Verdicts

On Aug. 6, 2003, plaintiffs commenced a products liability action in state court against Stryker. Stryker removed the case to the District Court for the Southern District of New York pursuant to 28 U.S.C. ' 1441(b) on Sept. 22, 2003. On Oct. 15, 2003, plaintiffs moved to join to this action the defendant doctor and hospital. They also moved for an order remanding the action to state court on the grounds that joinder of the state court medical malpractice defendants, who are New York residents, destroyed complete diversity, divesting the district court of subject matter jurisdiction. The court noted that courts in the circuit will permit joinder only if it serves the principles of fundamental fairness. In making this determination, the factors to be considered include: 1) any delay, as well as the reason for delay, in seeking joinder; 2) resulting prejudice to defendant; 3) the likelihood of multiple litigation; and 4) the plaintiff's motivation for the amendment.

Defendants argued here that plaintiffs had unduly delayed because they'd known about their potential claims against Stryker for 3 years, or at least since the doctor's deposition a year before the product liability suit was filed. But, these delays, the court held, related to the length of time plaintiffs took to bring their action against the defendants, whereas the only delay that is relevant to joinder considerations is that between the removal of the case and the plaintiffs' motion for joinder and remand. As plaintiffs moved to join the medical malpractice defendants less than 4 weeks after this case was removed, no delay — and therefore no resulting prejudice — had been shown. Defendants' concerns about delay were more appropriately interpreted as claims of improper motivation on the part of plaintiffs, but the chronology of the case did not suggest to the court that this was the reason for plaintiffs' removal motion. Any delay was occasioned by plaintiffs' need to investigate their claims. In the interest of avoiding separate actions, as well as for the convenience of witnesses, counsel and the courts, plaintiffs' motion to join the doctor and hospital was granted, and the action was remanded to state court for further proceedings.

Breast Implant Claim Not Tolled By Continuous Care

A Connecticut trial court properly dismissed a claimants' claim of medical malpractice where, despite continuous care following her operation, she knew of the basis for her claim 5 days after surgery. Rosato v. Mascardo, Case No. AC 23423, 2004 Conn. App. LEXIS 157 (Conn. App. Ct. 4/13/04).

The plaintiff sued the defendant surgeon, alleging medical malpractice and breach of contract, after the defendant used silicone breast implants during surgery on Feb. 13, 1989. Several days after the surgery, during a postoperative checkup, the plaintiff was informed silicone implants had been inserted. The defendant surgeon allegedly promised to remove the implants for free when her new surgery center was constructed. The plaintiff visited the defendant surgeon from 1989 to 1992, and the surgeon allegedly repeated the promise to remove the implants. In August 1992, the new surgical center was ready, but the surgeon said she would charge the plaintiff $4000 for additional surgery. The plaintiff sued.

The defendant surgeon filed for summary judgment, arguing the statute of limitations in C.G.S. ' 52-584 had expired and the suit, filed Nov. 19, 1992, was too late. The trial court agreed with respect to the medical malpractice count. The suit proceeded to trial before the jury on the breach-of-contract count. Before the plaintiff's case closed, the trial court directed a verdict for the defense on the breach-of-contract count.

On appeal to the state Appellate Court, the plaintiff argued the continuous treatment or continuing-course-of-conduct doctrine tolled the statute of limitations on the medical malpractice count until August 1992. The Appellate Court affirmed the trial court's decision in part. The tolling doctrines apply to the repose portion of the statute of limitations, not the discovery portion. Once the plaintiff discovered her injury, the statute began to run. The plaintiff was informed about the silicone implants five days after the surgery. The instant suit, filed in November 1992, was beyond the limitations period. However, the trial court's decision to direct a defense verdict on the breach-of-contract claim before the plaintiff's case concluded was erroneous. The trial court's decision on that count was therefore reversed, and the suit was remanded.

Rhode Island's Collateral Source Rule Does Not Cover Medicaid Payments

The Superior Court of Rhode Island, in Providence, held that G.L. 1956 ' 9-19-34.1, the state's statute abrogating the collateral source rule, does not apply to Medicaid payments, so plaintiff was entitled to recover from defendant tortfeasers amounts paid by Medicaid for decedent's medical care. Esposito v. O'Hair, 2004 R.I. Super. LEXIS 70 (4/6/04).

In response to the perceived medical malpractice insurance crisis, the Rhode Island General Assembly had enacted ' 9-19-34.1, which, with respect to health, sickness or income disability insurance or accident insurance that provides health benefits, abrogated the common-law collateral source rule (which had mandated that evidence of payments made to an injured party from sources independent of a tortfeasor were inadmissible and could not be cited to diminish the tortfeasors' liability to the plaintiff). In the underlying cause of action for medical malpractice, plaintiff alleged that the defendants were negligent in failing to diagnose plaintiff's decedent with Hodgkins lymphoma, which ultimately led to death. The parties eventually settled, but preserved for judicial determination the question whether the contributions the State of Rhode Island had paid for decedent's medical care ($381,659) were recoverable by plaintiff. Defendants contended that ' 9-19-34.1, applied in this case and precluded plaintiff from recovering payments made on decedent's behalf by the State of Rhode Island through Medicaid. Plaintiff countered that the law didn't apply to Medicaid payments.

