Verdicts

At trial, defendants conceded that the induced labor was unnecessary because the baby's weight was not excessive. Plaintiffs also showed that the method of forceps delivery used by the doctor had been discredited by the medical profession because it often left babies brain damaged.

The jury returned a verdict of $63 million — $32 million for the child's medical care and lost earning capacity, $17 million for his pain and suffering, and $14 million for his parents' loss of his consortium.

NJ Supreme Court Agrees: Affidavits of Merit Were Deficient

The New Jersey Supreme Court upheld the Appellate Division's denial of a petition for certification of a medical malpractice case because plaintiff's affidavits of merit lacked a “jurat” (a confirmation that the statements were made under oath). Tunia v. St. Francis Hospital, A-5437-01T3, 363 N.J. Super. 301 (2003).

In an effort to decrease the number of frivolous lawsuits brought against physicians, a 1995 New Jersey law (N.J.S.A. 2A:53A:27) requires that every medical malpractice suit contain an affidavit of merit, signed by a physician, attesting to the legitimacy of the plaintiff's claim. In Tunia, plaintiff submitted affidavits of merit, but the proper jurats were missing. Therefore, the trial court found that they could not be considered affidavits.

The decision not to hear this appeal was surprising in that in two earlier decisions concerning deficient affidavits of merit — Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 and Knorr v. Smeal, 178 N.J. 169 — the New Jersey Supreme Court had held that valid claims should not be dismissed for reasons of form over substance.

Florida Arbitration Panel Used Wrong Statute to Measure Damages

Florida's First District Court of Appeals erred in confirming an arbitration panel's award of damages that were reduced by the amount it would have cost decedent to live, because such reductions are not authorized by state law pertaining to the arbitration of medical malpractice claims. Barlow v. North Okaloosa Medical Center, 2004 Fla. LEXIS 185; 29 Fla. L. Weekly S 64 (2/12/04).

Plaintiff brought suit against North Okaloosa Medical Center (NOMC) for medical malpractice that resulted in her husband's death. NOMC admitted liability and the parties chose to proceed to arbitration. At the conclusion of the arbitration hearing, the panel awarded plaintiff economic damages in the amount of $102,365.50, which included $93,600 for lost services and $8765.50 for funeral expenses. However, she was awarded nothing for loss of earning capacity and lost Social Security retirement benefits, which she had also claimed as economic damages.

No award was made for lost Social Security benefits because plaintiff failed to demonstrate that the Social Security benefits would not have been spent to feed, shelter and otherwise maintain the decedent. The appellate court affirmed the award. In coming to their conclusions, both the arbitration panel and the appellate court looked for guidance to the Florida Wrongful Death Act, which maintains that only net economic damages are recoverable.

On appeal, the Florida Supreme Court noted that the state legislature expressly provided that economic damages awarded as a result of medical malpractice arbitration could be reduced in only two ways, and the arbitration panel's rationale for reducing the award here was not one of them. Therefore, because the First District erred in relying on the concept of net accumulations defined in the Wrongful Death Act, the Supreme Court quashed the appellate court's decision and remanded for further proceedings.

Court Exercises Supplemental Jurisdiction

The U.S. District Court for the Eastern District of New York found no need to dismiss state law claims concerning conduct prior to a hospital's becoming a federally funded institution, finding that an earlier flawed FTCA claim that was dismissed without prejudice put defendants on notice of the plaintiff's claims. Hutchinson v. United States, 2004 U.S. Dist. LEXIS 2418 (E.D.N.Y. 2/20/04).

In 1998, Freda Lewis filed an action for medical malpractice in New York state court against two hospitals at which she was treated for ovarian cancer, and against her doctors and other hospital employees. During the course of the litigation, on Oct. 1, 1996, one of the hospitals became a federally-funded institution, so pursuant to the Federal Tort Claims Act (FTCA), any lawsuits against that hospital or its personnel concerning conduct on or after that date had to be pursued in federal court. Therefore, the action was removed to federal district court. The FTCA claims were subsequently dismissed without prejudice because of failure to comply with all FTCA prerequisites to the filing of a lawsuit. After Lewis died, the plaintiff here (the administratrix of Lewis' estate) complied with the FTCA requirements and filed a new complaint in district court on Feb. 28, 2001, alleging negligence, medical malpractice and wrongful death as a result of defendants' conduct from May 23, 1996 to May 12, 1999. Plaintiff also filed a second complaint in New York state court, which largely mirrored the complaint filed by decedent but also included a cause of action for wrongful death. The complaint alleged that the relevant conduct extended over a period of time from May 23, 1996 to May 12, 1999.

