Verdicts

Wisconsin Wrongful Death/Med-Mal Damage Cap Issue Clarified

The Wisconsin Supreme Court on July 7 overturned its decision in Maurin v. Hall, 2004 WI 100 (2004), which had held that when a victim of medical malpractice dies, the damage cap imposed on wrongful death actions limits all noneconomic damages. Bartholomew v. Wisconsin Patients Compensation Fund and Compcare Health Services Insurance Corp.,2006 WL 1867198 (Wis. 6/7/06).

Helen Bartholomew died as a result of medical malpractice. Her husband, Robert Bartholomew, brought suit against her doctor, insurers and others. A jury found for the plaintiff and awarded him $1.2 million in noneconomic damages ($500,000 for his wife's pre-death pain and suffering, $350,000 for pre-death loss of his wife's society and companionship, and $350,000 for post-death loss of his wife's society and companionship), but the trial court limited his award to the maximum allowed by the State's medical malpractice noneconomic damages cap under Wis. Stat. ' 893.55(4)(d) ' at that time $422,632. Days thereafter, the Wisconsin Supreme Court issued its decision in Maurin, and upon motion of the defendants, the circuit court revised its judgment to comply with Maurin and reduced the three jury awards for noneconomic damages collectively to $350,000, the wrongful death cap. Bartholomew appealed and the Court of Appeals summarily affirmed, prompting his petition for review.

The issue in the case was whether the various types of damage awards collectively were limited to the maximum allowed under the cap on wrongful death actions. As a result of the revised judgment, Robert Bartholomew argued that in effect he received his entire award for noneconomic damages for his claim for his post-death loss of his wife's society and companionship ($350,000), but he received nothing for the pre-death claim for loss of his wife's society and companionship and the estate received nothing for 5 years of Helen Bartholomew's pre-death pain and suffering. Upon review, the Wisconsin Supreme Court agreed with the plaintiff, stating, 'A majority of the court ' concludes that Maurin was wrongly decided and must be overturned.' The court found that the awards of noneconomic damages for pre-death claims were governed by the medical malpractice (not wrongful death) cap established in ' 893.55(4)(d) ' $422,632 ' but that because the medical malpractice cap was declared unconstitutional in Ferdon v. Wisconsin Patients Compensation Fund, 2005 WI 125, the plaintiff was entitled to collect the full amounts of the pre-death medical malpractice damages awarded. This decision, however, left undisturbed that part of Maurin that holds the wrongful death cap applicable to a claimant's noneconomic damages for post-death loss of society and companionship in a medical malpractice action.

State Does Not Waive Immunity in Texas Med-Mal Case

Plaintiff's suit did not invoke the limited waiver of sovereign immunity found in Texas' Tort Claims Act (Tex. Civ. Prac. & Rem. Code Ann. ' 101.012(2)) because that statute's waiver does not apply unless tangible state property causes the plaintiff's injury. University of Texas Medical Branch v. Thompson, 2006 WL 1675401, (Tex.App.-Hous. (14 Dist.) 6/20/06).

Plaintiff suffered appendicitis symptoms but was misdiagnosed at defendant's hospital on more than one occasion. It was not until her third visit that she was correctly diagnosed and operated on. Plaintiff brought suit alleging state-employed physicians and nurses harmed her by: 1) improperly administering injectable pharmaceuticals, thereby masking the symptoms of appendicitis; 2) improperly permitting her discharge from the hospital; and 3) failing to properly evaluate and treat her. The State challenged the court's jurisdiction, asserting plaintiff's claims did not invoke the Tort Claims Act's limited waiver of sovereign immunity. Plaintiff countered that defendant's agents injured her by improperly using x-ray equipment when appendicitis could not properly be diagnosed with x-ray; and misusing diagnostic equipment such as a stethoscope, blood pressure machines, and thermometers in a way that failed to recognize the signs and symptoms of her illness. She asserted that the tangible personal property used by the physicians that invoked the Tort Claims Act's limited waiver of immunity were pain medications, the x-ray machine, and various diagnostic equipment including a stethoscope, blood pressure machine, and a thermometer.

The court found these allegations did not meet the Tort Claims Act's causation requirement because none of the property involved in plaintiff's medical treatment actually harmed her. The real substance of her suit was that emergency room medical staff failed to timely detect and treat her appendicitis and these failures resulted in pain and injury that would not have occurred if she had been timely and properly diagnosed and treated. Any State property involved in the diagnosis was peripheral and could not serve as a basis for waiver of sovereign immunity.

Doctor Not to Blame for Paralysis-Inducing Stroke

A woman who suffered a stroke while on an amphetamine for Attention Deficit Hyperactivity Disorder (ADHD) and is now a paraplegic was unable to convince a Harris County, TX, jury that her psychiatrist's failure to properly manage the medication was to blame. Taylor v. Steffek, No. 2001-01129 (190th Dist. Court, Harris Cty.).

