Verdicts

Over a year later, Speed was hospitalized, during which time he was treated by the defendant, Dr. Muhanna, for deep venous thrombosis in his right leg. In June 2002, Zahler called Muhanna, told him that he was representing Speed in the premises liability case against Sports Authority, and asked Muhanna if he could depose him as Speed's treating physician in that case. Muhanna wanted assurance that the action in which he was to be deposed was not a medical malpractice case, and Zahler assured him that it was not. Muhanna asked Zahler to put that assurance in writing. In August 2002. Zahler sent a letter to Muhanna, copied to Speed, confirming that he would be taking his deposition in Septemeber 2002, and that he would be meeting with him to discuss the case prior to taking the deposition. Zahler's letter also confirmed “that the subject matter of the deposition will be the care and treatment provided by you and Henry Medical Center in connection with Mr. Speed's medical condition. This is not a medical malpractice case and neither now or in the future will you be subject to any type of malpractice claim.” (Emphasis supplied.) The explicit waiver of any mal-practice claims against Muhanna was done with Speed's knowledge, and Speed made no objections to Zahler or to Muhanna regarding the waiver of the claims at the time that the letter was sent to Muhanna.

Using new counsel other than Zahler, Speed later filed this medical malpractice suit against Muhanna alleging professional negligence in his care and treatment of Speed. Muhanna filed an answer in which he asserted as a defense, among other things, that Speed had previously released any malpractice claim he might have against Muhanna and was thus barred from recovery in the action. The trial court granted Muhanna's motion for summary judgment on the ground that Zahler's August 2002 letter to Muhanna was a release of that claim.

Speed appealed, arguing that Zahler had no authority to release his claim against Muhanna. He pointed out that he retained Zahler to represent him in his premises liability case against Sports Authority, but never hired Zahler to pursue a medical malpractice claim against Muhanna; thus, Zahler had no authority to release the medical malpractice claim against Muhanna.

The court disagreed, finding that Zahler had been given actual authority to release Speed's claims against Muhanna because he had been authorized to investigate and pursue “any and all claims which [Speed] may have against Sports Authority, and any other Defendants later named or identified, as a result of” the incident at Sports Authority, and was making inquiries regarding Muhanna's care and treatment of Speed prior to a severe deterioration in his medical condition. As Speed's attorney, Zahler had authority to obtain Muhanna's deposition testimony in exchange for payment as an expert witness or some other bargained-for exchange, such as a covenant not to sue or a release. When Muhanna expressed his reluctance to be deposed, Zahler, in a letter that showed on its face that it had been copied to Speed, assured Muhanna that “neither now or in the future [would he] be subject to any type of malpractice claim.” Speed made no objections at that time. Thus, Zahler had actual authority to negotiate with Muhanna on Speed's behalf.

Furthermore, even if he had not had actual authority, Zahler had apparent authority to negotiate on Speed's behalf under Georgia's Uniform Superior Court Rule 4.12, which provides that “[a]ttorneys of record have apparent authority to enter into agreements on behalf of their clients in civil actions.”

The Deceased's Comparative Negligence Not Proven

The mere fact that the deceased patient regained weight he'd originally lost under defendant's care was not a sufficient circumstance from which to infer he had been contributorily negligent in causing his own death. Zak v. Riffel, 2005 Kan. App. LEXIS 689 (7/15/05).

Plaintiff filed a medical negligence suit seeking damages for the wrongful death of her husband, Michael Zak, a 48-year-old business executive, from dilated cardiomyopathy. Zak had had chronic heart valve problems for years. He was also obese, weighing 309 pounds when he first sought treatment from defendant doctor. At that time, defendant suggested significant weight loss and lifestyle adjustments, which Zak made, losing over 60 pounds. Over the next couple of years, however, he regained much of the weight, despite Zak's and defendant's apparent best efforts.

On Dec. 21, 1998, Zak had his annual physical. At that visit, defendant concluded that Zak's chest x-ray was clear and his EKG had not changed significantly. Less than 2 months later, Zak went to a hospital emergency room with chest pain, where he was diagnosed with gastritis and released. He reported the emergency room visit to defendant. On Feb. 22, 1999, Zak saw defendant and told him he had been experiencing mild chest discomfort in the middle of the night. Defendant examined Zak and concluded he had gastroesophageal reflux disease (GERD). Approximately 1 month later, Zak died of an arrhythmia due to an enlarged heart, or dilated cardiomyopathy culminating in a cardiac arrest. The doctor who performed the autopsy testified at trial that Zak's heart weighed 880 grams at the time of the autopsy, whereas a normal heart would weigh 350-420 grams. Any heart weighing over 600 grams is considered electrically unstable. At the time of his death, Zak weighed 272 pounds.

