Verdicts

Loss of Consortium Damages Are for Married Plaintiffs Only

Facing no opposition from the plaintiffs, a New York trial court dismissed a hospital from a lawsuit that claimed damages for loss of consortium as any negligence attributable to the hospital occurred six months prior to the plaintiff's marriage to the alleged medical malpractice victim. Torres v. Hyun Taik Cho, — N.Y.S.2d —-, 2010 WL 1949113, N.Y.Sup., 4/26/10.

Defendants Dr. Hyun Taik Cho, St. Vincent's Catholic Medical Center and Beth Israel Medical Center sought dismissal of plaintiff wife's complaint for loss of consortium. They argued the alleged injury suffered by plaintiff Jose Torres occurred prior to the plaintiffs' marriage. Torres had undergone surgery in 1997 and plaintiffs asserted that during the surgery Dr. Cho departed from accepted standards of medical care by leaving a piece of plastic tubing in Torres' abdominal cavity. Plaintiffs were married six months after this first surgery. After the marriage, Torres underwent a second surgery at St. Vincent's, also performed by Dr. Cho. During a third surgery performed by a non-party physician, the left-behind tubing was discovered. Torres claimed that Dr. Cho committed medical malpractice by leaving the foreign body in his abdominal cavity and by failing to detect it during the following 10 years, including during the second surgery performed by Dr. Cho.

The court noted that the award of damages for loss of consortium may be sought only by married persons. The plaintiffs opted not to oppose Beth Israel's motion to dismiss, since that hospital was involved only in the treatment rendered during the first operation, which preceded their marriage. However, Dr. Cho and St. Vincent's actionable conduct was not limited to the first surgery, which occurred before the marriage, but included alleged departures from the standard of care from which Torres allegedly suffered injury during the marriage. Therefore, Dr. Cho's and St. Vincent's motions to dismiss were denied.

Faced with Conflicting Laws, Court Favors Plaintiffs

The Supreme Court of Mississippi recently compared two conflicting code sections ' one of which requires a medical malpractice suit based on care provided to a mentally incompetent person to be brought within one year following death and the other requiring such a filing within two years of death ' and declared that the more liberal two-year statute of limitations should apply in order not to work a hardship on the plaintiffs. Estate of Johnson ex rel. Shaw v. Graceland Care Center of Oxfors LLC,— So.3d —-, 2010 WL 2197364 (Miss.6/3/10).

One of the decedents in the two consolidated actions, Ardelua Johnson, resided at Graceland Care Center of Oxford, LLC, until June 8, 2004. Eight days after she was moved from there, on July 16, 2004, she died. The executrix of Johnson's estate, served notice of intent to sue Graceland on July 7, 2006, and subsequently filed suit. The complaint alleged multiple counts of negligence, medical-malpractice, gross negligence, fraud, breach of fiduciary duty, statutory survival claims, and statutory wrongful death. Graceland filed a motion to dismiss the suit, claiming that Johnson's medical-malpractice claim was barred by the statute of limitations. Graceland further alleged that Johnson had mischaracterized the other claims against it in order to plead around the medical malpractice statute of limitations. The trial court ruled that all of the plaintiff's claims arose from alleged medical malpractice by Graceland and that the medical-malpractice statute of limitations began to run the last day Johnson received treatment from Graceland. Therefore, the plaintiff's claims were time-barred and her claims were dismissed with prejudice.

The decedent in the second consolidated case, Ester B. Conley, was treated at DeSoto Healthcare Center from August 2005 until Feb. 23, 2006. She died on March 19, 2006. Thomas Conley, her heir, served notice of intent to sue DeSoto Healthcare on Jan. 10, 2008. He filed the complaint on May 19, 2008, alleging negligence, gross negligence, medical malpractice, breach of contract, breach of fiduciary duty, and violation of the Mississippi Unfair and Deceptive Trade Practices Act. DeSoto Healtchare filed a Rule 12(b)(6) motion to dismiss alleging that all of the plaintiff's claims arose out of an alleged medical-malpractice action, and the complaint was time-barred by the medical-malpractice statute of limitations. The trial court denied DeSoto Healthcare's motion.

