Nevada Medical Malpractice Lawsuit Damages Cap Being Challenged

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Published: August 27th, 2010 • No Comments

The family of a Nevada woman who died due to a medical misdiagnosis is preparing to challenge the state’s cap on damages in medical malpractice lawsuits. 

The wrongful death lawsuit was filed by the family of Adeline Villegas, who died in August 2007 of a ruptured ulcer and peritonitis after being misdiagnosed by Dr. Mahmud A. Sheikh as pancreatitis. The lawsuit was brought in 2008 against both Sheikh and Spring Valley Hospital.

The family’s lawsuit ran into the state’s medical malpractice cap of $350,000 on non-economic damages, which defense attorneys argue is the amount that would have to be divided among Villegas’s husband and six children. The plaintiffs are challenging that interpretation, saying that the cap should apply to each individual claimant, which would raise the amount awarded for pain and suffering to $5.6 million. They are also ready to challenge the constitutionality of the entire malpractice damage cap if the court does not agree with their interpretation of how the cap should be applied.

About 30 states currently have damage caps in some form, but they have increasingly been challenged by plaintiffs with medical malpractice lawsuits. State Supreme Courts in Illinois and Georgia have thrown out similar damages caps over the last year, saying that the imposition of caps by the state legislatures violated the plaintiffs’ rights to a trial by jury, since the cap overrode the jury’s judgment on what the compensation for those cases should be.

Physicians in Nevada say that the caps keep their insurance premiums down and keep doctors from fleeing the state. However, a recent high-profile Hepatitis C outbreak involving a Las Vegas endoscopy clinic has cast physicians in the state in a negative light, and may result in a court that is unsympathetic to their cause.

The current Nevada malpractice caps were approved by voters in a 2004 campaign by physicians across the state.

California was the first state to enact a damage cap in 1975, specifically limiting the non-economic damages in medical malpractice lawsuits. According to the National Conference of State Legislatures, as of 2005 ten states capped recoveries specifically on medical malpractice cases and another 22 have caps that are not limited to medical malpractice. About a dozen states also have caps on punitive damages.

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(Recreational Use Immunity) Civil Code Section 846 does not shield landowner from liability to recreational user for injuries caused by negligent driving of an employee

(Recreational Use Immunity) Civil Code Section 846 does not shield landowner from liability to recreational user for injuries caused by negligent driving of an employee.  Alan Richard Klein v. United States of America,  (No. S165549, 9^th Circuit No. 06-55510 C.D. Cal No. CV-05-05526-PA, California Supreme Court  July 26, 2010)

The issue in the is case presented to the California Supreme Court had to do with the scope and applicability of California Civil Code section 846, which provides that a landowner “owes no duty of care to keep the premises safe for entry for use by others for any recreational purpose”.  The Ninth Circuit Court of Appeals asked the California Supreme Court to decide whether this provision applies to acts of vehicular negligence committed by the landowner’s employee in the course and scope of his employment that causes personal injury to a recreational user of that land. 

The California Supreme Court concluded that the subject code section does not extend to acts of vehicular negligence by a landowner or the landowner’s employee while acting within the course and scope of employment.  The court noted that the phrase “keep the premises safe” describes the property based duties underlying premises liability which is a liability category that does not include vehicular negligence.  Thus, Section 846 does not bar a recreational user’s vehicular negligence claim against landowner.  Further, the court held that Section 846 does not release landowners or their employees from their duty to use do care while engaging in potentially hazardous activities, including driving a vehicle.  Thus, the court held that Section 846 does not shield a landowner from liability from recreational user for injuries caused by the negligent driving of the landowner’s employee.

(Defamation) Court fails to instruct jury that hospital had to prove union mailed defamatory postcards to hospital’s prospective clients with actual malice

(Defamation) Court fails to instruct jury that hospital had to prove union mailed defamatory postcards to hospital’s prospective clients with actual malice.  Sutter Health v. Unite Here, (No. C054400 California Courts of Appeal, Third Appellate District July 21, 2010)

Defendant, a collective bargaining representative for workers employed at commercial laundry facilities complained that the facility owner did not maintain a sanitary workplace.  The defendant mailed postcards to third parties warning them that the hospital used linens cleaned by a company that failed to insure the linens would be free of blood and feces.  Plaintiff hospital sued for defamation, libel and intentional interference with prospective economic relations.  The jury found in favor of the plaintiff and awarded  it millions of dollars.  The defendant argued the trial court should have instructed the jury that plaintiff needed to prove the defendant made the defamatory publication with actual malice. 