The case was tried to a jury. At the conclusion of the trial, the district court instructed the jury to compare fault between Zak and defendant. The jury returned a verdict, finding defendant to be 51% at fault and Zak 49% at fault. The jury awarded $100,000 in total damages, which included $25,000 for medical expenses and $75,000 for past economic loss. Plaintiff appealed, claiming, inter alia, that the trial court erred by giving an instruction that allowed the jury to allocate fault to Zak because of his obesity and lifestyle.

The Court of Appeals of Kansas noted that under Kansas law, a patient's prior condition which required him to be under a physician's care cannot be a basis for comparative fault in a negligence claim against the physician. Huffman v. Thomas, 26 Kan. App. 2d 685, rev. denied 268 Kan. 846 (1999) (“It is inconsistent with the reasonable and normal expectations for the court to excuse or reduce the medical provider's liability simply because it was the patient's own fault that he or she required care in the first place.”) However, the evidence at trial supporting defendant's assertion that Zak failed to follow reasonable treatment advice was tenuous. The only specific evidence cited by defendant to support this claim was Zak's failure to keep his weight down and his failure to renew a phentermine prescription in 1998. The evidence was undisputed that Zak was overweight. However, the mere fact that Zak regained much of the weight that he had initially lost did not prove that Zak failed to follow defendant's treatment advice. To the contrary, the testimony supported the fact that Zak continued to watch his diet and exercised regularly. In fact, defendant testified that Zak was an “excellent patient,” and defendant was shocked when he learned of Zak's death. Furthermore, Zak's failure to renew his prescription for phentermine could hardly be considered as fault in light of evidence that phentermine was contraindicated for individuals with cardiac disease. Thus, the judgment was reversed and the case remanded for new trial.

Promise Not to Sue Prompts Summary Judgment to Doctor

A release from liability, given incident to an earlier litigation to which the defendant doctor was not a party, was held enforceable against the plaintiff in this malpractice action. Speed v. Muhanna, 2005 Ga. App. LEXIS 802 (7/22/05).

Plaintiff Henry Speed injured his foot at a Sports Authority store. In November 1999, Speed retained attorney Scott Zahler to represent him in pursuing any claims he might have “against Sports Authority, and any other Defendants later named or identified as a result of” the incident. Zahler filed a premises liability action against Sports Authority on Speed's behalf.

Over a year later, Speed was hospitalized, during which time he was treated by the defendant, Dr. Muhanna, for deep venous thrombosis in his right leg. In June 2002, Zahler called Muhanna, told him that he was representing Speed in the premises liability case against Sports Authority, and asked Muhanna if he could depose him as Speed's treating physician in that case. Muhanna wanted assurance that the action in which he was to be deposed was not a medical malpractice case, and Zahler assured him that it was not. Muhanna asked Zahler to put that assurance in writing. In August 2002. Zahler sent a letter to Muhanna, copied to Speed, confirming that he would be taking his deposition in Septemeber 2002, and that he would be meeting with him to discuss the case prior to taking the deposition. Zahler's letter also confirmed “that the subject matter of the deposition will be the care and treatment provided by you and Henry Medical Center in connection with Mr. Speed's medical condition. This is not a medical malpractice case and neither now or in the future will you be subject to any type of malpractice claim.” (Emphasis supplied.) The explicit waiver of any mal-practice claims against Muhanna was done with Speed's knowledge, and Speed made no objections to Zahler or to Muhanna regarding the waiver of the claims at the time that the letter was sent to Muhanna.

Using new counsel other than Zahler, Speed later filed this medical malpractice suit against Muhanna alleging professional negligence in his care and treatment of Speed. Muhanna filed an answer in which he asserted as a defense, among other things, that Speed had previously released any malpractice claim he might have against Muhanna and was thus barred from recovery in the action. The trial court granted Muhanna's motion for summary judgment on the ground that Zahler's August 2002 letter to Muhanna was a release of that claim.

Speed appealed, arguing that Zahler had no authority to release his claim against Muhanna. He pointed out that he retained Zahler to represent him in his premises liability case against Sports Authority, but never hired Zahler to pursue a medical malpractice claim against Muhanna; thus, Zahler had no authority to release the medical malpractice claim against Muhanna.