DeSoto Healthcare appealed, as did the Johnson plaintiff. The Mississippi Supreme Court noted that the State's statute of limitations for medical malpractice actions, Mississippi Code Annotated ' 15-1-36(2), generally requires suits to be filed within two years of the discovery of the tortious act or omission, or within two years of when the tort, with reasonable diligence, might have been first known or discovered. However, an exception is codified in Mississippi Code Section 15-1-36(5), which extends the limitations period for survivors of patients with unsound minds to two years following the patients' deaths. However, both defendant nursing homes claimed that subsection (5) of the medical-malpractice statute was limited by subsection (6) (Miss.Code Ann. ' 15-1-36(6)), which reads as follows: “When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under section 15-1-55, Mississippi Code of 1972.” Section 15-1-55 sets out a one-year limitations period for bringing a suit following the death of a patient, and it is applicable only where the death of the person occurs within the last year of the time that that person could have brought suit for medical malpractice. Hambrick v. Jones, 62 Miss. 240 (Miss. 1886). (This is
because only when the decedent dies within a year of the applicable statute of limitations can there be a time period that is both after the expiration of the applicable statute of limitations, and within one year after the death of such person, as required by Section 15-1-55.)

Taking the foregoing legislation into account, the court stated: “Mississippi Code Section 15-1-36(5) and 15-1-36(6) directly conflict with one another. We can think of no situation in which a person of unsound mind would die without ceasing to be under the disability of unsound mind and within one year of their medical malpractice statute of limitations running-as contemplated by subsection (6) and Section 15-1-55 ' because subsection (5) grants that person a two-year limitations period after his or her death. This Court will, therefore, construe the statute so as to prevent the plaintiffs from forfeiting their rights to bring suit due to confusion created by the conflict. If subsection (6) is applied, there may be some circumstances in which a forfeiture would be imposed on a plaintiff's right to bring suit because the time would be limited to one year after death-rather than two years as provided by subsection (5) (Rev.2003). Consequently, the limitations period found in Section 15-1-36(5) should be applied so as to prevent such a forfeiture.”

Loss of Consortium Damages Are for Married Plaintiffs Only

Facing no opposition from the plaintiffs, a New York trial court dismissed a hospital from a lawsuit that claimed damages for loss of consortium as any negligence attributable to the hospital occurred six months prior to the plaintiff's marriage to the alleged medical malpractice victim. Torres v. Hyun Taik Cho, — N.Y.S.2d —-, 2010 WL 1949113, N.Y.Sup., 4/26/10.

Defendants Dr. Hyun Taik Cho, St. Vincent's Catholic Medical Center and Beth Israel Medical Center sought dismissal of plaintiff wife's complaint for loss of consortium. They argued the alleged injury suffered by plaintiff Jose Torres occurred prior to the plaintiffs' marriage. Torres had undergone surgery in 1997 and plaintiffs asserted that during the surgery Dr. Cho departed from accepted standards of medical care by leaving a piece of plastic tubing in Torres' abdominal cavity. Plaintiffs were married six months after this first surgery. After the marriage, Torres underwent a second surgery at St. Vincent's, also performed by Dr. Cho. During a third surgery performed by a non-party physician, the left-behind tubing was discovered. Torres claimed that Dr. Cho committed medical malpractice by leaving the foreign body in his abdominal cavity and by failing to detect it during the following 10 years, including during the second surgery performed by Dr. Cho.

The court noted that the award of damages for loss of consortium may be sought only by married persons. The plaintiffs opted not to oppose Beth Israel's motion to dismiss, since that hospital was involved only in the treatment rendered during the first operation, which preceded their marriage. However, Dr. Cho and St. Vincent's actionable conduct was not limited to the first surgery, which occurred before the marriage, but included alleged departures from the standard of care from which Torres allegedly suffered injury during the marriage. Therefore, Dr. Cho's and St. Vincent's motions to dismiss were denied.

Faced with Conflicting Laws, Court Favors Plaintiffs

The Supreme Court of Mississippi recently compared two conflicting code sections ' one of which requires a medical malpractice suit based on care provided to a mentally incompetent person to be brought within one year following death and the other requiring such a filing within two years of death ' and declared that the more liberal two-year statute of limitations should apply in order not to work a hardship on the plaintiffs. Estate of Johnson ex rel. Shaw v. Graceland Care Center of Oxfors LLC,— So.3d —-, 2010 WL 2197364 (Miss.6/3/10).