Beverly Lois Taylor was being treated for ADHA by Dr. John C. Steffek, who prescribed Adderall'. Taylor claimed that Steffek failed to consistently take her blood pressure and that had he done so, the stroke would have been avoided. The defense argued that Taylor was appropriately monitored and that the stroke wasn't caused by the Adderall, but was the result of a congenital artery defect in Taylor's brain. The defense verdict was rendered on May 25.

Lack of Physician Names on Form Not Fatal

Because parents of a child born with brain damage were informed that their doctor participated in a no-fault birth injury compensation system, they were limited to the compensation available through Florida's Birth-Related Neurological Injury Compensation Act (NICA) (Section's 766.301-766.316 of the Florida Statutes (2004)). Jackson v. Florida Birth-Related Neurological, 2006 WL 1649027 (Fla.App. 5 Dist., 6/16/06).

The parents of infant Jacqueline Jackson, who suffered brain damage at birth, filed a petition with the Division of Administrative Hearings against the Florida Birth-Related Neurological Injury Compensation Association (the Association) seeking a determination of their entitlement to receive NICA benefits. NICA provides an exclusive remedy in the form of compensation for certain statutorily defined birth-related neurological injuries on a no-fault basis. Although plaintiffs knew their daughter was entitled to compensation under NICA, they asserted the attending physicians and the medical group that employed them, Physician Associates of Florida Inc. (PAF), were not entitled to NICA immunity because they had failed to give Jacqueline's mother the statutorily required pre-delivery notice of their participation in the NICA plan. (The purpose of the pre-delivery notice requirement is to enable the patient to make an informed choice between going to an obstetrician who participates in the NICA plan and going to one who does not.)

At the hearing, Nurse Liz Posey, an employee of PAF, testified that she routinely informs prenatal patients about the NICA plan by giving them a packet that includes a pamphlet titled “Peace of Mind for an Unexpected Problem.” This pamphlet, distributed by NICA to physicians for the purpose of patient education, outlines the nature of NICA coverage and limitations. Nurse Posey testified that she routinely verbally advises all prenatal patients that all the physicians in PAF participate in the NICA plan. However, on the form Jackson received and signed, acknowledging receipt of the pamphlet, the place on which PAF's NICA-participating physicians should have been named was left blank. Although the Administrative Law Judge (ALJ) found that this omission rendered the signed form inadequate notice on its own, he credited Nurse Posey's testimony that she routinely gave oral notice of the PAF physicians' participation in the program and ruled that Mrs. Jackson had received adequate notice of her physician's participation in NICA at her initial office visit.

The appellate court affirmed, agreeing that proper oral communication had been made but also finding that the written acknowledgement Mrs. Jackson signed was not inadequate for lack of the names of the practice's physicians.

Wisconsin Wrongful Death/Med-Mal Damage Cap Issue Clarified

The Wisconsin Supreme Court on July 7 overturned its decision in Maurin v. Hall , 2004 WI 100 (2004), which had held that when a victim of medical malpractice dies, the damage cap imposed on wrongful death actions limits all noneconomic damages. Bartholomew v. Wisconsin Patients Compensation Fund and Compcare Health Services Insurance Corp.,2006 WL 1867198 (Wis. 6/7/06).

Helen Bartholomew died as a result of medical malpractice. Her husband, Robert Bartholomew, brought suit against her doctor, insurers and others. A jury found for the plaintiff and awarded him $1.2 million in noneconomic damages ($500,000 for his wife's pre-death pain and suffering, $350,000 for pre-death loss of his wife's society and companionship, and $350,000 for post-death loss of his wife's society and companionship), but the trial court limited his award to the maximum allowed by the State's medical malpractice noneconomic damages cap under Wis. Stat. ' 893.55(4)(d) ' at that time $422,632. Days thereafter, the Wisconsin Supreme Court issued its decision in Maurin, and upon motion of the defendants, the circuit court revised its judgment to comply with Maurin and reduced the three jury awards for noneconomic damages collectively to $350,000, the wrongful death cap. Bartholomew appealed and the Court of Appeals summarily affirmed, prompting his petition for review.

The issue in the case was whether the various types of damage awards collectively were limited to the maximum allowed under the cap on wrongful death actions. As a result of the revised judgment, Robert Bartholomew argued that in effect he received his entire award for noneconomic damages for his claim for his post-death loss of his wife's society and companionship ($350,000), but he received nothing for the pre-death claim for loss of his wife's society and companionship and the estate received nothing for 5 years of Helen Bartholomew's pre-death pain and suffering. Upon review, the Wisconsin Supreme Court agreed with the plaintiff, stating, 'A majority of the court ' concludes that Maurin was wrongly decided and must be overturned.' The court found that the awards of noneconomic damages for pre-death claims were governed by the medical malpractice (not wrongful death) cap established in ' 893.55(4)(d) ' $422,632 ' but that because the medical malpractice cap was declared unconstitutional in Ferdon v. Wisconsin Patients Compensation Fund , 2005 WI 125, the plaintiff was entitled to collect the full amounts of the pre-death medical malpractice damages awarded. This decision, however, left undisturbed that part of Maurin that holds the wrongful death cap applicable to a claimant's noneconomic damages for post-death loss of society and companionship in a medical malpractice action.

