Verdicts

The mother brought suit against Dr. McIntyre, her own doctor and the hospital. Dr. McIntyre moved for summary judgment, raising the Good Samaritan statute as an affirmative defense. The Good Samaritan statute provides an affirmative defense against ordinary negligence for persons who administer emergency care, under specified circumstances. Texas Civil Practice and Remedies Code ' 74.001. However, the statute does not protect from liability people whose services were provided “for or in expectation of remuneration.” The trial court granted the doctor's motion for summary judgment, but a divided court of appeals reversed, holding that the doctor failed to prove conclusively that he was entitled to protection from liability under the statute. Specifically, the court of appeals held that the doctor failed to prove that he was not legally entitled to receive payment for the emergency services he rendered.

On further appeal to the Supreme Court of Texas, the question as framed by the court was, “What must a person prove to establish that he or she did not act 'for or in expectation of remuneration' within the meaning of this exception to immunity from liability in the Good Samaritan statute?” On this issue of first impression, the court held that in order to receive such immunity, a person must show that he would not ordinarily receive or be entitled to receive payment under the circumstances in which the emergency care was provided. It would not be enough for him to waive a payment that he would ordinarily be entitled to. At the same time, however, the court disagreed with the court of appeals' proposition that a person must prove that he was not legally entitled to receive payment in order to receive protection under the statute as this would go against the legislative history and plain meaning of the statute and would discourage medical personnel from ever coming to the aid of victims during emergencies.

In the present case, Dr. McIntyre provided affidavit and deposition testimony to the facts that, among other things, he did not bill for his services, did not believe that under the circumstances he could ethically bill for the services, and that he was not on an emergency response team or on call for the hospital or plaintiff's doctor. Plaintiff did not object to any of his evidence; therefore, under Texas law, Dr. McIntyre's uncontroverted testimony established as fact that he would neither ordinarily charge for nor be entitled to charge for his services under the circumstances. As such, he was entitled to summary judgment. The judgment was therefore reversed and the case remanded to the court of appeals.

No Cause of Action for Negligent Infliction of Emotional Distress

The Wisconsin Supreme Court has held that in order to sustain a cause of action for negligent infliction of emotional distress in a medical malpractice case, the plaintiffs must perceive the event that gives rise to the malpractice claim, not just its results. Finnegan v. Wisconsin Patients Compensation Fund, No. 01-2911, 2003 WI 98; 2003 Wisc. LEXIS 468, 7/8/03.

In this case involving a baby who died from a bacterial infection, the Wisconsin Court of Appeals certified the following question to the state's Supreme Court: 1) does Chapter 655 of the Wisconsin Statutes (1999-2000), which exclusively governs medical malpractice claims in Wisconsin, permit a bystander claim for negligent infliction of emotional distress in a medical malpractice lawsuit; and 2) if such a claim is statutorily permitted, does a misdiagnosis leading to the patient's eventual death give rise to a claim for negligent infliction of emotional distress under Bowen v. Lumbermens Mut. Cas. Co., 183 Wis. 2d 627, 517 N.W.2d 432 (1994), where the claimant witnessed the patient's physical deterioration but did not witness the injury-producing event or its immediate aftermath? The defendants had moved for summary judgment, which the Circuit Court denied.

The child had run a low-grade fever for a few days, prompting his parents to take him to see his pediatrician at the Manitowoc Clinic. The pediatrician ordered a complete blood count (CBC) and blood culture. The results were reported to the on-call physician that night, but she did not inform the child's pediatrician or parents. When the child was returned to the doctor's office the following morning, his pediatrician noted that the child's blood culture showed bacteria. Although the child was immediately evacuated by helicopter to another hospital, it was too late to save him. He died the following day.

The parents brought an action for wrongful death and for negligent infliction of emotional distress under Bowen, arising out of the malpractice. All the claims were settled except for the claim of negligent infliction of emotional distress against one defendant. The state's common law before Bowen required that for a finding of negligent infliction of emotional distress, plaintiffs must: 1) be in the “zone of danger” of the underlying accident or injury; 2) have feared for their own safety; and 3) have suffered physical injury in tandem with the emotional distress. Bowen eliminated these “rigid doctrinal limitations” on tort liability for bystander claims for negligent infliction of emotional distress. Instead, the three prerequisites to a Bowen bystander claim for negligent infliction of emotional distress are: 1) the injury suffered by the victim must have been fatal or severe; 2) the claimant must be related to the victim as a spouse, parent, child, grandparent, grandchild, or sibling; and 3) the claimant must have witnessed the incident causing death or serious injury or the gruesome aftermath of such an event minutes after it occured.

