Verdicts

The family sued the nursing home, the doctor and several others, alleging, inter alia, violations of Tex. Bus. & Com. Code Ann. '' 17.41-.63 (2002 and Supp. 2004-05), commonly known as the Deceptive Trade Practices-Consumer Protection Act (DTPA). On Nov. 4, 1997, the trial court granted the defendants' motion for summary judgment on DTPA claim. Plaintiffs appealed to the Court of Appeal of Texas, 14th District, Houston.

With respect to their DTPA claim, the plaintiffs alleged the defendants expressly warranted and represented that Scott would be kept on oxygen, but defendants breached that express warranty and representation and allowed Scott to go off oxygen, all to her detriment. This representation was “knowing” by defendants and the warranty in question was a warranty that “warrants a particular result,” namely that Scott would be kept on oxygen. The breach of such warranty and the knowing misrepresentation they claimed constituted deceptive trade practices.

The appellate court began by pointing out that the DTPA does not apply to health care providers with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence. TEX. REV. CIV. STAT. ANN. art. 4590i, ' 12.01(a). Citing to Sorokolit v. Rhodes, 889 S.W.2d 239 (Tex. 1994), the court also noted that ' 12.01(a) precludes a DTPA claim against a physician if it is based on a breach of the accepted standard of medical care. However, if the alleged DTPA claim is not based on the physician's breach of the accepted standard of medical care, such DTPA claim is not precluded by section 12.01(a). Based on these authorities, the court found that the plaintiffs' DTPA claim was nothing more than an impermissible attempt to recast a negligence claim as a DTPA claim, said the court. Their claim was one concerning a departure from accepted standards of medical care and there was no claim of guaranteed results in the care defendants would provide to Scott. “Any determination that the representations and warranties were breached necessarily would require a determination of whether appellees failed to meet the standard of medical care for Ms. Scott,” stated the appellate court. “We conclude the trial court properly granted summary judgment on the ground that [' 12.01(a)] precluded the Scotts from casting their negligence claim as a DTPA claim.”

West Virginia's Tort Reform Measures Apply to FTCA Claim

Because West Virginia's statutory limitation on non-economic damages would apply to a private person sued within that state, it also must be applied to the United States when it is sued in West Virginia under the terms of the Federal Tort Claims Act (FTCA), 28 U.S.C.S. ' 1346(b). Wilson v. U.S., 2005 U.S. Dist. LEXIS 12904 (E.D. Va., Alexandria Div. 6/27/05).

In November 2001, plaintiff underwent an emergency operation at INOVA Fairfax Hospital (INOVA) for colon problems. Complications arose and he had to have two more operations in the following months. In 2004, a fourth operation was also required.

Plaintiff filed a timely administrative claim alleging medical negligence under the FTCA. After that claim was denied, plaintiff filed the instant FTCA action against the United States, alleging, inter alia, that the third and fourth surgical procedures he was required to undergo at INOVA were proximately caused by the negligence of defendant's agent in the course of the November 2001 surgery at the VA Medical Center. In his original complaint, plaintiff sought $1,550,000 in damages as a result of the alleged breach of the applicable standard of care. Defendant, however, filed a motion in limine requesting a pretrial determination that West Virginia's Medical Professional Liability Act (MPLA), W. Va. Code ' 55-7B-1, et seq., served to limit the amount of non-economic damages that plaintiff would be entitled to recover from the United States in the event he prevails on the liability aspect of his claim.

The FTCA creates a limited waiver of sovereign immunity, expressly providing that the United States has waived immunity with respect to civil actions seeking money damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. ' 1346(b). Yet, significantly, the court noted here, the United States has waived its immunity in such cases only to the extent a private person would be held liable under similar circumstances. Thus, the FTCA waiver of immunity applies only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Id.

Given this express statutory language, the extent of defendant's liability to plaintiff in this instance was therefore necessarily governed by West Virginia law, as the alleged negligent acts occurred at the VA Medical Center in Martinsburg, WV. See Dunbar Corp. v. U.S., 905 F.2d 754 (4th Cir. 1991) (recognizing that the “United States liability under the FTCA depends on state law”). Because West Virginia's MPLA imposes strict limitations on a plaintiff's recovery of non-economic damages, those same limitations apply to the United States as defendant.

The result in this case was not altered by the fact that the VA Medical Center was not licensed by the state of West Virginia, as otherwise required for a West Virginia health care facility to be governed by the MPLA. See W. Va. Code ' 55-7B-2 (defining “health care facility” as “any clinic, [or] hospital…in and licensed by the state of West Virginia and any state operated institution or clinic providing health care”). This outcome, the court explained, is brought about by the fact that the government's liability in this instance is found in the FTCA, not the MPLA, and the U.S. Court of Appeals for the Fourth Circuit has made clear that while state law “informs us on how a private party would be treated, it is incapable of telling us to what extent the federal government has waived its sovereign immunity.” Starns v. U.S.,923 F.2d 34 (4th Cir. 1991).

Attempt to Mask Negligence Theory As Breach of Warranty Claim Fails

A claim that health care providers failed to adhere to their warranty that they would keep a patient on a ventilator was an impermissible attempt to recast a medical malpractice claim as one for breach of warranty and dismissal of that claim was proper. Scott v. Beechnut Manor, 2005 Tex. App. LEXIS 4727 (6/21/05).