State Does Not Waive Immunity in Texas Med-Mal Case

Plaintiff's suit did not invoke the limited waiver of sovereign immunity found in Texas' Tort Claims Act (Tex. Civ. Prac. & Rem. Code Ann. ' 101.012(2)) because that statute's waiver does not apply unless tangible state property causes the plaintiff's injury. University of Texas Medical Branch v. Thompson, 2006 WL 1675401, (Tex.App.-Hous. (14 Dist.) 6/20/06).

Plaintiff suffered appendicitis symptoms but was misdiagnosed at defendant's hospital on more than one occasion. It was not until her third visit that she was correctly diagnosed and operated on. Plaintiff brought suit alleging state-employed physicians and nurses harmed her by: 1) improperly administering injectable pharmaceuticals, thereby masking the symptoms of appendicitis; 2) improperly permitting her discharge from the hospital; and 3) failing to properly evaluate and treat her. The State challenged the court's jurisdiction, asserting plaintiff's claims did not invoke the Tort Claims Act's limited waiver of sovereign immunity. Plaintiff countered that defendant's agents injured her by improperly using x-ray equipment when appendicitis could not properly be diagnosed with x-ray; and misusing diagnostic equipment such as a stethoscope, blood pressure machines, and thermometers in a way that failed to recognize the signs and symptoms of her illness. She asserted that the tangible personal property used by the physicians that invoked the Tort Claims Act's limited waiver of immunity were pain medications, the x-ray machine, and various diagnostic equipment including a stethoscope, blood pressure machine, and a thermometer.

The court found these allegations did not meet the Tort Claims Act's causation requirement because none of the property involved in plaintiff's medical treatment actually harmed her. The real substance of her suit was that emergency room medical staff failed to timely detect and treat her appendicitis and these failures resulted in pain and injury that would not have occurred if she had been timely and properly diagnosed and treated. Any State property involved in the diagnosis was peripheral and could not serve as a basis for waiver of sovereign immunity.

Doctor Not to Blame for Paralysis-Inducing Stroke

A woman who suffered a stroke while on an amphetamine for Attention Deficit Hyperactivity Disorder (ADHD) and is now a paraplegic was unable to convince a Harris County, TX, jury that her psychiatrist's failure to properly manage the medication was to blame. Taylor v. Steffek, No. 2001-01129 (190th Dist. Court, Harris Cty.).

Beverly Lois Taylor was being treated for ADHA by Dr. John C. Steffek, who prescribed Adderall'. Taylor claimed that Steffek failed to consistently take her blood pressure and that had he done so, the stroke would have been avoided. The defense argued that Taylor was appropriately monitored and that the stroke wasn't caused by the Adderall, but was the result of a congenital artery defect in Taylor's brain. The defense verdict was rendered on May 25.

Lack of Physician Names on Form Not Fatal

Because parents of a child born with brain damage were informed that their doctor participated in a no-fault birth injury compensation system, they were limited to the compensation available through Florida's Birth-Related Neurological Injury Compensation Act (NICA) (Section's 766.301-766.316 of the Florida Statutes (2004)). Jackson v. Florida Birth-Related Neurological, 2006 WL 1649027 (Fla.App. 5 Dist., 6/16/06).

The parents of infant Jacqueline Jackson, who suffered brain damage at birth, filed a petition with the Division of Administrative Hearings against the Florida Birth-Related Neurological Injury Compensation Association (the Association) seeking a determination of their entitlement to receive NICA benefits. NICA provides an exclusive remedy in the form of compensation for certain statutorily defined birth-related neurological injuries on a no-fault basis. Although plaintiffs knew their daughter was entitled to compensation under NICA, they asserted the attending physicians and the medical group that employed them, Physician Associates of Florida Inc. (PAF), were not entitled to NICA immunity because they had failed to give Jacqueline's mother the statutorily required pre-delivery notice of their participation in the NICA plan. (The purpose of the pre-delivery notice requirement is to enable the patient to make an informed choice between going to an obstetrician who participates in the NICA plan and going to one who does not.)

At the hearing, Nurse Liz Posey, an employee of PAF, testified that she routinely informs prenatal patients about the NICA plan by giving them a packet that includes a pamphlet titled “Peace of Mind for an Unexpected Problem.” This pamphlet, distributed by NICA to physicians for the purpose of patient education, outlines the nature of NICA coverage and limitations. Nurse Posey testified that she routinely verbally advises all prenatal patients that all the physicians in PAF participate in the NICA plan. However, on the form Jackson received and signed, acknowledging receipt of the pamphlet, the place on which PAF's NICA-participating physicians should have been named was left blank. Although the Administrative Law Judge (ALJ) found that this omission rendered the signed form inadequate notice on its own, he credited Nurse Posey's testimony that she routinely gave oral notice of the PAF physicians' participation in the program and ruled that Mrs. Jackson had received adequate notice of her physician's participation in NICA at her initial office visit.

The appellate court affirmed, agreeing that proper oral communication had been made but also finding that the written acknowledgement Mrs. Jackson signed was not inadequate for lack of the names of the practice's physicians.