The court noted that statutes in derogation of the common law must be strictly construed when interpreting the General Assembly's language. It found in this case that the General Assembly's language in ' 9-19-34.1 does not include Medicaid payments, as Medicaid cannot be interpreted as health, sickness or income disability insurance, or as accident insurance that provides health benefits. As Medicaid payments do not fall within the terms of ' 9-19-34.1, evidence of these payments is inadmissible in a medical malpractice action and plaintiff is not precluded from recovering the damages paid by Medicaid from the defendants. Accordingly, judgment was entered in favor of plaintiff in the amount of $381,659.26 plus pre-judgment interest.

California's Heightened Standards Relaxed in Cases of Elder Abuse

Section 425.13(a) of California's Code of Civil Procedure, which requires heightened standards when punitive damages are sought in an action arising out of the professional negligence of a health care provider, does not apply to actions under the Elder Abuse Act, the California Supreme Court held on March 25. Covenant Care Inc. v. The Superior Court of Los Angeles County, No. S098817, 32 Cal. 4th 771; 2004 Cal. LEXIS 2546 (3/25/04).

After an elderly man died at a nursing facility, his children sued for negligence. More than two years later, the children moved to file a fourth amended complaint containing allegations of elder abuse and seeking punitive damages. The facility opposed it, arguing that the plaintiffs had not complied with ' 425.13(a), which requires that a motion demonstrating a “substantial probability” of success on the claim be filed within two years of the filing of the complaint. The trial court nonetheless granted the motion and that ruling was upheld by the state's intermediate appellate court.

Affirming, the state Supreme Court said that nothing in the language or legislative history of the Elder Abuse Act or ' 425.13 suggests that the legislature meant to link the two statutes. The purpose of the Elder Abuse Act, it said, was to protect a vulnerable part of the population with heightened civil remedies, while the purpose of '425.13 was to discourage sham punitive damages claims in medical malpractice actions.

Fraudulent Joinder Not Found After Second Suit Filed Against Manufacturer

Plaintiffs were allowed to join additional defendants to their product liability action pursuant to Fed. R. Civ. P. 20 and to remand the action to state court because joinder, which destroyed complete diversity, was not fraudulently motivated. Hunt v. Stryker Corp. , 2004 U.S. Dist. LEXIS 3896 (S.D.N.Y. 3/10/04).

Plaintiffs are a husband and wife who brought suit in 2000 in the Supreme Court of the State of New York, New York County, against the wife's doctor and hospital following implantation of a hip replacement device. The device fractured and failed in under 3 years, prompting their suit alleging medical malpractice and negligence. During discovery, the doctor suggested that the device, manufactured by Stryker Corp., was defective. The state court action proceeded through the completion of discovery.

On Aug. 6, 2003, plaintiffs commenced a products liability action in state court against Stryker. Stryker removed the case to the District Court for the Southern District of New York pursuant to 28 U.S.C. ' 1441(b) on Sept. 22, 2003. On Oct. 15, 2003, plaintiffs moved to join to this action the defendant doctor and hospital. They also moved for an order remanding the action to state court on the grounds that joinder of the state court medical malpractice defendants, who are New York residents, destroyed complete diversity, divesting the district court of subject matter jurisdiction. The court noted that courts in the circuit will permit joinder only if it serves the principles of fundamental fairness. In making this determination, the factors to be considered include: 1) any delay, as well as the reason for delay, in seeking joinder; 2) resulting prejudice to defendant; 3) the likelihood of multiple litigation; and 4) the plaintiff's motivation for the amendment.

Defendants argued here that plaintiffs had unduly delayed because they'd known about their potential claims against Stryker for 3 years, or at least since the doctor's deposition a year before the product liability suit was filed. But, these delays, the court held, related to the length of time plaintiffs took to bring their action against the defendants, whereas the only delay that is relevant to joinder considerations is that between the removal of the case and the plaintiffs' motion for joinder and remand. As plaintiffs moved to join the medical malpractice defendants less than 4 weeks after this case was removed, no delay — and therefore no resulting prejudice — had been shown. Defendants' concerns about delay were more appropriately interpreted as claims of improper motivation on the part of plaintiffs, but the chronology of the case did not suggest to the court that this was the reason for plaintiffs' removal motion. Any delay was occasioned by plaintiffs' need to investigate their claims. In the interest of avoiding separate actions, as well as for the convenience of witnesses, counsel and the courts, plaintiffs' motion to join the doctor and hospital was granted, and the action was remanded to state court for further proceedings.

Breast Implant Claim Not Tolled By Continuous Care

A Connecticut trial court properly dismissed a claimants' claim of medical malpractice where, despite continuous care following her operation, she knew of the basis for her claim 5 days after surgery. Rosato v. Mascardo, Case No. AC 23423, 2004 Conn. App. LEXIS 157 (Conn. App. Ct. 4/13/04).

