Verdicts

Notice Requirement Not Waived by Plaintiff's Minority

The Texas legislature waived sovereign immunity from suit against a state-run hospital only if timely notice was served, and such notice requirement was not waived in this case merely because the plaintiff is a minor. Martinez v. Val Verde County Hospital District, Texas Lawyer 5/19/03, Vol. 19; No. 11; Pg. 247, 4th Ct. of App., San Antonio, TX.

Parents of a minor child instituted a suit for medical malpractice on behalf of their daughter against Val Verde County Hospital District, a Texas state institution. Their suit was brought pursuant to the Texas Tort Claims Act (TTCA), which legislatively waives state sovereign immunity from suit provided a notice of claim is provided to the state within six months of the injury. Plaintiffs here provided their notice to the hospital 7 months after the alleged injury, but they argued that the statute of limitations should not apply where, as here, the injured party is a minor. The trial court granted the hospital's plea to the jurisdiction and severed the claim against it from those against the private-sector defendants. The appellate court affirmed, but on different grounds. It held that the six-month notice requirement falls under immunity from liability, and is an affirmative defense, so complaint of failure comply with this 6-month notice requirement should have been brought as a motion to dismiss. The court held, however, that the TTCA provides for waiver of sovereign immunity only under certain circumstances, and it does not contain any provision tolling the notice period for minors. The court therefore held that until the legislature provides for such a provision in the TTCA, the court would not create the common-law rule requested by appellants. Consequently, the injured child's 6-month notice requirement was not tolled due to her minority.

Loss-of-Consortium Claim Transferred by Divorce Settlement

The trial court was correct in granting an exception of no right of action dismissing Otis Wiley as a plaintiff in a medical malpractice action arising from his ex-wife's reaction to the drug Anzemet, administered during surgery, after finding that Wiley transferred all of his interest in that suit, including his loss of consortium claim, to his former spouse in their community property partition. Wiley v. Rapides Regional Medical Center, No. 02-1439, 2003 La. App. LEXIS 1747, (La.App. 3 Cir, 06/12/03).

Damages for Misdiagnosis of HIV-Negative Patient Not Limited

A doctor who misreads an HIV test and tells the patient he is HIV positive can be held liable for emotional damages caused by the misdiagnosis and faulty medical advice, New Jersey's Appellate Division has ruled. Doe v. Arts, A-6437-00T1, N.J. Sup. Ct., App. Div. (6/2/03).

Plaintiff sued his doctor alleging that after he took a blood test for HIV in 1991, the doctor incorrectly and negligently informed him that he was HIV-positive when he was not, and failed to retest him even though the standard at the time was to retest patients with positive results. As a result, that patient became depressed and suffered from physical and psychological injuries, including post-traumatic stress disorder. He broke up with his girlfriend, stopped paying taxes, lost his business and could not hold down a job.

At trial, the doctor testified that he was a family physician who did not fully understand the two-part test involved and that, at the time, he told plaintiff's live-in girlfriend that plaintiff should get further testing at Robert Wood Johnson hospital. Plaintiff was not retested for HIV by any of the hospitals he went to for subsequent treatment. After he considered suicide, plaintiff began seeing a therapist, who became suspicious of the HIV diagnosis in light of his background and apparent good health. The therapist asked plaintiff to get a copy of the test results from his original physician, from which she discovered that plaintiff was not HIV-positive.

After trial, the jury found that the doctor was negligent and awarded damages in the amount of $300,000. The doctor appealed from the resulting judgment and denial of his motion for a new trial.

The appellate court affirmed, finding no error in the lower court judge's ruling that precedent found in a “fear of AIDS” decision (Williamson v. Waldman, 150 N.J. 232 (1997)), which would have limited the duration of defendant's liability to “the period after which … a reasonable and well-informed person no longer would experience continuing emotional distress,” was inapplicable in this case, as this was a case of misdiagnosis, not one based on a fear of contracting AIDS.

 

Wiley v. Rapides Regional Medical Center

A doctor who misreads an HIV test and tells the patient he is HIV positive can be held liable for emotional damages caused by the misdiagnosis and faulty medical advice, New Jersey's Appellate Division has ruled. Doe v. Arts, A-6437-00T1, N.J. Sup. Ct., App. Div. (6/2/03).

Plaintiff sued his doctor alleging that after he took a blood test for HIV in 1991, the doctor incorrectly and negligently informed him that he was HIV-positive when he was not, and failed to retest him even though the standard at the time was to retest patients with positive results. As a result, plaintiff became depressed and suffered from physical and psychological injuries, including post-traumatic stress disorder. He broke up with his girlfriend, stopped paying taxes, lost his business and could not hold down a job.

At trial, the doctor testified that he was a family physician who did not fully understand the two-part test involved and that, at the time, he told plaintiff's live-in girlfriend that plaintiff should get further testing at Robert Wood Johnson hospital. Plaintiff was not retested for HIV by any of the hospitals he went to for subsequent treatment. After he considered suicide, plaintiff began seeing a therapist, who became suspicious of the HIV diagnosis in light of plaintiff's  background and apparent good health. The therapist asked plaintiff to get a copy of the test results from his original physician, from which she discovered that he was not HIV-positive.

After trial, the jury found that the doctor was negligent and awarded damages in the amount of $300,000. The doctor appealed from the resulting judgment and denial of his motion for a new trial.

The appellate court affirmed, finding no error in the lower court judge's ruling that precedent found in a 'fear of AIDS' decision (Williamson v. Waldman, 150 N.J. 232 (1997)), which would have limited the duration of defendant's liability to 'the period after which … a reasonable and well-informed person no longer would experience continuing emotional distress,' was inapplicable in this case, as this was a case of misdiagnosis, not one based on a fear of contracting AIDS.