In 1993, Dorethea Scott suffered a stroke that left her dependent on a ventilator. Her family admitted her to Beechnut Manor nursing home, where she resided in the respiratory care unit. Scott's doctor ordered constant oxygen therapy for her. The deceased's family claimed they were assured by the administrator that Scott would be kept on oxygen at all times, but that Scott was taken off of oxygen on Dec. 27, 1994, while routine maintenance was performed on the ventilator. After completing the maintenance procedure, however, the technician allegedly failed to reconnect Scott's oxygen. Scott died later that day.

The family sued the nursing home, the doctor and several others, alleging, inter alia, violations of Tex. Bus. & Com. Code Ann. '' 17.41-.63 (2002 and Supp. 2004-05), commonly known as the Deceptive Trade Practices-Consumer Protection Act (DTPA). On Nov. 4, 1997, the trial court granted the defendants' motion for summary judgment on DTPA claim. Plaintiffs appealed to the Court of Appeal of Texas, 14th District, Houston.

With respect to their DTPA claim, the plaintiffs alleged the defendants expressly warranted and represented that Scott would be kept on oxygen, but defendants breached that express warranty and representation and allowed Scott to go off oxygen, all to her detriment. This representation was “knowing” by defendants and the warranty in question was a warranty that “warrants a particular result,” namely that Scott would be kept on oxygen. The breach of such warranty and the knowing misrepresentation they claimed constituted deceptive trade practices.

The appellate court began by pointing out that the DTPA does not apply to health care providers with respect to claims for damages for personal injury or death resulting, or alleged to have resulted, from negligence. TEX. REV. CIV. STAT. ANN. art. 4590i, ' 12.01(a). Citing to Sorokolit v. Rhodes , 889 S.W.2d 239 (Tex. 1994), the court also noted that ' 12.01(a) precludes a DTPA claim against a physician if it is based on a breach of the accepted standard of medical care. However, if the alleged DTPA claim is not based on the physician's breach of the accepted standard of medical care, such DTPA claim is not precluded by section 12.01(a). Based on these authorities, the court found that the plaintiffs' DTPA claim was nothing more than an impermissible attempt to recast a negligence claim as a DTPA claim, said the court. Their claim was one concerning a departure from accepted standards of medical care and there was no claim of guaranteed results in the care defendants would provide to Scott. “Any determination that the representations and warranties were breached necessarily would require a determination of whether appellees failed to meet the standard of medical care for Ms. Scott,” stated the appellate court. “We conclude the trial court properly granted summary judgment on the ground that [' 12.01(a)] precluded the Scotts from casting their negligence claim as a DTPA claim.”

West Virginia's Tort Reform Measures Apply to FTCA Claim

Because West Virginia's statutory limitation on non-economic damages would apply to a private person sued within that state, it also must be applied to the United States when it is sued in West Virginia under the terms of the Federal Tort Claims Act (FTCA), 28 U.S.C.S. ' 1346(b). Wilson v. U.S., 2005 U.S. Dist. LEXIS 12904 (E.D. Va., Alexandria Div. 6/27/05).

In November 2001, plaintiff underwent an emergency operation at INOVA Fairfax Hospital (INOVA) for colon problems. Complications arose and he had to have two more operations in the following months. In 2004, a fourth operation was also required.

Plaintiff filed a timely administrative claim alleging medical negligence under the FTCA. After that claim was denied, plaintiff filed the instant FTCA action against the United States, alleging, inter alia, that the third and fourth surgical procedures he was required to undergo at INOVA were proximately caused by the negligence of defendant's agent in the course of the November 2001 surgery at the VA Medical Center. In his original complaint, plaintiff sought $1,550,000 in damages as a result of the alleged breach of the applicable standard of care. Defendant, however, filed a motion in limine requesting a pretrial determination that West Virginia's Medical Professional Liability Act (MPLA), W. Va. Code ' 55-7B-1, et seq., served to limit the amount of non-economic damages that plaintiff would be entitled to recover from the United States in the event he prevails on the liability aspect of his claim.

The FTCA creates a limited waiver of sovereign immunity, expressly providing that the United States has waived immunity with respect to civil actions seeking money damages “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 28 U.S.C. ' 1346(b). Yet, significantly, the court noted here, the United States has waived its immunity in such cases only to the extent a private person would be held liable under similar circumstances. Thus, the FTCA waiver of immunity applies only “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” Id.

Given this express statutory language, the extent of defendant's liability to plaintiff in this instance was therefore necessarily governed by West Virginia law, as the alleged negligent acts occurred at the VA Medical Center in Martinsburg, WV. See Dunbar Corp. v. U.S. , 905 F.2d 754 (4th Cir. 1991) (recognizing that the “United States liability under the FTCA depends on state law”). Because West Virginia's MPLA imposes strict limitations on a plaintiff's recovery of non-economic damages, those same limitations apply to the United States as defendant.

The result in this case was not altered by the fact that the VA Medical Center was not licensed by the state of West Virginia, as otherwise required for a West Virginia health care facility to be governed by the MPLA. See W. Va. Code ' 55-7B-2 (defining “health care facility” as “any clinic, [or] hospital…in and licensed by the state of West Virginia and any state operated institution or clinic providing health care”). This outcome, the court explained, is brought about by the fact that the government's liability in this instance is found in the FTCA, not the MPLA, and the U.S. Court of Appeals for the Fourth Circuit has made clear that while state law “informs us on how a private party would be treated, it is incapable of telling us to what extent the federal government has waived its sovereign immunity.” Starns v. U.S.,923 F.2d 34 (4th Cir. 1991).