Verdicts

Blum, a licensed podiatrist, performed a bunionectomy on Sonia Y. Jones, who later developed complications and brought suit against Blum in Texas state court. In response to Jones' suit, Blum's insurer, Gulf Insurance, retained Cowles & Thompson, PC, a Texas law firm, to represent him. Initially, Cowles & Thompson attorney Stan Thiebaud was assigned to handle the litigation, however due to a conflict Thiebaud was unable to represent Blum, so he was replaced by a less experienced associate, Paula Shiroma-Bender.

After a 1-week trial, Jones was found liable. The jury also imposed damages of $2,125,000, which were eventually reduced to $1,100,000. Blum sought indemnification from Gulf Insurance. Gulf Insurance responded by informing Blum that under the express terms of his policy, it was only required to pay him $500,000. Gulf Insurance thereafter brought a declaratory action in the United States District Court for the Northern District of Texas, seeking a determination as to Gulf Insurance's financial obligations under Blum's policy. Blum brought a counterclaim against Gulf Insurance charging that the insurer negligently failed to settle with Jones prior to trial, when she offered to settle the entire matter for $500,000. Moreover, Blum brought a claim against Cowles & Thompson, PC, and Shiroma-Bender asserting that their representation of him amounted to legal malpractice under Texas law. The district court held that Gulf Insurance was not liable to Blum beyond the $500,000 per person policy limit and that no showing had been made that Blum's legal counsel failed to exercise reasonable care in the underlying medical malpractice action. This appeal ensued.

A Texas lawyer “is held to the standard of care which would be exercised by a reasonably prudent attorney.” Cosgrove v. Grimes, 774 SW2d 662 (Tex. 1989). Therefore, if an attorney makes a decision that a reasonably prudent attorney would have similarly made, even if that decision is later deemed to have been a grievously erroneous strategic choice, the attorney cannot be said to have been negligent in his representation of his client.

The record revealed that throughout the course of the litigation Blum was pleased with Shiroma-Bender's representation. Nevertheless, the rationale behind Blum's legal malpractice claim was that he believed the district court wrongly concluded that no genuine issues of material fact were in dispute on that basis that, in a deposition, had expressed satisfaction with Shiroma-Bender's work despite the verdict. Moreover, Blum suggested the district court disregarded the fact that Shiroma-Bender allegedly never instructed Blum to seek independent legal counsel to evaluate a settlement offer made by Jones prior to the commencement of the trial.

The court found that even if Blum's allegations were true, they would not undermine the district court's grant of summary judgment, because he did not demonstrated that he would have prevailed in the medical malpractice trial but for Shiroma-Bender's representation, or that she failed to exercise reasonable care. At minimum, under the negligence standard Blum would have to make a showing that the jury's damage award was proximately caused by Shiroma-Bender's conduct. See Doe. v. Boys Clubs of Greater Dallas, 907 SW2d 472 (Tex. 1995). Consequently, the judgment was affirmed.

Michigan's Med-Mal Damage Cap Applied to Federal EMTALA Claim

In Smith v. Botsford General Hospital, 2005 U.S. App. LEXIS 17512 (6th Cir. 8/18/05), plaintiff, the personal representative of the estate of the deceased, Kelly Smith, brought an action against Defendant Botsford General Hospital, alleging that it violated the Emergency Medical Treatment and Active Labor Act (EMTALA). Smith, a 33-year-old man weighing approximately 600 pounds, presented at the hospital with an open femur fracture. Botsford's personnel decided to send Smith to another hospital because he was so large that they did not believe their facility was capable of properly caring for him. Twenty-one minutes into the ambulance ride, Smith died from extensive blood loss.

Plaintiff alleged that Bostford failed to stabilize Smith, as EMTALA requires, before transferring him. Plaintiff's witnesses testified that Smith suffered progressive blood loss and that Botsford needed to take additional measures, such as giving Smith a blood transfusion, to stabilize his condition. Botsford, by contrast, presented evidence that it had taken all appropriate steps to and did successfully stabilize Smith before transferring him, that Smith's rapid deterioration could not have been anticipated, and that Smith's weight and cocaine and alcohol use contributed to his death.

Following a trial, the jury found in favor of plaintiff and awarded $35,000 for economic damages and $5,000,000 for non-economic damages. Bostford filed several post-trial motions, one of which sought a damages award reduction based on Michigan's statutory limitation on non-economic damages in medical malpractice cases. The district court denied the motion, and Botsford appealed.

EMTALA's civil enforcement provisions specify that any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of the act may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located. 42 U.S.C. ' 1395dd(d)(2)(A). Whether EMTALA's incorporation of state law then led to the application of Michigan's malpractice damages cap was therefore the primary question the Sixth Circuit had to answer.