The plaintiff sued the defendant surgeon, alleging medical malpractice and breach of contract, after the defendant used silicone breast implants during surgery on Feb. 13, 1989. Several days after the surgery, during a postoperative checkup, the plaintiff was informed silicone implants had been inserted. The defendant surgeon allegedly promised to remove the implants for free when her new surgery center was constructed. The plaintiff visited the defendant surgeon from 1989 to 1992, and the surgeon allegedly repeated the promise to remove the implants. In August 1992, the new surgical center was ready, but the surgeon said she would charge the plaintiff $4000 for additional surgery. The plaintiff sued.

The defendant surgeon filed for summary judgment, arguing the statute of limitations in C.G.S. ' 52-584 had expired and the suit, filed Nov. 19, 1992, was too late. The trial court agreed with respect to the medical malpractice count. The suit proceeded to trial before the jury on the breach-of-contract count. Before the plaintiff's case closed, the trial court directed a verdict for the defense on the breach-of-contract count.

On appeal to the state Appellate Court, the plaintiff argued the continuous treatment or continuing-course-of-conduct doctrine tolled the statute of limitations on the medical malpractice count until August 1992. The Appellate Court affirmed the trial court's decision in part. The tolling doctrines apply to the repose portion of the statute of limitations, not the discovery portion. Once the plaintiff discovered her injury, the statute began to run. The plaintiff was informed about the silicone implants five days after the surgery. The instant suit, filed in November 1992, was beyond the limitations period. However, the trial court's decision to direct a defense verdict on the breach-of-contract claim before the plaintiff's case concluded was erroneous. The trial court's decision on that count was therefore reversed, and the suit was remanded.

Rhode Island's Collateral Source Rule Does Not Cover Medicaid Payments

The Superior Court of Rhode Island, in Providence, held that G.L. 1956 ' 9-19-34.1, the state's statute abrogating the collateral source rule, does not apply to Medicaid payments, so plaintiff was entitled to recover from defendant tortfeasers amounts paid by Medicaid for decedent's medical care. Esposito v. O'Hair, 2004 R.I. Super. LEXIS 70 (4/6/04).

In response to the perceived medical malpractice insurance crisis, the Rhode Island General Assembly had enacted ' 9-19-34.1, which, with respect to health, sickness or income disability insurance or accident insurance that provides health benefits, abrogated the common-law collateral source rule (which had mandated that evidence of payments made to an injured party from sources independent of a tortfeasor were inadmissible and could not be cited to diminish the tortfeasors' liability to the plaintiff). In the underlying cause of action for medical malpractice, plaintiff alleged that the defendants were negligent in failing to diagnose plaintiff's decedent with Hodgkins lymphoma, which ultimately led to death. The parties eventually settled, but preserved for judicial determination the question whether the contributions the State of Rhode Island had paid for decedent's medical care ($381,659) were recoverable by plaintiff. Defendants contended that ' 9-19-34.1, applied in this case and precluded plaintiff from recovering payments made on decedent's behalf by the State of Rhode Island through Medicaid. Plaintiff countered that the law didn't apply to Medicaid payments.

The court noted that statutes in derogation of the common law must be strictly construed when interpreting the General Assembly's language. It found in this case that the General Assembly's language in ' 9-19-34.1 does not include Medicaid payments, as Medicaid cannot be interpreted as health, sickness or income disability insurance, or as accident insurance that provides health benefits. As Medicaid payments do not fall within the terms of ' 9-19-34.1, evidence of these payments is inadmissible in a medical malpractice action and plaintiff is not precluded from recovering the damages paid by Medicaid from the defendants. Accordingly, judgment was entered in favor of plaintiff in the amount of $381,659.26 plus pre-judgment interest.

California's Heightened Standards Relaxed in Cases of Elder Abuse

Section 425.13(a) of California's Code of Civil Procedure, which requires heightened standards when punitive damages are sought in an action arising out of the professional negligence of a health care provider, does not apply to actions under the Elder Abuse Act, the California Supreme Court held on March 25. Covenant Care Inc. v. The Superior Court of Los Angeles County, No. S098817, 32 Cal. 4th 771; 2004 Cal. LEXIS 2546 (3/25/04).

After an elderly man died at a nursing facility, his children sued for negligence. More than two years later, the children moved to file a fourth amended complaint containing allegations of elder abuse and seeking punitive damages. The facility opposed it, arguing that the plaintiffs had not complied with ' 425.13(a), which requires that a motion demonstrating a “substantial probability” of success on the claim be filed within two years of the filing of the complaint. The trial court nonetheless granted the motion and that ruling was upheld by the state's intermediate appellate court.

Affirming, the state Supreme Court said that nothing in the language or legislative history of the Elder Abuse Act or ' 425.13 suggests that the legislature meant to link the two statutes. The purpose of the Elder Abuse Act, it said, was to protect a vulnerable part of the population with heightened civil remedies, while the purpose of '425.13 was to discourage sham punitive damages claims in medical malpractice actions.