The Appeals Court reversed and remanded the case.  It found that if a plaintiff seeks state remedies for defamatory labor dispute publications, it must prove the defamatory publication was made with actual malice.  The rule encompasses publications directed to “at secondary targets” which are entities using the services of another company that is engaged in a labor dispute with a union.  Here, the trial court told the jury that the defendant could be liable if it failed to use reasonable care in determining the truth or falsity of the publication.  Given that the plaintiff needed to prove actual malice, the trial court erred in giving that instruction and therefore the Appeals Court reversed.

(Arbitration) Arbitrator who allegedly failed to make conflict of interest disclosures enjoys absolute arbitral immunity

(Arbitration) Arbitrator who allegedly failed to make conflict of interest disclosures enjoys absolute arbitral immunity.  La Serena Properties v. Gerald Weisbach, (No. A126283 California Courts of Appeals, First Appellate District, Division Four June 1, 2010)

The parties to this dispute were required to arbitrate their dispute with the American Arbitration Association (AAA).  The dispute involved a construction contract and promissory note.  After being compelled to go to arbitration, the attorneys for the respondent conspired to persuade the petitioner to accept a certain individual as an arbitrator but they did not disclose this individual had a long standing family relationship with one of the respondent’s counsel and that the arbitrator was the boyfriend of the counsel’s sister.  The arbitrator denied more than 20 claims against the respondent and awarded a sum of money for two claims.  Subsequently, the petitioner successfully set aside the arbitration award.  Petitioner then filed a complaint against the arbitrator and AAA for fraud and related causes of action.  The trial court sustained the arbitrator and AAA’s demurrers based on absolute arbitral immunity for quasi-judicial acts.

The Appeals Court affirmed the trial court’s order.  The Appeals Court found the duty performed by a private arbitrator is a judicial act and absolutely immunity applies.  Further, arbitrators are mandated by law to make disclosures for precisely the same reason that judges must, to maintain impartiality.  The court found that processes of disclosure of potential conflicts of interest are virtually the same between  judges and arbitrators.  Due to the similarity, this court determined the arbitrator’s alleged failure to make adequate disclosures falls within the scope of the absolute immunity.  Thus, the trial court was correct to grant the arbitrator and AAA’s demurrer.

(Expert Opinion) Material dispute does not exist where plaintiff’s expert does not state facts to support opinion for product liability claim

(Expert Opinion) Material dispute does not exist where plaintiff’s expert does not state facts to support opinion for product liability claim.  Katya Bozzi v. Nordstrom, INC., (No. B217782 California Courts of Appeal, Second Appellate District, Division Eight July 13, 2010).

Plaintiff brought an action against defendants for personal injury.  The plaintiff appealed from the grant of a summary judgment in favor of defendants.  The facts of the case involved a plaintiff who was riding the down escalator to the first floor of defendant’s department store when the escalator stopped abruptly due to a power outage that was apparently caused by a nearby traffic accident.  The trial court granted the motion for summary judgment finding the plaintiff did not show a triable issue of fact that defendants breached any duty of care or that the escalator was defective.

In opposition to the motion of summary judgment, the plaintiff produced an expert who provided a declaration in support of its opposition.  However, the expert had not seen, ridden or inspected the escalator, relying only on his own reasoning that if an escalator stopped abruptly it must have been defectively designed or maintained.  The court found that the expert’s opinion was insufficient to create a material dispute, having not stated any facts to support his opinion.  In contrast, the defendant showed that the escalator showed it was state of the art when manufactured and had the most comprehensive maintenance available, having been inspected every 24 days.  Thus, the Appeals Court found the summary judgment was properly granted. 