The court disagreed, finding that Zahler had been given actual authority to release Speed's claims against Muhanna because he had been authorized to investigate and pursue “any and all claims which [Speed] may have against Sports Authority, and any other Defendants later named or identified, as a result of” the incident at Sports Authority, and was making inquiries regarding Muhanna's care and treatment of Speed prior to a severe deterioration in his medical condition. As Speed's attorney, Zahler had authority to obtain Muhanna's deposition testimony in exchange for payment as an expert witness or some other bargained-for exchange, such as a covenant not to sue or a release. When Muhanna expressed his reluctance to be deposed, Zahler, in a letter that showed on its face that it had been copied to Speed, assured Muhanna that “neither now or in the future [would he] be subject to any type of malpractice claim.” Speed made no objections at that time. Thus, Zahler had actual authority to negotiate with Muhanna on Speed's behalf.

Furthermore, even if he had not had actual authority, Zahler had apparent authority to negotiate on Speed's behalf under Georgia's Uniform Superior Court Rule 4.12, which provides that “[a]ttorneys of record have apparent authority to enter into agreements on behalf of their clients in civil actions.”

The Deceased's Comparative Negligence Not Proven

The mere fact that the deceased patient regained weight he'd originally lost under defendant's care was not a sufficient circumstance from which to infer he had been contributorily negligent in causing his own death. Zak v. Riffel, 2005 Kan. App. LEXIS 689 (7/15/05).

Plaintiff filed a medical negligence suit seeking damages for the wrongful death of her husband, Michael Zak, a 48-year-old business executive, from dilated cardiomyopathy. Zak had had chronic heart valve problems for years. He was also obese, weighing 309 pounds when he first sought treatment from defendant doctor. At that time, defendant suggested significant weight loss and lifestyle adjustments, which Zak made, losing over 60 pounds. Over the next couple of years, however, he regained much of the weight, despite Zak's and defendant's apparent best efforts.

On Dec. 21, 1998, Zak had his annual physical. At that visit, defendant concluded that Zak's chest x-ray was clear and his EKG had not changed significantly. Less than 2 months later, Zak went to a hospital emergency room with chest pain, where he was diagnosed with gastritis and released. He reported the emergency room visit to defendant. On Feb. 22, 1999, Zak saw defendant and told him he had been experiencing mild chest discomfort in the middle of the night. Defendant examined Zak and concluded he had gastroesophageal reflux disease (GERD). Approximately 1 month later, Zak died of an arrhythmia due to an enlarged heart, or dilated cardiomyopathy culminating in a cardiac arrest. The doctor who performed the autopsy testified at trial that Zak's heart weighed 880 grams at the time of the autopsy, whereas a normal heart would weigh 350-420 grams. Any heart weighing over 600 grams is considered electrically unstable. At the time of his death, Zak weighed 272 pounds.

The case was tried to a jury. At the conclusion of the trial, the district court instructed the jury to compare fault between Zak and defendant. The jury returned a verdict, finding defendant to be 51% at fault and Zak 49% at fault. The jury awarded $100,000 in total damages, which included $25,000 for medical expenses and $75,000 for past economic loss. Plaintiff appealed, claiming, inter alia, that the trial court erred by giving an instruction that allowed the jury to allocate fault to Zak because of his obesity and lifestyle.

The Court of Appeals of Kansas noted that under Kansas law, a patient's prior condition which required him to be under a physician's care cannot be a basis for comparative fault in a negligence claim against the physician. Huffman v. Thomas , 26 Kan. App. 2d 685, rev. denied 268 Kan. 846 (1999) (“It is inconsistent with the reasonable and normal expectations for the court to excuse or reduce the medical provider's liability simply because it was the patient's own fault that he or she required care in the first place.”) However, the evidence at trial supporting defendant's assertion that Zak failed to follow reasonable treatment advice was tenuous. The only specific evidence cited by defendant to support this claim was Zak's failure to keep his weight down and his failure to renew a phentermine prescription in 1998. The evidence was undisputed that Zak was overweight. However, the mere fact that Zak regained much of the weight that he had initially lost did not prove that Zak failed to follow defendant's treatment advice. To the contrary, the testimony supported the fact that Zak continued to watch his diet and exercised regularly. In fact, defendant testified that Zak was an “excellent patient,” and defendant was shocked when he learned of Zak's death. Furthermore, Zak's failure to renew his prescription for phentermine could hardly be considered as fault in light of evidence that phentermine was contraindicated for individuals with cardiac disease. Thus, the judgment was reversed and the case remanded for new trial.