One of the decedents in the two consolidated actions, Ardelua Johnson, resided at Graceland Care Center of Oxford, LLC, until June 8, 2004. Eight days after she was moved from there, on July 16, 2004, she died. The executrix of Johnson's estate, served notice of intent to sue Graceland on July 7, 2006, and subsequently filed suit. The complaint alleged multiple counts of negligence, medical-malpractice, gross negligence, fraud, breach of fiduciary duty, statutory survival claims, and statutory wrongful death. Graceland filed a motion to dismiss the suit, claiming that Johnson's medical-malpractice claim was barred by the statute of limitations. Graceland further alleged that Johnson had mischaracterized the other claims against it in order to plead around the medical malpractice statute of limitations. The trial court ruled that all of the plaintiff's claims arose from alleged medical malpractice by Graceland and that the medical-malpractice statute of limitations began to run the last day Johnson received treatment from Graceland. Therefore, the plaintiff's claims were time-barred and her claims were dismissed with prejudice.

The decedent in the second consolidated case, Ester B. Conley, was treated at DeSoto Healthcare Center from August 2005 until Feb. 23, 2006. She died on March 19, 2006. Thomas Conley, her heir, served notice of intent to sue DeSoto Healthcare on Jan. 10, 2008. He filed the complaint on May 19, 2008, alleging negligence, gross negligence, medical malpractice, breach of contract, breach of fiduciary duty, and violation of the Mississippi Unfair and Deceptive Trade Practices Act. DeSoto Healtchare filed a Rule 12(b)(6) motion to dismiss alleging that all of the plaintiff's claims arose out of an alleged medical-malpractice action, and the complaint was time-barred by the medical-malpractice statute of limitations. The trial court denied DeSoto Healthcare's motion.

DeSoto Healthcare appealed, as did the Johnson plaintiff. The Mississippi Supreme Court noted that the State's statute of limitations for medical malpractice actions, Mississippi Code Annotated ' 15-1-36(2), generally requires suits to be filed within two years of the discovery of the tortious act or omission, or within two years of when the tort, with reasonable diligence, might have been first known or discovered. However, an exception is codified in Mississippi Code Section 15-1-36(5), which extends the limitations period for survivors of patients with unsound minds to two years following the patients' deaths. However, both defendant nursing homes claimed that subsection (5) of the medical-malpractice statute was limited by subsection (6) (Miss.Code Ann. ' 15-1-36(6)), which reads as follows: “When any person who shall be under the disabilities mentioned in subsections (3), (4) and (5) of this section at the time at which his right shall have first accrued, shall depart this life without having ceased to be under such disability, no time shall be allowed by reason of the disability of such person to commence action on the claim of such person beyond the period prescribed under section 15-1-55, Mississippi Code of 1972.” Section 15-1-55 sets out a one-year limitations period for bringing a suit following the death of a patient, and it is applicable only where the death of the person occurs within the last year of the time that that person could have brought suit for medical malpractice. Hambrick v. Jones , 62 Miss. 240 (Miss. 1886). (This is
because only when the decedent dies within a year of the applicable statute of limitations can there be a time period that is both after the expiration of the applicable statute of limitations, and within one year after the death of such person, as required by Section 15-1-55.)

Taking the foregoing legislation into account, the court stated: “Mississippi Code Section 15-1-36(5) and 15-1-36(6) directly conflict with one another. We can think of no situation in which a person of unsound mind would die without ceasing to be under the disability of unsound mind and within one year of their medical malpractice statute of limitations running-as contemplated by subsection (6) and Section 15-1-55 ' because subsection (5) grants that person a two-year limitations period after his or her death. This Court will, therefore, construe the statute so as to prevent the plaintiffs from forfeiting their rights to bring suit due to confusion created by the conflict. If subsection (6) is applied, there may be some circumstances in which a forfeiture would be imposed on a plaintiff's right to bring suit because the time would be limited to one year after death-rather than two years as provided by subsection (5) (Rev.2003). Consequently, the limitations period found in Section 15-1-36(5) should be applied so as to prevent such a forfeiture.”