Plaintiff brought an action against defendants for personal injury.  The plaintiff appealed from the grant of a summary judgment in favor of defendants.  The facts of the case involved a plaintiff who was riding the down escalator to the first floor of defendant’s department store when the escalator stopped abruptly due to a power outage that was apparently caused by a nearby traffic accident.  The trial court granted the motion for summary judgment finding the plaintiff did not show a triable issue of fact that defendants breached any duty of care or that the escalator was defective.

In opposition to the motion of summary judgment, the plaintiff produced an expert who provided a declaration in support of its opposition.  However, the expert had not seen, ridden or inspected the escalator, relying only on his own reasoning that if an escalator stopped abruptly it must have been defectively designed or maintained.  The court found that the expert’s opinion was insufficient to create a material dispute, having not stated any facts to support his opinion.  In contrast, the defendant showed that the escalator showed it was state of the art when manufactured and had the most comprehensive maintenance available, having been inspected every 24 days.  Thus, the Appeals Court found the summary judgment was properly granted.

(Arbitration) Signatory plaintiff cannot avoid arbitrating claims against nonsignatory defendant where claims were intimately intertwined with agreement containing arbitration clause

(Arbitration) Signatory plaintiff cannot avoid arbitrating claims against nonsignatory defendant where claims were intimately intertwined with agreement containing arbitration clause. Molecular Analytical Systems v. Ciphergen Biosystems Inc., (No. H032845 California Courts of Appeal, Second Appellate District July 9, 2010).

In this matter, an Appeals Court found that a nonsignatory to an arbitration agreement is not bound to it and may not invoke it; however, a nonsignatory may invoke an arbitration clause to compel a signatory plaintiff to arbitrate under the doctrine of equitable estoppel, if the claims against the nonsignatory are “intimately founded and intertwined with the underlying contract obligations”.  In this case, the plaintiff’s claims against a nonsignatory defendant were each subject to arbitration because they derived from, relied on, or were intimately intertwined with the contract that had the arbitration agreement.  Thus, the plaintiff could not avoid arbitrating its claims against the defendant.

(Independent Contractor) Trial court improperly instructs jury that right of control is dispositive in determining whether worker is City’s employee or independent contractor

(Independent Contractor) Trial court improperly instructs jury that right of control is dispositive in determining whether worker is City’s employee or independent contractor. Barry A. Bowman v. Tommie Wyatt Jr., et al., No. B207468 (Los Angeles County California Courts of Appeal, Second Appellate District, Division Four July 1, 2010).

Plaintiff brought this action after suffering devastating injuries when his motorcycle collided with a truck owned and operated by the defendant.  The collision occurred shortly after defendant delivered a load of asphalt to a work site of defendant city, with whom defendant was under contract.  The jury found that the defendant driver caused the accident by negligently making a left turn in front of plaintiff’s motorcycle.  The jury further found that the defendant driver was a city employee and that the city breached a duty to inspect and maintain the dump trucks brakes, that the truck was controlled by the city and was in a dangerous condition and that the work in which the plaintiff was engaged in at the time at the accident involved a special risk of harm.  The city appealed contending that the jury was misinstructed on several critical issues including the factors it was to consider in determining if the defendant driver was an employee or independent contractor.  The Appeals Court reversed and agreed with the city’s contention that the trial court erred by misinstructing the jury about the factors relevant to determining whether the driver was an employee or an independent contractor, allowing the jury to find that the work in which the driver was engaged involved a peculiar risk of harm and instructing the jury that the city was the motor carrier as a matter of law.  In so holding, the Appeals Court found that California Approved Civil Instruction  (CACI) No. 3704 does not set forth the correct statement of the law.  The court stated that the jury instruction did not provide the jury with an appropriate instruction to consider a multifactor test when determining whether a worker is engaged as an employee or independent contractor.  Those factors include whether the workers engaged in a distinct occupation or business, the skill required in the particular occupation, whether the employer or the worker supplies the tools in place of work, length of time for which services are to be performed among others. 

Hence, the “control test” is identified within CACI No. 3704 was found not to correctly instruct the jury under the facts of this case.  This jury instruction should be now viewed with circumspection with regard to its application of future cases based upon this Appeals Court decision.

