A recent federal medical malpractice case out of the Windy City has just about everything a lawyer could want: a big verdict, famous judges, a major difference between state and federal law and a disquisition on a legal fine point that no normal person would find the least bit interesting.
I could be neutral and say “no non-lawyer” would find interesting, but I think “no normal person” is more accurate. There is nothing normal about much of what lawyers fight over and it disturbs me how often legal disputes turn on what normal people find absurd. Justice fails when ordinary people see a so-called legally correct result that doesn’t meet the test of common sense.
I believe justice was served in this federal malpractice case, however, and had the identical facts occurred in a private hospital here in Georgia, as opposed to a federally affiliated hospital, the defendants’ appeal would have had no basis and would need no hermeneutical rhetoric from legal scholars. On the other hand, change the facts ever so slightly in Georgia, and the plaintiffs would have been thrown out by the judge before getting to a jury. You can read the full Arroyo v. United States opinion here, in which the family had a $29.1 million verdict affirmed by the United States Court of Appeals for the Seventh Circuit.
In a nutshell, Christian Arroyo was born premature on May 17, 2003 and he quickly developed neonatal sepsis. The controversy centered on his doctors’ failure to diagnose this life-threatening infection for at least 12 hours. Had the diagnosis been made within the first few hours and penicillin treatment started, Christian probably would have been a normal kid, certainly not quadriplegic.
The Arroyos did not file their lawsuit until December 30, 2005, i.e., apparently after the two-year statute of limitations had run. The idea behind a statute of limitations is that, over time, memories fade and records are lost and, unless we’re talking about a murder, maybe it’s a good idea to let bygones be bygones under such circumstances. But, what if, in a particular case, solid evidence is still available and there would be no problem proving liability to a jury? What if, as a result of medical malpractice a person is left incompetent and misses the statute because of his incompetence? What if the injured person is a child who doesn’t have the knowledge or ability to go out and hire a lawyer? For these and other reasons, statutes of limitation tend to be disfavored at law, and often particular statutes of limitations have a host of exceptions and conditions. Whenever a legislature writes a statute, however, the political considerations get first priority and centuries of jurisprudence are an afterthought.
The political pendulum has mostly swung towards physicians. A fairly common method to help doctors at the expense of malpractice victims is to shorten the statute of limitations for bringing a lawsuit. To shorten the statute for everyone might look unfair to voters, so the doctor-friendly legislature typically sets conditions that have the practical effect of shortening the statute. For example, Georgia has no discovery rule, like many states have, which says that the statute of limitations does not begin to run until the patient discovers either that an injury occurred or that a doctor caused a known injury. Suppose a doctor fails to diagnose a cancer and two years goes by before the patient is diagnosed with an inoperable tumor. Georgia law says tough luck for the patient.
Sometimes though, the legislature openly shortens the statute. It used to be that a child was allowed to grow up before the two-year limit began to run. An infant injured at birth used to have two years following his twenty-first birthday–the former age of majority, now eighteen–to file a malpractice suit. During one of Georgia’s regularly occurring “malpractice crises,” the legislature decided that seven-years old was time enough. Had Christian been born at a private Georgia hospital, he would have had until his seventh birthday to file, so his suit was filed timely and would not have been an issue on appeal. On the other hand, suppose Christian were ten-years old when he developed an overwhelming hospital acquired infection that went undiagnosed for twelve hours. Then the two-year statute of limitations would be strictly enforced and Christian could not get into a Georgia courtroom, a technicality worth $29.1 million.
Christian was born in Northwestern Memorial Hospital, and the culpable doctors were actually employees of the Erie Center and on staff at Northwestern Memorial, a major teaching hospital of Northwestern University School of Medicine. Because the Erie Center was part of the United States Public Health Service, the United States of America was substituted for the doctors as the defendant and the case proceeded in federal court under the Federal Tort Claims Act. Unlike Georgia law, under the FTCA there is a discovery rule. The appeal to the Seventh Circuit centered on when the Arroyo family discovered that Christian’s injury was caused by federal employees’ negligence.
Enter judges Easterbrook and Posner, famous for their work in the Law and Economics movement, which dominates judicial thinking these days. The Law and Economics movement is very controversial because it gives credence to the most efficient economic solution to a dispute rather than simply determining the legal property rights of the litigants, regardless of economic consequences, but that’s a topic for another day. In any event, these well known jurists opined at length that the Arroyos never knew that the doctors could have prevented Christian’s injuries until about a year after his birth and, therefore, the lawsuit was, indeed, filed within two years of discovery. In Georgia, of course, Christian would have had until his seventh birthday to file his lawsuit and there would be nothing to appeal.
