Articles Posted in Uncategorized

Numerous states, including Wisconsin and Georgia, have enacted statutes that limit the amount of non-economic damages a plaintiff can recover in a medical malpractice action. In addition to economic damages, juries can award plaintiffs damages for emotional injuries, like loss of consortium or loss of companionship, but in states that have passed legislation capping the amount of recovery, the decision is essentially removed from the jurors’ hands and placed in the hands of legislators. Lawmakers generally defend damages caps on the grounds that it contains the cost of healthcare by discouraging “defensive medicine.” However, the recent ruling out of the Wisconsin 1st District Court of Appeals found that the cap violated the Equal Protection Clause of the Constitution, as the cap allowed for full awards for less injured patients, but resulted in reduced awards for the catastrophically injured.

Conversely, doctors and insurers will be inherently opposed to the ruling, as without a cap on non-economic damages their liability, and thus costs of seeking protection from that liability in the form of medical malpractice insurance, will rise. In deciding whether to enact recovery limits, the state legislatures must balance the interests of keeping the cost of healthcare low with allowing plaintiffs to fully recover for harm caused by the negligence of doctors. One important consideration is to whom should the burden of offsetting the costs of those mistakes fall; the party making the mistakes, or the victims? Where recovery limits are imposed, the doctors are not forced to bear the full risk of their own negligence, as they are protected by statute, no matter how egregious their errors or omissions may be. It seems natural that the doctors, who stand to benefit from the transaction if successful, should then bear the risk of complete liability for any harms caused during that transaction, whether emotional or otherwise. The rationale that the recovery limits somehow keep the costs of healthcare low are speculative at best, as even though states have maintained recovery limits health insurance premiums have risen. Admittedly, increases in healthcare prices are more directly tied to the controversial Affordable Care Act, but without a significant and legitimate showing that recovery limits somehow benefit the public, how can the state legislatures continue justify the caps? If caps do not keep the prices of healthcare down, the insurance providers and doctors are benefitting at the expense of injured plaintiffs.

The attorneys from the case have already publicly stated that they will ask the Wisconsin Supreme Court to hear the case, and depending on the Court’s ruling, it could become nationally significant in the near future. If the Wisconsin Supreme Court bases its finding under an interpretation of the United States Constitution, the United States Supreme Court will then be able to review the case. However, if the Wisconsin Supreme Court declines to make an interpretation based on the United States Constitution or Federal Law, the United States Supreme Court will likely abstain, as it does not generally review lower-court rulings based upon adequate and independent state grounds.

The 11th Circuit Court of Appeals, whose opinions are binding on Federal and State Courts in Alabama, Florida, and Georgia, recently affirmed the holding of the United States District Court for the Northern District of Alabama to the extent that plaintiffs failed to establish that participation in a clinical study caused any injuries due to the negligence of the defendants (the physician who designed and conducted the study, Internal Review Board who approved the study, and Masimo Corporation, who manufactured the equipment used in the study). Thus, the Court of Appeals found the plaintiff’s claims for negligence, negligence per se, breach of duty, and products liability claims were properly dismissed. However, although the Federal District Court also dismissed the plaintiff’s claim alleging lack of informed consent, the Appellate Court certified to the Alabama Supreme Court to determine whether a plaintiff who claims that he did not give informed consent to medical treatment provided as part of a clinical study must first show that he was injured as a result of that treatment.

The guardians of the plaintiff infants were required to execute informed consent documents to enroll the premature infants in a study designed to analyze the effects of differing oxygen saturation levels on premature infants. During the study, the infants were randomly divided into two groups whom would be subjected to varying levels of oxygen saturation. The group subjected to higher levels of oxygen saturation faced an increased risk of developing retinopathy, which can lead to blindness, while the group subjected to lower levels of oxygen saturation faced an increased risk of neuro-developmental impairment or other neurological issues. Both test groups subsequently suffered from the ailments; however, because both retinopathy and neuro-developmental impairment are consistent with injuries associated with extremely low birth-weight infants, the plaintiffs were unable to show that it was their participation in the study, and not their premature births and low birth-weight, that caused their injuries.

Because the above case turns upon a material state law question, the 11th Circuit Court of Appeals certified the following question for determination of Alabama law to the Alabama Supreme Court: “Must a patient whose particular medical treatment is dictated by the parameters of a clinical study, and who has not received adequate warnings of the risks of that particular protocol, prove that an injury actually resulted from the medical treatment in order to succeed on a claim that his consent to the procedure was not informed?” Importantly, by refusing to rule on the issue and certifying the question to the Alabama Supreme Court, whatever conclusion drawn in Alabama will not be binding on Georgia or Florida, leaving the question unresolved for Florida and Georgia.