In the present case, the plaintiffs' bystander claim was premised on having witnessed the physical deterioration and death of their son as a result of an act of medical malpractice. The Wisconsin Supreme Court found, however, that the relevant event in element three of a Bowen analysis was the misdiagnosis itself, not its effects. As the parents did not establish that they had perceived the failure to make a proper medical diagnosis, the court found that summary judgment should have been granted.

Frye Analysis Misapplied

The trial court misapplied a Frye analysis to plaintiff's expert's testimony, as its substance included no novel theories. Haney v. Pagnanelli, No. 2458 EDA 2002, 2003 PA Super 261, 2003 Pa. Super. LEXIS 2073 (7/14/03)

On May 10, 1995, appellee/defendant doctor performed a decompressive lumbar laminectomy at the L4-L5 nerve root level on appellant/plaintiff, Betty Haney, in an attempt to relieve her back and leg pain. Appellant had undergone a similar procedure in 1991, which resulted in temporary relief. In his operative report, defendant noted that he tore plaintiff's dural membrane, which covers additional nerves and protects the spinal fluid, but that he repaired the tear without incident. Soon thereafter, plaintiff reported experiencing incontinence and lack of vaginal sensation.

On May 1, 1997, plaintiff filed this medical malpractice action in the County Court of Common Pleas contending that defendant negligently caused permanent damage to her sacral nerves at levels S2, S3 and S4 during the surgery. As plaintiff's expert Dr. Donald C. Austin, a neurological surgeon, explained, these nerves are “in the same area as the L5 nerve root, and they're encased within the spinal dura compartment and bathed by the spinal fluid.” Defendant filed a Frye Motion (see, Frye v. U.S., 54 U.S. App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923)) seeking preclusion of Dr. Austin's testimony. The trial court granted defendant's Frye Motion as well as his motion for summary judgment. This appeal followed.

On appeal, plaintiff contended that the trial court abused its discretion by applying a Frye analysis to her expert as his opinions did not rely on any novel scientific theories that produce new evidence. The court here noted that in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (Pa. 1977), the Pennsylvania Supreme Court adopted the Frye rule, holding that the “admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Id. at 1281. In Topa, the court concluded that Frye precluded expert testimony concerning sound spectograph and voiceprint analysis. (Although the U.S. Supreme Court renounced the Frye rule in its 1993 decision, Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), holding that Frye had been superceded by the Federal Rules of Evidence, the Pennsylvania Supreme Court has not abandoned the Frye rule in favor of a Daubert analysis.)

In the present case, Dr. Austin's expert testimony did not involve novel scientific evidence. The substance of his opinion was as follows: Defendant admitted that during surgery he entered the dural compartment where the affected nerves are located; there was no other demonstrable cause for plaintiff's nerve damage, which manifested itself for the first time after the surgery; therefore, defendant must have injured plaintiff's nerves during the surgery. Further, Dr. Austin opined that this type of complication would not occur absent negligence. This testimony, the court found, did not involve “novel scientific evidence” and therefore did not implicate a Frye analysis. Accordingly, because the trial court misapplied the Frye rule and erroneously precluded the testimony of plaintiff's expert at trial, the order was reversed and the case remanded for further proceedings.

Doctor Proves Good Samaritan Law Applies to Him

A doctor was entitled to summary dismissal of a case against him for malpractice for actions that resulted in a birth injury because he proved that the Texas Good Samaritan statute applied to absolve him of liability. McIntyre v. Ramirez, Texas Lawyer, 7/7/03, Vol. 19; No. 18; Pg. 415, Case No. 01-1203, 6/26/03.