On July 22, 2003, plaintiff amended her federal claim by expanding the dates of defendants' alleged wrongful conduct to include the events that occurred between Oct. 7, 1994 and May 22, 1996 and by requesting that the district court exercise supplemental jurisdiction over the state court claims and defendants.

Defendants didn't dispute that plaintiff's federal and state claims shared a common nucleus of operative fact, a situation normally requiring all claims to be tried in the same proceeding. They argued here, however, that “exceptional circumstances” provided “compelling reasons,” pursuant to 28 U.S.C. ' 1367(c)(4), for the district court to decline to exercise supplemental jurisdiction over those state law claims concerning treatment prior to Oct. 1, 1996, the date on which the hospital became a federal facility. The alleged “exceptional circumstance” was that plaintiff's amended complaint alleged injurious conduct between Oct. 7, 1994 and May 22, 1996 that was not alleged in the state court action, and defendants would now have difficulty investigating claims involving treatment that took place nine years previous.

The court found that supplemental jurisdiction was appropriate in this case and that defendants were on notice of plaintiff's claims through decedent's earlier (though technically flawed) filing of her FTCA claims, so dismissal of the pre-Oct. 1, 1996 allegations was not warranted.

Florida Jury Awards $63 Million for Birth Injuries

Plaintiffs in a case alleging birth injuries due to medical malpractice were awarded $63 million by a Florida court. Korzeniowski v. Eagleman, 502000CA004828XXO NAO, Palm Beach Circuit Court. The amount is not subject to the statutory caps on economic damages imposed in Florida last year because the case was filed in May 2000.

The case stemmed from events surrounding the birth in 1997 of a baby whose mother's doctor induced labor, suspecting the baby was becoming too large. The child in fact weighed only 6 pounds at birth and spent nearly 3 weeks in intensive care because he was injured by the use of forceps. Since then, he has had a total of 14 operations on his brain and spine. The child is mentally and physically disabled and requires 24-hour care.

At trial, defendants conceded that the induced labor was unnecessary because the baby's weight was not excessive. Plaintiffs also showed that the method of forceps delivery used by the doctor had been discredited by the medical profession because it often left babies brain damaged.

The jury returned a verdict of $63 million — $32 million for the child's medical care and lost earning capacity, $17 million for his pain and suffering, and $14 million for his parents' loss of his consortium.

NJ Supreme Court Agrees: Affidavits of Merit Were Deficient

The New Jersey Supreme Court upheld the Appellate Division's denial of a petition for certification of a medical malpractice case because plaintiff's affidavits of merit lacked a “jurat” (a confirmation that the statements were made under oath). Tunia v. St. Francis Hospital , A-5437-01T3, 363 N.J. Super. 301 (2003).

In an effort to decrease the number of frivolous lawsuits brought against physicians, a 1995 New Jersey law (N.J.S.A. 2A:53A:27) requires that every medical malpractice suit contain an affidavit of merit, signed by a physician, attesting to the legitimacy of the plaintiff's claim. In Tunia, plaintiff submitted affidavits of merit, but the proper jurats were missing. Therefore, the trial court found that they could not be considered affidavits.

The decision not to hear this appeal was surprising in that in two earlier decisions concerning deficient affidavits of merit — Ferreira v. Rancocas Orthopedic Assocs ., 178 N.J. 144 and Knorr v. Smeal , 178 N.J. 169 — the New Jersey Supreme Court had held that valid claims should not be dismissed for reasons of form over substance.

Florida Arbitration Panel Used Wrong Statute to Measure Damages

Florida's First District Court of Appeals erred in confirming an arbitration panel's award of damages that were reduced by the amount it would have cost decedent to live, because such reductions are not authorized by state law pertaining to the arbitration of medical malpractice claims. Barlow v. North Okaloosa Medical Center, 2004 Fla. LEXIS 185; 29 Fla. L. Weekly S 64 (2/12/04).