Generally, a statute of limitations limits the time period in which an injured party may file suit against the party whom allegedly caused their injuries. In medical malpractice actions, OCGA §9-3-71(a) states that “an action for medical malpractice shall be brought within two years after the date on which an injury or death arising from a negligent or wrongful act or omission occurred.” More specifically, in medical malpractice cases arising from a misdiagnosis that resulted in a failure to properly treat a condition, the “injury” referred in the above statute occurs at the time of the misdiagnosis. However, the proposition that the statute of limitations period runs from the date of the misdiagnosis is only “generally true,” as Georgia courts recognize an exception where misdiagnosis results in the development of a new and different injury than that which existed at the time of the misdiagnosis. In cases where the “new injury exception” applies, the limitation period begins to run from the date the symptoms attributable to the new injury first manifest.

This exception to the misdiagnosis exception to the medical malpractice statute of limitations was recently reaffirmed in a Georgia Appellate Court decision involving a 53 year-old male, Mr. Fender, who was admitted to the hospital after he woke up with disorientation, a headache, dizziness, extremely high blood pressure, and blurred vision. While at the hospital he underwent a carotid ultrasound, which is a diagnostic imaging tool used to evaluate carotid arteries for narrowing, or stenosis caused by plaque. His ultrasound was performed by a sonographer employed by the hospital and the results were then sent to Dr. Spell, an on-call radiologist, who interpreted the results as showing no significant stenosis (narrowing of the ventricle). Mr. and Mrs. Fender were told that the results of the ultrasound were “normal” and he was subsequently discharged from the hospital on May 19, 2009 with instructions to follow up with his primary care physician and an ophthalmologist.

Mr. Fender followed up with the primary care physician and ophthalmologist as recommended, and his primary care physician informed him that Mr. Fender had suffered a transient ischemic attack, which causes temporary systems that can resemble the symptoms of a stroke, but no additional ultrasounds were performed. Then, on April 7, 2010, Mr. Fender suddenly collapsed at his home and was unable to move or to speak, and he was unable to recognize his family. At the hospital, Mr. Fender was diagnosed with having suffered “a massive stroke,” and ultrasound imaging showed a complete obstruction of his carotid artery in the same location as the plaque shown in the May 2009, ultrasound.

Automotive and technology companies that are involved in the research and development of autonomous vehicle programs will have to also weigh the legal implications involved in the manufacturing or design of such vehicles. However, analyzing potential liability will largely be based on speculation, as legal doctrine related specifically to autonomous vehicles is non-existent.

A potential foundational case could be filed on behalf of a man killed in a crash last year while using the semi-autonomous driving system on his Tesla, although the attorney for the family indicated that no decisions have been rendered at this time. The driver was killed when the Tesla, allegedly traveling at 74 miles per hour in a 65 mile per hour zone, collided with a truck. According to a report published by the National Transportation Safety Board, the collision occurred while the vehicle was in “Autopilot” and throughout the trip the system repeatedly gave the drive warnings that said “Hands Required Not Detected,” which indicates that the driver’s hands were not on the steering column, despite the system directing the driver to do so. Additionally, the report noted that during a 37-minute period of the trip when the driver was required to have his hands on the wheel, he did so for only 25 seconds.

The use of autonomous or semi-autonomous vehicles will likely increase as new technologies are developed, as will the frequency of accidents involving those vehicles. The litigation of those claims will raise novel questions about the admissibility and reliability of evidence pulled from the computer systems of the autonomous vehicles, as well as how to monitor and detect the actions of the drivers. As was the case involving Volvo, automobile companies have the means of manipulating reports generated by vehicles, and the accuracy of data generated by those programs should be heavily scrutinized.

In the opinion filed on June 5, 2017, the Georgia Supreme Court found that Six Flags could properly be held liable for Joshua Martin’s life-changing injuries sustained in a brutal attack at a bus stop outside Six Flags Over Georgia in 2007. The Supreme Court agreed with the Court of Appeals in that the jury was authorized to find Six Flags liable for the breach of duty, but disagreed as to the appropriate rationale for the finding. Mr. Martin’s argument for recovery was based on a theory of premises liability, which is codified under Georgia statutory law, O.C.G.A. § 51-3-1, and states “where an owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries caused by his failure to exercise ordinary care in keeping the premises and approaches safe.”