This medical malpractice action arose from the emergency delivery of an infant. Defendant Dr. Douglas McIntyre was not the mother's obstetrician, was not on call for her regular doctor and had never seen the mother as a patient before the day of delivery. The patient's own doctor was not present when the baby, which was large for its gestational age, was ready to be delivered. Nurses paged for a “Dr. Stork,” a code method of informing those in the hospital that a delivery is taking place without a doctor present and that a doctor is immediately needed. Dr. McIntyre responded to the page. When he arrived, there were indications of shoulder dystocia, a condition in which the infant's shoulder becomes lodged against the mother's pelvic bone. After several attempts to deliver the child, Dr. McIntyre reached inside the mother, moved the baby's arm to a new position, and delivered him. The baby was born with injuries to the soft tissues and nerves of his right upper extremity, neck and shoulder, resulting in permanent neurological impairment and partial paralysis.

The mother brought suit against Dr. McIntyre, her own doctor and the hospital. Dr. McIntyre moved for summary judgment, raising the Good Samaritan statute as an affirmative defense. The Good Samaritan statute provides an affirmative defense against ordinary negligence for persons who administer emergency care, under specified circumstances. Texas Civil Practice and Remedies Code ' 74.001. However, the statute does not protect from liability people whose services were provided “for or in expectation of remuneration.” The trial court granted the doctor's motion for summary judgment, but a divided court of appeals reversed, holding that the doctor failed to prove conclusively that he was entitled to protection from liability under the statute. Specifically, the court of appeals held that the doctor failed to prove that he was not legally entitled to receive payment for the emergency services he rendered.

On further appeal to the Supreme Court of Texas, the question as framed by the court was, “What must a person prove to establish that he or she did not act 'for or in expectation of remuneration' within the meaning of this exception to immunity from liability in the Good Samaritan statute?” On this issue of first impression, the court held that in order to receive such immunity, a person must show that he would not ordinarily receive or be entitled to receive payment under the circumstances in which the emergency care was provided. It would not be enough for him to waive a payment that he would ordinarily be entitled to. At the same time, however, the court disagreed with the court of appeals' proposition that a person must prove that he was not legally entitled to receive payment in order to receive protection under the statute as this would go against the legislative history and plain meaning of the statute and would discourage medical personnel from ever coming to the aid of victims during emergencies.

In the present case, Dr. McIntyre provided affidavit and deposition testimony to the facts that, among other things, he did not bill for his services, did not believe that under the circumstances he could ethically bill for the services, and that he was not on an emergency response team or on call for the hospital or plaintiff's doctor. Plaintiff did not object to any of his evidence; therefore, under Texas law, Dr. McIntyre's uncontroverted testimony established as fact that he would neither ordinarily charge for nor be entitled to charge for his services under the circumstances. As such, he was entitled to summary judgment. The judgment was therefore reversed and the case remanded to the court of appeals.

No Cause of Action for Negligent Infliction of Emotional Distress

The Wisconsin Supreme Court has held that in order to sustain a cause of action for negligent infliction of emotional distress in a medical malpractice case, the plaintiffs must perceive the event that gives rise to the malpractice claim, not just its results. Finnegan v. Wisconsin Patients Compensation Fund, No. 01-2911, 2003 WI 98; 2003 Wisc. LEXIS 468, 7/8/03.

In this case involving a baby who died from a bacterial infection, the Wisconsin Court of Appeals certified the following question to the state's Supreme Court: 1) does Chapter 655 of the Wisconsin Statutes (1999-2000), which exclusively governs medical malpractice claims in Wisconsin, permit a bystander claim for negligent infliction of emotional distress in a medical malpractice lawsuit; and 2) if such a claim is statutorily permitted, does a misdiagnosis leading to the patient's eventual death give rise to a claim for negligent infliction of emotional distress under Bowen v. Lumbermens Mut. Cas. Co. , 183 Wis. 2d 627, 517 N.W.2d 432 (1994), where the claimant witnessed the patient's physical deterioration but did not witness the injury-producing event or its immediate aftermath? The defendants had moved for summary judgment, which the Circuit Court denied.

The child had run a low-grade fever for a few days, prompting his parents to take him to see his pediatrician at the Manitowoc Clinic. The pediatrician ordered a complete blood count (CBC) and blood culture. The results were reported to the on-call physician that night, but she did not inform the child's pediatrician or parents. When the child was returned to the doctor's office the following morning, his pediatrician noted that the child's blood culture showed bacteria. Although the child was immediately evacuated by helicopter to another hospital, it was too late to save him. He died the following day.