I’ve written about medical fraud before. In the typical case, a doctor bills an insurer for procedures he never performed. Eventually, an audit picks up the discrepancy and the doctor goes to jail. This kind of fraud is little different than writing bad checks or stealing from the cash register and is easy to understand. This week in Florida, a very unusual type of medical fraud resulted in a $178 million verdict; $168 million in compensatory damages and another $10 million in punitive damages.
Clay Chandler was a police lieutenant in his forties when in March 2007 he went to Memorial Hospital in Jacksonville, Florida for bariatric surgery, i.e., obesity surgery. Chandler had first gone to a required class from the hospital’s bariatric center and was led to believe that his surgeon had a high level of experience and that the hospital was a well-oiled machine. Yes, the surgery had its risks, but continuing on with morbid obesity was likely to lead to an early death. The hospital used the American Society of Bariatric Surgery’s Center of Excellence seal in advertising pamphlets even though Dr. DePeri, who performed Chandler’s surgery, did not at that time have the requisite experience to be accredited by the Society.
Following his surgery, Chandler’s heart stopped. For whatever reason, eight days went by before a leak in Chandler’s bowel was discovered and repaired. By that time Chandler had suffered severe brain injury and is now confined to a wheelchair. He cannot bathe or dress himself and a video shows him to be emotionally labile. To make his life even more miserable, while Chandler was on a respirator for an extended period, the nurses didn’t keep his eyes properly covered and moist and he wound up injuring his corneas. His medical bills are some $250,000 annually and he is expected to have a normal life expectancy.
Obviously, the jury awarded Chandler much more than his medical bills. The jurors were plainly angered not merely by the deficient care that Chandler received but because the hospital used deceptive techniques to lure obese patients into their maw. But, you say, Chandler is a cop and should be used to liars and frauds in his line of work. Perhaps. But arresting crooks is a bit different than deciding whether to have elective surgery. At some point a patient has to trust the recommendations of his physicians, particularly when he is told that if he doesn’t have surgery he is likely to die young. Chandler went to cop school, not medical school, and it was reasonable for him to rely on the hospital’s reputation. Too bad the reputation wasn’t deserved.
Because the object of an abortion is to kill the baby or eliminate the fetus (depending on whether you are pro-life or pro-choice,) it should not surprise anyone that abortions rarely lead to medical malpractice lawsuits. The object is, after all, to end or prevent life, not save it. Occasionally, a woman is seriously injured due to medical negligence during an abortion, but because the underlying issue is so controversial it remains challenging for a plaintiff’s lawyer to accept an abortion-related medical malpractice case. Not only must the lawyer eliminate members of the jury pool because of bias favoring doctors, but he needs to eliminate anyone who would condemn the woman for having an abortion in the first place. Pretty soon, nobody is left to try the case.
The perfect storm occurred in Jackson, Mississippi recently. In 2003, Daschica Thomas went to the Jackson Women’s Health Organization abortion clinic. This week, a judge awarded Daschica and her husband Christopher over $600,000 in damages.
It appears that for some reason, Dr. Joseph Booker started an abortion procedure on Daschica but told her he was unable to finish. He sent her home with instructions to return at another time when another doctor would be able to complete the procedure. Daschica, a diabetic, did as instructed and soon developed a serious infection. She spent a week and a half in a coma before she awoke. She apparently went on to recover.
The odd thing about this case is that it was set for trial on November 29, 2011, but no one showed up for Dr. Booker. Under the circumstances, the judge is required to look at the allegations in the lawsuit and assume them to be true. If these facts that are assumed true lay out a case of medical malpractice, then the judge must enter a “default judgment” against the doctor. On January 10, 2012, the judge held a damage hearing on the default judgment and awarded the Thomases $600,435, of which $500,000 was for pain and suffering.
Why didn’t the doctor show up in court? The reasons are unclear, however, we do know that Dr. Booker has sued the clinic for not responding to the Thomas’s lawsuit on his behalf. It seems like the clinic didn’t respond to Dr. Booker’s lawsuit either, so he is seeking to have his own default judgment entered. The end result could be that the Thomases will have to chase after Dr. Booker for their money and he, in turn, may have to chase after the owners of the clinic for contribution. It’s a mess.
