Verdicts

Texas Case Redux

In August, we synopsized a Texas case in which we reported the decision of the court of appeals but omitted the ultimate holding by the Supreme Court of Texas. Following is the text of that report as it should have appeared.

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.

Statute of Limitations Bars Claims

The plaintiff patient and her husband lost their appeal from a Superior Court, Middlesex County, MA, judgment of dismissal following allowance of the defendant surgeon's summary judgment motion based on the statute of limitations. Darviris v. Petros, 2003 Mass. App. LEXIS 974, No. 00-P-1678 (App. Ct. of Mass. 9/18/03).

After plaintiff consulted the defendant for rectal bleeding and pain, the defendant told her that the cause was an anal fissure, and recommended surgery. Six days before surgery, the plaintiff went for a preoperative evaluation at the hospital where the surgery was to be performed. While there, she signed an eight-section form captioned “A Consent to an Operation.” The plaintiff signed the form without reading it.

The form authorized a “fissurectomy” under the direction of the defendant and provided that the nature and purpose of the operation and the possible alternative methods of treatment had been explained to her by a Dr. Helo, whom plaintiff later claimed not to have met until the morning of surgery. The fourth section of the form was a consent “to the performance of operations, procedures, and treatment in addition to or different from those [then] contemplated … which the above-named doctor … may … consider necessary or advisable.”

In the recovery room, the defendant told the plaintiff that he had performed a hemorrhoidectomy rather than a fissurectomy. The plaintiff was very upset. She told the defendant she never would have agreed to that procedure because her godfather had had a very bad experience with it. After the surgery the plaintiff was in terrible pain, which she attributed to the hemorrhoidectomy. She experienced pain for weeks, leading her to require a second surgery and further treatment. According to the docket sheet, the plaintiff filed her complaint against the defendant on March 8, 1999, 3 years after the second surgery. The judge ruled that five of the claims were barred by the 3-year statute of limitations period set out in Mass. G. L. c. 260, ' 4. Plaintiff appealed.

The appellate court found that plaintiff's complaint for failure to obtain informed consent, assuming materiality, accrued almost immediately. The plaintiff knew that she had been subjected to surgery she did not authorize and she insisted immediately following the first surgery that she would not have authorized it because of her godfather's bad experience. She therefore knew, or should have known, that she was not informed of the potential complications of the surgery. Moreover, according to her deposition, she consistently ascribed her suffering to the surgery. Therefore, the judge did not err in allowing the defendant's motion for summary judgment on these claims.

Florida Presuit Rules Not Inflexible

Although plaintiff failed to respond to a presuit discovery request within the statutorily mandated 90-day period, the Circuit Court for the Fifteenth Judical Circuit, Palm Beach, FL, erred in dismissing the suit, as she complied with the discovery request within the 2-year limitation period for filing a malpractice suit. Vincent v. Kaufman, Case No. 4D02-777, 2003 Fla. App. LEXIS 13987; 28 Fla. L. Weekly D 2186 (Ct. of App. of Florida, 4th Dist., 9/17/03).

On Feb. 2, 2001, plaintiff gave notice of her intent to file a medical malpractice action against her doctor. On Feb.14, 2001, Mary Jo Davi, the medical malpractice insurer's claims adjuster, sent plaintiff a letter indicating receipt of the notice of intent and requesting certain presuit discovery in order to evaluate her claim. On May 2, 2001, Davi sent plaintiff's counsel, a letter rejecting the claim. Davi stated that plaintiff had not complied with the disclosure requirements during the presuit period. Davi further stated that the matter was investigated and reviewed by an expert who rendered an opinion of no negligence. On May 7, 2001, plaintiff hand-delivered her response to the presuit discovery requests, including the medical records requested. On June 27, 2001, plaintiff filed her medical malpractice action.

The trial court dismissed plaintiff's action based on her failure to comply with Fla. Stat. Ch. 766.205 (2001), which provides that no medical malpractice action may be filed for a period of 90 days after notice is mailed to any prospective defendant and that during that 90-day period, the potential plaintiff must comply with any presuit discovery request made in order for the prospective defendant's insurer to conduct a review to determine the defendant's liability.

The appellate court reversed, basing its decision on Kukral v. Mekras, 679 So.2d 278 (Fla. 1996). In Kukral, the plaintiffs were in partial, but not full compliance with presuit procedures. The trial court dismissed plaintiffs' claim, the effect of which was to permanently bar plaintiffs' claim because the statute of limitations had run. The Third District affirmed; however, the Florida Supreme Court reversed, holding that, although the presuit screening statute must be enforced, a litigant's constitutional right of access to the courts must also be preserved. The Kukral court specifically rejected the lower court's holding, finding that failure to comply with the presuit requirements of the statute is not necessarily fatal to a plaintiff's claim so long as compliance is accomplished within the two-year limitations period provided for filing suit.

In the present case, plaintiff complied with the presuit discovery request 95 days after she served her notice of intent. While this was outside the 90-day window of the statute, it was still within the 2-year limitations period for filing suit, and she did file her suit within that period. In addition, the doctor was not prejudiced by plaintiff's delay. Thus the court reversed and remanded with instructions to reinstate plaintiff's complaint.