Because there was no precedent concerning the applicability of Michigan's malpractice damages cap to an EMTALA failure-to-stabilize claim, the court took guidance from the Fourth Circuit's decision in Power v. Arlington Hosp. Assoc., 42 F.3d 851 (4th Cir. 1994), which instructed: “[T]he appropriate starting point for analyzing whether [a state] malpractice cap applies and what damages are available … is [this] threshold question … Whether [the plaintiff's] EMTALA claim would be deemed a malpractice claim under [state law]?” Power, 42 F.3d at 860. The court therefore focused its inquiry on whether plaintiff's failure-to-stabilize claim would constitute a medical malpractice claim under Michigan law.

The test in Michigan for whether a claim is one of ordinary negligence or of medical malpractice was recently articulated in Bryant v. Oakpointe Villa Nursing Ctr., 471 Mich. 411 (Mich. 2004). Bryant instructs that courts undertaking this analysis should first ask whether the claim is being brought against a person or entity that is capable of malpractice. Then, courts should consider whether the alleged claim sounds in medical malpractice — which, in turn, depends on the resolution of two additional questions: 1) whether the claim pertains to an action that occurred within the course of a professional relationship; and 2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience such that expert testimony is needed to help lay jurors evaluate the reasonableness of the defendant's actions. If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions.

Here, plaintiff did not dispute that Botsford was an entity capable of malpractice or that the claim “pertains to an action that occurred within the course of a professional relationship.” The court found with respect to the second prong of the Bryant test that this EMTALA failure-to-stabilize claim constituted a malpractice action under Michigan law. Like the claims Bryant deemed malpractice actions, compliance with EMTALA's stabilization requirements entails medical judgment — assuring “within reasonable medical probability, that no material deterioration of the condition is likely,” 42 U.S.C. ' 1395dd(e)(3)(A) — understood, as this case exemplifies, only through expert testimony.

It thus concluded that Michigan's cap on malpractice damages limited plaintiff's non-economic damages to $359,000.

Doctor Can't Prove Legal Malpractice By Outcome Alone

The district court properly granted summary judgment to defendant attorneys as plaintiff could not show that he would have prevailed in the underlying medical malpractice case but for his attorneys' representation. Gulf Insurance Co. v. Jones, 2005 U.S. App. LEXIS 16228 (5th Cir. 8/4/05).

Donald R. Blum, D.P.M., appealed from the district court's grant of summary judgment to his attorneys, Third Party Defendants Cowles & Thompson, PC, and Paula Shiroma-Bender. Blum contended that Cowles & Thompson, the law firm retained by his insurer to represent him in an underlying medical malpractice action, and Shiroma-Bender, the attorney who represented him throughout the course of his trial, were liable for legal malpractice.

Blum, a licensed podiatrist, performed a bunionectomy on Sonia Y. Jones, who later developed complications and brought suit against Blum in Texas state court. In response to Jones' suit, Blum's insurer, Gulf Insurance, retained Cowles & Thompson, PC, a Texas law firm, to represent him. Initially, Cowles & Thompson attorney Stan Thiebaud was assigned to handle the litigation, however due to a conflict Thiebaud was unable to represent Blum, so he was replaced by a less experienced associate, Paula Shiroma-Bender.

After a 1-week trial, Jones was found liable. The jury also imposed damages of $2,125,000, which were eventually reduced to $1,100,000. Blum sought indemnification from Gulf Insurance. Gulf Insurance responded by informing Blum that under the express terms of his policy, it was only required to pay him $500,000. Gulf Insurance thereafter brought a declaratory action in the United States District Court for the Northern District of Texas, seeking a determination as to Gulf Insurance's financial obligations under Blum's policy. Blum brought a counterclaim against Gulf Insurance charging that the insurer negligently failed to settle with Jones prior to trial, when she offered to settle the entire matter for $500,000. Moreover, Blum brought a claim against Cowles & Thompson, PC, and Shiroma-Bender asserting that their representation of him amounted to legal malpractice under Texas law. The district court held that Gulf Insurance was not liable to Blum beyond the $500,000 per person policy limit and that no showing had been made that Blum's legal counsel failed to exercise reasonable care in the underlying medical malpractice action. This appeal ensued.

A Texas lawyer “is held to the standard of care which would be exercised by a reasonably prudent attorney.” Cosgrove v. Grimes , 774 SW2d 662 (Tex. 1989). Therefore, if an attorney makes a decision that a reasonably prudent attorney would have similarly made, even if that decision is later deemed to have been a grievously erroneous strategic choice, the attorney cannot be said to have been negligent in his representation of his client.