Plaintiff brought suit against North Okaloosa Medical Center (NOMC) for medical malpractice that resulted in her husband's death. NOMC admitted liability and the parties chose to proceed to arbitration. At the conclusion of the arbitration hearing, the panel awarded plaintiff economic damages in the amount of $102,365.50, which included $93,600 for lost services and $8765.50 for funeral expenses. However, she was awarded nothing for loss of earning capacity and lost Social Security retirement benefits, which she had also claimed as economic damages.

No award was made for lost Social Security benefits because plaintiff failed to demonstrate that the Social Security benefits would not have been spent to feed, shelter and otherwise maintain the decedent. The appellate court affirmed the award. In coming to their conclusions, both the arbitration panel and the appellate court looked for guidance to the Florida Wrongful Death Act, which maintains that only net economic damages are recoverable.

On appeal, the Florida Supreme Court noted that the state legislature expressly provided that economic damages awarded as a result of medical malpractice arbitration could be reduced in only two ways, and the arbitration panel's rationale for reducing the award here was not one of them. Therefore, because the First District erred in relying on the concept of net accumulations defined in the Wrongful Death Act, the Supreme Court quashed the appellate court's decision and remanded for further proceedings.

Court Exercises Supplemental Jurisdiction

The U.S. District Court for the Eastern District of New York found no need to dismiss state law claims concerning conduct prior to a hospital's becoming a federally funded institution, finding that an earlier flawed FTCA claim that was dismissed without prejudice put defendants on notice of the plaintiff's claims. Hutchinson v. United States, 2004 U.S. Dist. LEXIS 2418 (E.D.N.Y. 2/20/04).

In 1998, Freda Lewis filed an action for medical malpractice in New York state court against two hospitals at which she was treated for ovarian cancer, and against her doctors and other hospital employees. During the course of the litigation, on Oct. 1, 1996, one of the hospitals became a federally-funded institution, so pursuant to the Federal Tort Claims Act (FTCA), any lawsuits against that hospital or its personnel concerning conduct on or after that date had to be pursued in federal court. Therefore, the action was removed to federal district court. The FTCA claims were subsequently dismissed without prejudice because of failure to comply with all FTCA prerequisites to the filing of a lawsuit. After Lewis died, the plaintiff here (the administratrix of Lewis' estate) complied with the FTCA requirements and filed a new complaint in district court on Feb. 28, 2001, alleging negligence, medical malpractice and wrongful death as a result of defendants' conduct from May 23, 1996 to May 12, 1999. Plaintiff also filed a second complaint in New York state court, which largely mirrored the complaint filed by decedent but also included a cause of action for wrongful death. The complaint alleged that the relevant conduct extended over a period of time from May 23, 1996 to May 12, 1999.

On July 22, 2003, plaintiff amended her federal claim by expanding the dates of defendants' alleged wrongful conduct to include the events that occurred between Oct. 7, 1994 and May 22, 1996 and by requesting that the district court exercise supplemental jurisdiction over the state court claims and defendants.

Defendants didn't dispute that plaintiff's federal and state claims shared a common nucleus of operative fact, a situation normally requiring all claims to be tried in the same proceeding. They argued here, however, that “exceptional circumstances” provided “compelling reasons,” pursuant to 28 U.S.C. ' 1367(c)(4), for the district court to decline to exercise supplemental jurisdiction over those state law claims concerning treatment prior to Oct. 1, 1996, the date on which the hospital became a federal facility. The alleged “exceptional circumstance” was that plaintiff's amended complaint alleged injurious conduct between Oct. 7, 1994 and May 22, 1996 that was not alleged in the state court action, and defendants would now have difficulty investigating claims involving treatment that took place nine years previous.

The court found that supplemental jurisdiction was appropriate in this case and that defendants were on notice of plaintiff's claims through decedent's earlier (though technically flawed) filing of her FTCA claims, so dismissal of the pre-Oct. 1, 1996 allegations was not warranted.