I once had a medical malpractice defendant default. I had sued two different doctors and two different emergency rooms. Everyone answered except the first emergency room my client went to. The default was the result of a SNAFU. A big law firm represented this emergency room and a competent young lawyer wrote out a proper legal answer. The young lawyer gave the paperwork to an assistant, but somehow the response never made it to the courthouse. Because there were four defendants and, therefore, four times the usual amount of paperwork, I didn’t myself immediately realize one of the defendants had defaulted. And, even after I did, the big law firm that the young lawyer worked for put up a herculean fight that lasted nearly a year before the judge finally entered the default judgment. I don’t know why it took some six years for the judge to enter the default for the Thomases, but courts as a rule do not like to award money damages without reaching the merits of a case, so a party that loses on a technicality often has many avenues of appeal.
A recent settlement involving the Cleveland VA Hospital reminded me of the Feres doctrine, something I hadn’t thought about in more than a year. In May 2008, Robert Sanner had some belly pain following removal of a cancerous kidney. Sanner had to come back three times to the VA before a CT scan was performed in August, which revealed the presence of foreign bodies left from the cancer surgery. The following day, surgeons removed two 14 x 11 towels. Following the second surgery, Sanner developed an abdominal hernia, not terribly unusual under the circumstances, but requiring yet another surgery to repair. Sanner sued and just settled the case for $275,000. Had the same sequence of event happened while Sanner had been on active duty, he would not have gotten a dime, because of the Feres doctrine.
I’ve written about Feres before. Justice Robert Jackson wrote the infamous decision in 1950. Justice Jackson ruled that a man on active duty may not sue the military for negligence. No matter how incompetent a military doctor is, for example, a serviceman injured through negligence has no recourse. The Feres decision itself involved three personal injury lawsuits against the military, one of them a medical malpractice case in which an army surgeon left a 30 x 18 inch towel in a dogface’s belly.
A few months back, the Supreme Court had an opportunity to overturn Feres but decided to walk away. I’ve written about the Witt case previously. Witt was an airman who developed a simple case of appendicitis that would not normally challenge a first-year surgical resident assisted by a medical student and a couple of student nurses. Witt’s medical professionals, however, managed to kill him in a series of blunders so awful that even military investigators couldn’t find excuses for them. Every court his widow went to turned her down, based on Feres, and now even the Supreme Court has said no. There will be no justice for military negligence victims now until Congress repeals the Feres doctrine.
Every now and again I come across an article about a medical related lawsuit with an odd story behind it. Dr. Stacy Makhnevich is a dentist in Manhattan who is a part-time opera singer. (Hey, I’m not going to throw stones. I am a full-time lawyer and semi-retired doctor.) An ex-patient, Robert Lee, now a resident of Huntingtown, Maryland, recently sued Dr. Maknevich seeking class action status and alleging violation of copyright laws, among other things.
Lee apparently paid what he believes is an excessive fee out of pocket, but has been unable to obtain his medical records to submit to his insurer for reimbursement. Lee posted negative comments on Yelp and elsewhere about the coloratura.
According to the complaint, filed in Federal Court in the Southern District of New York (Manhattan,) Lee alleges that he was required to sign an agreement waiving any right to comment publicly on Maknevich’s services before she would treat him for his toothache. Moreover, Lee says the agreement assigned any copyrights of such writing to the coloratura (I can’t stop using this word. To understand why, read James M. Cain’s, “Mildred Pierce,” a non-mystery novel written by the renowned mystery novelist.) Under a copyright infringement theory, the coloratura began billing Lee $100 a day as long as his articles remained online. Dr. Makhnevich’s attorney also sent Lee an in terrorem letter threatening legal mayhem. Anyone wanting to read all the gruesome details of what happened should read the complaint at the link above. You won’t be disappointed.
Talk about things getting out of control! How in blazes did a common-place problem become a class-action lawsuit? After all, Mr. Lee believes he was overcharged and the dentist no doubt believes she charged a fair price. Sounds like the coloratura and her office staff need to learn how to handle disgruntled patients. It’s not very hard: You return phone calls, you help your patients file their insurance claims (or file the claims for them and increase your fees, if necessary, to cover the service) and don’t blow off complaints. A complainer must be considered a potential plaintiff. I know what I’m talking about: I’ve been a doctor for 40+ years and never once was sued for medical malpractice, let alone sued as a defendant in a class action.
Lee received a letter threatening litigation, got scared I’m guessing and ran to a lawyer. It might be more accurate to say the letter drove Lee into a lawyer’s office. I still don’t understand why this problem was not resolved without a lawsuit, but I don’t know all the facts and have more sense than to speculate. What I do know is that a lot of bad law gets made out of bad cases and I wouldn’t be surprised if the courts have a field day with this one.
