MEDICAL MALPRACTICE CASE LAW UPDATE
SPRING 2010
Statutory Cap on Damages in Malpractice Action Applies before Jury Award is Reduced to Reflect Settlement Credit
Maryland statute provides for a limitation on non-economic damages for all claims arising from the same medical injury, regardless of the number of claims (e.g. wrongful death and survival action would have one aggregate cap). The Maryland Court of Appeals has held that when one joint tortfeasor settles out of a medical malpractice action prior to the jury reaching its verdict, the settlement amount is to be applied pro-rata to the non-economic damages cap after the applicable cap is applied. Here, the jury award of $3 million in non-economic damages was reduced to the $812,500 cap, then the settled party set-off was applied on a pro-rata basis.
See Lockskin v. Semsker, 412 Md. 257 (Ct. App. Md. 2010).
Where Patient diagnosis was delayed but successfully treated, Patient may still recover for damages for increased risk of recurrence
An Ohio appeals court reversed summary judgment for a Radiologist who allegedly misdiagnosed the plaintiff’s breast cancer. The alleged negligence resulted in a 13-month delay in treatment, which allowed the patient plaintiff’s cancer to grow and metastasize; but, the patient ultimately underwent successful treatment. Plaintiff’s expert oncologist opined that the delayed diagnosis allowed for an increased risk of a fatal recurrence in the future. The appeals court reinstated plaintiff’s claims for medical malpractice and negligent infliction of emotional distress, holding that fear of a recurrence and the growth and metastasis of cancer both constitute compensable injuries, even when that cancer is ultimately treated successfully.
See Loudin v. Radiology & Imaging Services, Inc. 2009 Ohio 6947 (Ct. App. Oh. 2009).
Patient alleging “Unnecessary Surgery” against Surgeon may present evidence of Financial Incentive
A patient plaintiff was successful in bringing suit against his surgeon in a medical malpractice action, without alleging any deviation from the standard of care relating to the surgery. Plaintiff alleged it was improper for a single physician to perform the diagnostic exam and subsequent corrective surgery, and the physician breached the standard of care simply by performing unnecessary surgery. Evidence regarding the surgeon’s financial incentive was admitted at trial, and the appellate court upheld the admission. The appellate court’s dissent held that the Plaintiff’s demand for separate physicians to diagnose and perform the corrective procedure merely reflected the Plaintiff’s personal preference rather than any standard of care.
See Martinez v. Elias, 922 N.E. 2d 457 (Ct. App. Ill. 2009).
Health Insurer may be Sued for Retaining Health Care Provider that Failed to Implement Quality Assurance Program
Nevada state law requires implementation of quality assurance programs to detect and remedy unsafe practices in medical clinics. Plaintiff contracted Hepatitis C when he received treatment at a clinic pursuant to his employer’s health insurance plan, which alleged engaged in unsafe practices in violation of the state law. Plaintiff alleged his health plan had acted negligently in retaining and supervising the clinic and failing to properly evaluate and monitor the clinic’s compliance with the state law. The US District Court determined ERISA did not preempt the claim, and the Plaintiff’s health insurance plan could be held directly liable for negligence in retaining and supervising the clinic.
See Insco v. Aetna Health & Life Insurance Company (D. Nev. 2009).
Surgeon may be Sued under Informed Consent Theory for Failing to Advise Patient Regarding “off-label” use of Medical Product
Defendant spinal surgeon used bone marrow morphogenetic protein (“BMP”), a product that enhances bone growth, in a manner not approved by the FDA, without warning patient of the off-label use. Plaintiff patient sued the surgeon under an informed consent theory, arguing the use of BMP caused her to develop complications. The US District Court denied Surgeon’s motion for summary judgment, holding that South Dakota law permitted the patient to proceed with an informed consent claim based on the surgeon’s failure to advise her that BMP had not been approved by the FDA for use during spinal surgery.
See Deneui v. Wellman, 2009 US Dist. Lexis 114853 (D.S.D. 2009).
Settlement of Vicarious Liability Claim against Physician’s Employer does not bar Claim Against Individual Physician
Plaintiff patient brought suit against an internist and radiologist and their respective corporate employers. Plaintiff reached a settlement with the radiologist and the corporate bodies, but executed an agreement with the three defendants which expressly reserved the right to pursue the claim against the internist. The internist moved for summary judgment, arguing the release of a vicarious liability claim against the employer barred plaintiff from pursuing a claim against him individually. The Supreme Court of Pennsylvania held that a claimant may decide to settle a claim for reasons unrelated to the merits of the case; public policy and effectuation of the intent of the parties mandated a rule that would allow a claimant to settle a vicarious liability claim without giving up the right to pursue a claim against the doctor whose acts gave rise to that claim.
See Maloney v. Valley Medical Facilities, 984 A.2d 478 (Pa. 2009).
If you have questions, comments or would like a copy of these recent cases, please contact Jay at the above number or you can e-mail him at jdavis@ycrlaw.com.