(Medi-Cal) After Dept. withholds Medi-Cal payments on suspicion of wrongdoing, it is not required to pay interest when payments are disbursed to provider

(Medi-Cal) After Dept. withholds Medi-Cal payments on suspicion of wrongdoing, it is not required to pay interest when payments are disbursed to provider. Chang Ho Yoo et al., v. Sandra Shewry, Director of the State Department of Health Care Services., No. B213759 California Courts of Appeal, Second Appellate District, Division Seven (June 29, 2010).

The question presented involves where the California Department of Health Care Services  (DHCS) suspects fraud and willful misrepresentation by a  Medi-Cal provider and the DHCS withholds Medi-Cal payments from the provider pursuant to the Welfare and Institutions Code section 104107.11, is the DHCS required to pay interest on the amount of withheld payments that are later disbursed to the provider after the DHCS has finished its investigation, where the DHCS delays unreasonably and making the disbursement.  In granting the petition, the Appeals Court reversed the trial court which concluded that payment of interest was compelled by Civil Code section 3287.  The Appeals Court found that interest on Medi-Cal payments that were inappropriately withheld and that Civil Code section 3287 was inapplicable in the case.    It  reversed the trial court’s order.  The court stated that section 3287 is only triggered when a person is entitled to recover damages, which occurs when a person suffers detriment from the unlawful act or omission of another.  The Appeals Court found that withholding payments neither requires nor permits the payment of interest on withheld Medi-Cal payments because if the Legislature intended DHCS to pay interest on withheld payments, it would have stated so.

California Supreme Court holds private plaintiffs seeking restitution under the Unfair Competition Law may not treble their recovery under Civil Code section 3345

In Clark v. Superior Court (National Western Life Ins. Co.), a group of senior citizens sued an insurance company under California’s unfair competition law (Bus. & Prof. Code, § 17200 et seq.), alleging deceptive sales of high-commission annuities with large “early surrender” penalties, and seeking restitution to the plaintiff class of money spent to purchase the annuities.  Plaintiffs also sought trebling of the restitution award under Civic Code section 3345, which allows the trier of fact to award senior citizens and disabled persons up to three times an amount imposed by statute as a “fine, or a civil penalty or other penalty, or any other remedy the purpose of effect of which is to punish or deter.”

The Court of Appeal held that the plaintiffs were entitled to seek a trebling of the restitution award under section 3345 because that award had a deterrent effect.  The Supreme Court reversed, holding that: “Because restitution in a private action brought under the unfair competition law is measured by what was taken from the plaintiff, that remedy is not a penalty and hence does not fall within the trebled recovery provision of Civil Code section 3345, subdivision (b).”

Needless IV Connectors May Be Causing Hospital Infections, FDA Warns

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Published: August 12th, 2010Federal regulators are warning that positive displacement needleless connectors used for intravenous access may increase the risk of hospital-acquired infections and death, leading to a request that manufacturers gather additional information on the potential problem. The FDA issued an initial communication on August 11, warning that several peer-reviewed clinical studies reported an increase in bloodstream infections once hospitals began using needle-free IV connectors that use positive displacement. The studies found that switching to other needleless connectors resulted in the infection rates dropping again. At least three deaths may be associated with positive displacement needleless connector bloodstream infections.Positive displacement needleless connectors allow multiple IV sets and catheter hubs to deliver fluids and drugs into a patient without the risk of needle stick injuries to hospital staff or patients. They are also frequently referred to as luer activated valves or positive pressure systems.In a letter to infection control practitioners, the FDA also announced it will require nine companies to conduct postmarket surveillance studies on positive displacement connectors to see whether they are indeed associated with higher hospital infection rates.The postmarket surveillance studies seek to answer two questions: What is the rate of bloodstream infections when that company’s specific positive displacement needleless connectors are used, and how does that rate compare to the rates of other needleless coneectors? And are there certain patient demographics, illnesses or uses that appear to have a stronger correlation with positive displacement needleless connector bloodstream infections than others?The FDA hopes the information will allow the agency to make a more sound and fact-based recommendation on the use of the needleless systems.Concern over the systems is nothing new. In October 2008, the Society for Healthcare Epidemiologists of America and the Infectious Disease Society of America recommended against the use of positive displacement needleless connectors unless there was first a thorough assessment of the risk and benefits. The recommendations were included in a report on useful strategies in preventing bloodstream hospital infections.