The parents brought an action for wrongful death and for negligent infliction of emotional distress under Bowen, arising out of the malpractice. All the claims were settled except for the claim of negligent infliction of emotional distress against one defendant. The state's common law before Bowen required that for a finding of negligent infliction of emotional distress, plaintiffs must: 1) be in the “zone of danger” of the underlying accident or injury; 2) have feared for their own safety; and 3) have suffered physical injury in tandem with the emotional distress. Bowen eliminated these “rigid doctrinal limitations” on tort liability for bystander claims for negligent infliction of emotional distress. Instead, the three prerequisites to a Bowen bystander claim for negligent infliction of emotional distress are: 1) the injury suffered by the victim must have been fatal or severe; 2) the claimant must be related to the victim as a spouse, parent, child, grandparent, grandchild, or sibling; and 3) the claimant must have witnessed the incident causing death or serious injury or the gruesome aftermath of such an event minutes after it occured.

In the present case, the plaintiffs' bystander claim was premised on having witnessed the physical deterioration and death of their son as a result of an act of medical malpractice. The Wisconsin Supreme Court found, however, that the relevant event in element three of a Bowen analysis was the misdiagnosis itself, not its effects. As the parents did not establish that they had perceived the failure to make a proper medical diagnosis, the court found that summary judgment should have been granted.

Frye Analysis Misapplied

The trial court misapplied a Frye analysis to plaintiff's expert's testimony, as its substance included no novel theories. Haney v. Pagnanelli , No. 2458 EDA 2002, 2003 PA Super 261, 2003 Pa. Super. LEXIS 2073 (7/14/03)

On May 10, 1995, appellee/defendant doctor performed a decompressive lumbar laminectomy at the L4-L5 nerve root level on appellant/plaintiff, Betty Haney, in an attempt to relieve her back and leg pain. Appellant had undergone a similar procedure in 1991, which resulted in temporary relief. In his operative report, defendant noted that he tore plaintiff's dural membrane, which covers additional nerves and protects the spinal fluid, but that he repaired the tear without incident. Soon thereafter, plaintiff reported experiencing incontinence and lack of vaginal sensation.

On May 1, 1997, plaintiff filed this medical malpractice action in the County Court of Common Pleas contending that defendant negligently caused permanent damage to her sacral nerves at levels S2, S3 and S4 during the surgery. As plaintiff's expert Dr. Donald C. Austin, a neurological surgeon, explained, these nerves are “in the same area as the L5 nerve root, and they're encased within the spinal dura compartment and bathed by the spinal fluid.” Defendant filed a Frye Motion ( see, Frye v. U.S. , 54 U.S. App. D.C. 46, 293 F. 1013 (D.C. Cir. 1923)) seeking preclusion of Dr. Austin's testimony. The trial court granted defendant's Frye Motion as well as his motion for summary judgment. This appeal followed.

On appeal, plaintiff contended that the trial court abused its discretion by applying a Frye analysis to her expert as his opinions did not rely on any novel scientific theories that produce new evidence. The court here noted that in Commonwealth v. Topa , 471 Pa. 223, 369 A.2d 1277 (Pa. 1977), the Pennsylvania Supreme Court adopted the Frye rule, holding that the “admissibility of the evidence depends upon the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Id. at 1281. In Topa, the court concluded that Frye precluded expert testimony concerning sound spectograph and voiceprint analysis. (Although the U.S. Supreme Court renounced the Frye rule in its 1993 decision, Daubert v. Merrell Dow Pharmaceuticals Inc. , 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993), holding that Frye had been superceded by the Federal Rules of Evidence, the Pennsylvania Supreme Court has not abandoned the Frye rule in favor of a Daubert analysis.)

In the present case, Dr. Austin's expert testimony did not involve novel scientific evidence. The substance of his opinion was as follows: Defendant admitted that during surgery he entered the dural compartment where the affected nerves are located; there was no other demonstrable cause for plaintiff's nerve damage, which manifested itself for the first time after the surgery; therefore, defendant must have injured plaintiff's nerves during the surgery. Further, Dr. Austin opined that this type of complication would not occur absent negligence. This testimony, the court found, did not involve “novel scientific evidence” and therefore did not implicate a Frye analysis. Accordingly, because the trial court misapplied the Frye rule and erroneously precluded the testimony of plaintiff's expert at trial, the order was reversed and the case remanded for further proceedings.