In premises liability cases the extent of the duty owed to the plaintiff depends upon the plaintiff’s “status,” or whether the plaintiff was an invitee, licensee, or trespasser. This inquiry is crucial in determining the degree of care owed to persons entering the premises. Invitees enter onto the premises based upon an express or implied invitation and for a purpose relating to the owner’s interests or activities, and the owner has a duty to exercise reasonable care to prevent injuries caused by activities on his land. In this case, the jury found that Mr. Martin was an invitee, so Six Flags had a duty to exercise reasonable care to prevent injuries resulting from his presence on their premises.

The sort of injuries that owners must take reasonable care to prevent are classified as those which are reasonably foreseeable. To show that the type of injury suffered was reasonably foreseeable, injured plaintiffs will often show that other victims suffered the same or similar injuries in the past; that there was a high probability that such injuries would result; or that the injury suffered was one that would not have occurred but for negligent acts of the owner. In Mr. Martin’s case, all three of the above indications of foreseeability were present. About one year prior to the attack on Mr. Martin, Six Flags was the site of a gang-related drive-by shooting, in which no employees of Six Flags who were injured would give a statement, presumably because of their gang affiliations. Thus it was not only foreseeable that an invitee could be injured because of gang activity on their premises, but it was highly probable.

The multinational medical goods and pharmaceutical manufacturer Johnson & Johnson was recently hit with a third damages verdict over $50 million this year relating to talcum powder. The plaintiff, Deborah Giannecchini was diagnosed with ovarian cancer three years ago following her use of Johnson & Johnson’s baby powder for feminine hygiene for over 40 years. The jury awarded Ms. Giannecchini the $72 million verdict after only three hours of deliberation, indicating that the jury felt compelled to send Johnson & Johnson a strong message.

The plaintiff’s main argument was based on products liability, failure to warn, negligence and conspiracy theories. In short, the plaintiff argued that Johnson & Johnson was aware of decades of studies that indicated the use of talc increased the users chances of developing ovarian cancer and declined to add warning labels. Moreover, it was alleged Johnson & Johnson actively sought to conceal the known dangers by disseminating outdated or misleading information to the public, and internal documents showed that Johnson & Johnson was advised by a consultant that the company had made “outright false,” “inaccurate” and “questionable” statements about the risk of long-term exposure to talc. These allegations show a wanton or reckless disregard for the value of human life, and are likely the facts that gave rise to the award of punitive damages in this case. Punitive damages are meant to “punish” the offender, and are only proper in cases in which the defendant acts with a reckless disregard for human life, or otherwise acts egregiously.

Despite being slammed with two other verdicts, each worth over $50 million, there are no indications that Johnson & Johnson sought a settlement to prevent another staggering verdict. Clearly, Johnson & Johnson put too much faith in its defense, that ovarian cancer had no single cause, relying upon both the FDA and CDC’s determination that talc-based products were safe. In cases where the decisions of multinational corporations are subject to scrutiny by twelve members of the local community, an argument that “the government said it was okay” will not be very persuasive. Members of the local community are extremely unlikely to feel empathy towards a corporation that earned $74 billion in revenue in 2014, but refused to include a few additional words on their products. In the plaintiff’s attorney’s opening statement, he presented the case to the jury as an opportunity to effect the behavior of a worldwide corporation for the benefit of the millions of invisible citizens whose voices would never be heard. These and similar cases present unique opportunities for the citizens of local communities to effectuate meaningful social change, if allowed by the facts.

I was recently alerted to a DUI incident involving a celebrity and thought it would be an interesting addition to my blog.  From my cursory investigation, most of the information regarding this incident is listed on Radar Online; a site mostly dedicated to celebrity gossip and related issues. After reviewing this incident, the facts revealed that the celebrity had a long criminal history that demonstrated a pattern of drinking alcohol while operating a vehicle, fleeing accidents and failing to render aid to the victim. As such, the facts of the recent crash and criminal history are ripe for a legal analysis.

On April 24, 2017, Chris Soules, a former contestant on The Bachelor, was involved in a hit and run while operating his 2008 Chevrolet Silverado in the small rural town of Aurora, Iowa.  The area of impact was on a roadway which was straight without any possible visual obstruction. Specifically, Chris Soules was operating a large truck that rear-ended a tractor being operated by Kenneth Mosher.  Chris Soules got of his vehicle to check on Mosher (and attempted CPR) and called 911 around 8:20 p.m.  The 911 recording reflects a frantic Chris Soules noticed blood

(booking photo credited to Special To The Register)