia Supreme Courts rejecting legislatively enacted non-economic damages caps, but the Supreme Courts of Texas and Missouri upholding the caps. With no federal intervention in sight, the malpractice tort reform wars will continue in the states.
(Next month, Part II: Physicians sue states to prevent raids on state malpractice fund assets.)
References
- Jackson v. Coffee Regional Med. Ctr., Coffee County No. 2207S04-387, March 26, 2010.
- Georgia Tort Reform Act of 2005, Ga. Code Ann. §51-13-1.
- Ga. L. 2005, p. 1, §1.
- Atlanta Oculoplastic Surgery, P.C. v. Nestlehutt, No. S09A1432 (Ga. Mar. 22, 2010).
- Gliemmo v. Cousineau, No. S09A1807 (Ga. Mar. 15, 2010).
- Ga. Code Ann. §51-1-29.5.
- Ga. Code Ann. §51-1-29.
- Bitterman RA. Tort Reform takes big hits, but keeps on ticking. ED Legal Letter 2010;21:49-54.
- Klotz v. St. Anthony's Med. Ctr., No. SC 90107 (Mo. Mar. 23, 2010).
- Mo. Rev. Stat. §538.210.
- Weingrad v. Miles, No. 3D08-1592 (Fla. Dist. Ct. App. Mar. 3, 2010).
- For a general discussion of the impact of the Texas tort reforms see: A Texas Turnaround–The Impact of Lawsuit Reform on Economic Activity in the Lone Star State. The Perryman Group, Apr. 2008, at 27, at http://www.tlrfoundation.com/perryman-group-report; Nixon JM. A History of Lawsuit Reform in Texas. May 2008. Published by the Texas Public Policy Foundation, Center for Economic Freedom, available at http://www.texaspolicy.com/pdf/2008-05-RR04-tortreform-jnixon-posting.pdf.; and Bitterman RA, Fish MB. Health care reform: Should it grant physicians immunity for EMTALA mandated services? ED Legal Letter 2009;20:109-113.
- Tex. Civ. Prac. & Rem. Code §74.301.
- Methodist Healthcare System of San Antonio v. Rankin, No. 08-0316, Texas Supreme Court, March 12, 2010.
- Tex. Civ. Prac. & Rem. Code §74.251(b) provides "a claimant must bring a health care liability claim not later than 10 years after the date of the act or omission that gives rise to the claim. This subsection is intended as a statute of repose so that all claims must be brought within 10 years or they are time barred."
- Tex. Const. Art. I, §13.
- Methodist Healthcare Sys. of San Antonio v. Rankin, No. 08-0316, Texas Supreme Court, March 12, 2010; quoting Yancy v. United Surgical Partners Int'l, Inc., 236 S.W.3d 778, 784 (Tex. 2007).
- See Tex. Civ. Prac. & Rem. Code §16.0084.
- E.g., Wash. Rev. Code. 7.70.150.
- Putman v. Wenatchee Valley Med. Ctr., No. 80888-1 (Wash. Sept. 17, 2009).
- Kolosky v. Woodwinds Hosp., No. A09-667 (Minn. Ct. App. Dec. 1, 2009).
- Minn. Stat. §145.682.
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