Texas Case Redux

In August, we synopsized a Texas case in which we reported the decision of the court of appeals but omitted the ultimate holding by the Supreme Court of Texas. Following is the text of that report as it should have appeared.

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.

Statute of Limitations Bars Claims

The plaintiff patient and her husband lost their appeal from a Superior Court, Middlesex County, MA, judgment of dismissal following allowance of the defendant surgeon's summary judgment motion based on the statute of limitations. Darviris v. Petros, 2003 Mass. App. LEXIS 974, No. 00-P-1678 (App. Ct. of Mass. 9/18/03).

After plaintiff consulted the defendant for rectal bleeding and pain, the defendant told her that the cause was an anal fissure, and recommended surgery. Six days before surgery, the plaintiff went for a preoperative evaluation at the hospital where the surgery was to be performed. While there, she signed an eight-section form captioned “A Consent to an Operation.” The plaintiff signed the form without reading it.

The form authorized a “fissurectomy” under the direction of the defendant and provided that the nature and purpose of the operation and the possible alternative methods of treatment had been explained to her by a Dr. Helo, whom plaintiff later claimed not to have met until the morning of surgery. The fourth section of the form was a consent “to the performance of operations, procedures, and treatment in addition to or different from those [then] contemplated … which the above-named doctor … may … consider necessary or advisable.”

In the recovery room, the defendant told the plaintiff that he had performed a hemorrhoidectomy rather than a fissurectomy. The plaintiff was very upset. She told the defendant she never would have agreed to that procedure because her godfather had had a very bad experience with it. After the surgery the plaintiff was in terrible pain, which she attributed to the hemorrhoidectomy. She experienced pain for weeks, leading her to require a second surgery and further treatment. According to the docket sheet, the plaintiff filed her complaint against the defendant on March 8, 1999, 3 years after the second surgery. The judge ruled that five of the claims were barred by the 3-year statute of limitations period set out in Mass. G. L. c. 260, ' 4. Plaintiff appealed.

The appellate court found that plaintiff's complaint for failure to obtain informed consent, assuming materiality, accrued almost immediately. The plaintiff knew that she had been subjected to surgery she did not authorize and she insisted immediately following the first surgery that she would not have authorized it because of her godfather's bad experience. She therefore knew, or should have known, that she was not informed of the potential complications of the surgery. Moreover, according to her deposition, she consistently ascribed her suffering to the surgery. Therefore, the judge did not err in allowing the defendant's motion for summary judgment on these claims.

Florida Presuit Rules Not Inflexible

Although plaintiff failed to respond to a presuit discovery request within the statutorily mandated 90-day period, the Circuit Court for the Fifteenth Judical Circuit, Palm Beach, FL, erred in dismissing the suit, as she complied with the discovery request within the 2-year limitation period for filing a malpractice suit. Vincent v. Kaufman, Case No. 4D02-777, 2003 Fla. App. LEXIS 13987; 28 Fla. L. Weekly D 2186 (Ct. of App. of Florida, 4th Dist., 9/17/03).

On Feb. 2, 2001, plaintiff gave notice of her intent to file a medical malpractice action against her doctor. On Feb.14, 2001, Mary Jo Davi, the medical malpractice insurer's claims adjuster, sent plaintiff a letter indicating receipt of the notice of intent and requesting certain presuit discovery in order to evaluate her claim. On May 2, 2001, Davi sent plaintiff's counsel, a letter rejecting the claim. Davi stated that plaintiff had not complied with the disclosure requirements during the presuit period. Davi further stated that the matter was investigated and reviewed by an expert who rendered an opinion of no negligence. On May 7, 2001, plaintiff hand-delivered her response to the presuit discovery requests, including the medical records requested. On June 27, 2001, plaintiff filed her medical malpractice action.

The trial court dismissed plaintiff's action based on her failure to comply with Fla. Stat. Ch. 766.205 (2001), which provides that no medical malpractice action may be filed for a period of 90 days after notice is mailed to any prospective defendant and that during that 90-day period, the potential plaintiff must comply with any presuit discovery request made in order for the prospective defendant's insurer to conduct a review to determine the defendant's liability.

The appellate court reversed, basing its decision on Kukral v. Mekras , 679 So.2d 278 (Fla. 1996). In Kukral, the plaintiffs were in partial, but not full compliance with presuit procedures. The trial court dismissed plaintiffs' claim, the effect of which was to permanently bar plaintiffs' claim because the statute of limitations had run. The Third District affirmed; however, the Florida Supreme Court reversed, holding that, although the presuit screening statute must be enforced, a litigant's constitutional right of access to the courts must also be preserved. The Kukral court specifically rejected the lower court's holding, finding that failure to comply with the presuit requirements of the statute is not necessarily fatal to a plaintiff's claim so long as compliance is accomplished within the two-year limitations period provided for filing suit.

In the present case, plaintiff complied with the presuit discovery request 95 days after she served her notice of intent. While this was outside the 90-day window of the statute, it was still within the 2-year limitations period for filing suit, and she did file her suit within that period. In addition, the doctor was not prejudiced by plaintiff's delay. Thus the court reversed and remanded with instructions to reinstate plaintiff's complaint.