Notice Requirement Not Waived by Plaintiff's Minority

The Texas legislature waived sovereign immunity from suit against a state-run hospital only if timely notice was served, and such notice requirement was not waived in this case merely because the plaintiff is a minor. Martinez v. Val Verde County Hospital District, Texas Lawyer 5/19/03, Vol. 19; No. 11; Pg. 247, 4th Ct. of App., San Antonio, TX.

Parents of a minor child instituted a suit for medical malpractice on behalf of their daughter against Val Verde County Hospital District, a Texas state institution. Their suit was brought pursuant to the Texas Tort Claims Act (TTCA), which legislatively waives state sovereign immunity from suit provided a notice of claim is provided to the state within six months of the injury. Plaintiffs here provided their notice to the hospital 7 months after the alleged injury, but they argued that the statute of limitations should not apply where, as here, the injured party is a minor. The trial court granted the hospital's plea to the jurisdiction and severed the claim against it from those against the private-sector defendants. The appellate court affirmed, but on different grounds. It held that the six-month notice requirement falls under immunity from liability, and is an affirmative defense, so complaint of failure comply with this 6-month notice requirement should have been brought as a motion to dismiss. The court held, however, that the TTCA provides for waiver of sovereign immunity only under certain circumstances, and it does not contain any provision tolling the notice period for minors. The court therefore held that until the legislature provides for such a provision in the TTCA, the court would not create the common-law rule requested by appellants. Consequently, the injured child's 6-month notice requirement was not tolled due to her minority.

Loss-of-Consortium Claim Transferred by Divorce Settlement

The trial court was correct in granting an exception of no right of action dismissing Otis Wiley as a plaintiff in a medical malpractice action arising from his ex-wife's reaction to the drug Anzemet, administered during surgery, after finding that Wiley transferred all of his interest in that suit, including his loss of consortium claim, to his former spouse in their community property partition. Wiley v. Rapides Regional Medical Center, No. 02-1439, 2003 La. App. LEXIS 1747, (La.App. 3 Cir, 06/12/03).

Damages for Misdiagnosis of HIV-Negative Patient Not Limited

A doctor who misreads an HIV test and tells the patient he is HIV positive can be held liable for emotional damages caused by the misdiagnosis and faulty medical advice, New Jersey's Appellate Division has ruled. Doe v. Arts, A-6437-00T1, N.J. Sup. Ct., App. Div. (6/2/03).

Plaintiff sued his doctor alleging that after he took a blood test for HIV in 1991, the doctor incorrectly and negligently informed him that he was HIV-positive when he was not, and failed to retest him even though the standard at the time was to retest patients with positive results. As a result, that patient became depressed and suffered from physical and psychological injuries, including post-traumatic stress disorder. He broke up with his girlfriend, stopped paying taxes, lost his business and could not hold down a job.

At trial, the doctor testified that he was a family physician who did not fully understand the two-part test involved and that, at the time, he told plaintiff's live-in girlfriend that plaintiff should get further testing at Robert Wood Johnson hospital. Plaintiff was not retested for HIV by any of the hospitals he went to for subsequent treatment. After he considered suicide, plaintiff began seeing a therapist, who became suspicious of the HIV diagnosis in light of his background and apparent good health. The therapist asked plaintiff to get a copy of the test results from his original physician, from which she discovered that plaintiff was not HIV-positive.

After trial, the jury found that the doctor was negligent and awarded damages in the amount of $300,000. The doctor appealed from the resulting judgment and denial of his motion for a new trial.

The appellate court affirmed, finding no error in the lower court judge's ruling that precedent found in a “fear of AIDS” decision ( Williamson v. Waldman , 150 N.J. 232 (1997)), which would have limited the duration of defendant's liability to “the period after which … a reasonable and well-informed person no longer would experience continuing emotional distress,” was inapplicable in this case, as this was a case of misdiagnosis, not one based on a fear of contracting AIDS.

 

Wiley v. Rapides Regional Medical Center

A doctor who misreads an HIV test and tells the patient he is HIV positive can be held liable for emotional damages caused by the misdiagnosis and faulty medical advice, New Jersey's Appellate Division has ruled. Doe v. Arts, A-6437-00T1, N.J. Sup. Ct., App. Div. (6/2/03).

Plaintiff sued his doctor alleging that after he took a blood test for HIV in 1991, the doctor incorrectly and negligently informed him that he was HIV-positive when he was not, and failed to retest him even though the standard at the time was to retest patients with positive results. As a result, plaintiff became depressed and suffered from physical and psychological injuries, including post-traumatic stress disorder. He broke up with his girlfriend, stopped paying taxes, lost his business and could not hold down a job.

At trial, the doctor testified that he was a family physician who did not fully understand the two-part test involved and that, at the time, he told plaintiff's live-in girlfriend that plaintiff should get further testing at Robert Wood Johnson hospital. Plaintiff was not retested for HIV by any of the hospitals he went to for subsequent treatment. After he considered suicide, plaintiff began seeing a therapist, who became suspicious of the HIV diagnosis in light of plaintiff's  background and apparent good health. The therapist asked plaintiff to get a copy of the test results from his original physician, from which she discovered that he was not HIV-positive.

After trial, the jury found that the doctor was negligent and awarded damages in the amount of $300,000. The doctor appealed from the resulting judgment and denial of his motion for a new trial.

The appellate court affirmed, finding no error in the lower court judge's ruling that precedent found in a 'fear of AIDS' decision ( Williamson v. Waldman , 150 N.J. 232 (1997)), which would have limited the duration of defendant's liability to 'the period after which … a reasonable and well-informed person no longer would experience continuing emotional distress,' was inapplicable in this case, as this was a case of misdiagnosis, not one based on a fear of contracting AIDS.