The record revealed that throughout the course of the litigation Blum was pleased with Shiroma-Bender's representation. Nevertheless, the rationale behind Blum's legal malpractice claim was that he believed the district court wrongly concluded that no genuine issues of material fact were in dispute on that basis that, in a deposition, had expressed satisfaction with Shiroma-Bender's work despite the verdict. Moreover, Blum suggested the district court disregarded the fact that Shiroma-Bender allegedly never instructed Blum to seek independent legal counsel to evaluate a settlement offer made by Jones prior to the commencement of the trial.

The court found that even if Blum's allegations were true, they would not undermine the district court's grant of summary judgment, because he did not demonstrated that he would have prevailed in the medical malpractice trial but for Shiroma-Bender's representation, or that she failed to exercise reasonable care. At minimum, under the negligence standard Blum would have to make a showing that the jury's damage award was proximately caused by Shiroma-Bender's conduct. See Doe. v. Boys Clubs of Greater Dallas , 907 SW2d 472 (Tex. 1995). Consequently, the judgment was affirmed.

Michigan's Med-Mal Damage Cap Applied to Federal EMTALA Claim

In Smith v. Botsford General Hospital, 2005 U.S. App. LEXIS 17512 (6th Cir. 8/18/05), plaintiff, the personal representative of the estate of the deceased, Kelly Smith, brought an action against Defendant Botsford General Hospital, alleging that it violated the Emergency Medical Treatment and Active Labor Act (EMTALA). Smith, a 33-year-old man weighing approximately 600 pounds, presented at the hospital with an open femur fracture. Botsford's personnel decided to send Smith to another hospital because he was so large that they did not believe their facility was capable of properly caring for him. Twenty-one minutes into the ambulance ride, Smith died from extensive blood loss.

Plaintiff alleged that Bostford failed to stabilize Smith, as EMTALA requires, before transferring him. Plaintiff's witnesses testified that Smith suffered progressive blood loss and that Botsford needed to take additional measures, such as giving Smith a blood transfusion, to stabilize his condition. Botsford, by contrast, presented evidence that it had taken all appropriate steps to and did successfully stabilize Smith before transferring him, that Smith's rapid deterioration could not have been anticipated, and that Smith's weight and cocaine and alcohol use contributed to his death.

Following a trial, the jury found in favor of plaintiff and awarded $35,000 for economic damages and $5,000,000 for non-economic damages. Bostford filed several post-trial motions, one of which sought a damages award reduction based on Michigan's statutory limitation on non-economic damages in medical malpractice cases. The district court denied the motion, and Botsford appealed.

EMTALA's civil enforcement provisions specify that any individual who suffers personal harm as a direct result of a participating hospital's violation of a requirement of the act may, in a civil action against the participating hospital, obtain those damages available for personal injury under the law of the state in which the hospital is located. 42 U.S.C. ' 1395dd(d)(2)(A). Whether EMTALA's incorporation of state law then led to the application of Michigan's malpractice damages cap was therefore the primary question the Sixth Circuit had to answer.

Because there was no precedent concerning the applicability of Michigan's malpractice damages cap to an EMTALA failure-to-stabilize claim, the court took guidance from the Fourth Circuit's decision in Power v. Arlington Hosp. Assoc. , 42 F.3d 851 (4th Cir. 1994), which instructed: “[T]he appropriate starting point for analyzing whether [a state] malpractice cap applies and what damages are available … is [this] threshold question … Whether [the plaintiff's] EMTALA claim would be deemed a malpractice claim under [state law]?” Power , 42 F.3d at 860. The court therefore focused its inquiry on whether plaintiff's failure-to-stabilize claim would constitute a medical malpractice claim under Michigan law.

The test in Michigan for whether a claim is one of ordinary negligence or of medical malpractice was recently articulated in Bryant v. Oakpointe Villa Nursing Ctr. , 471 Mich. 411 (Mich. 2004). Bryant instructs that courts undertaking this analysis should first ask whether the claim is being brought against a person or entity that is capable of malpractice. Then, courts should consider whether the alleged claim sounds in medical malpractice — which, in turn, depends on the resolution of two additional questions: 1) whether the claim pertains to an action that occurred within the course of a professional relationship; and 2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience such that expert testimony is needed to help lay jurors evaluate the reasonableness of the defendant's actions. If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions.

Here, plaintiff did not dispute that Botsford was an entity capable of malpractice or that the claim “pertains to an action that occurred within the course of a professional relationship.” The court found with respect to the second prong of the Bryant test that this EMTALA failure-to-stabilize claim constituted a malpractice action under Michigan law. Like the claims Bryant deemed malpractice actions, compliance with EMTALA's stabilization requirements entails medical judgment — assuring “within reasonable medical probability, that no material deterioration of the condition is likely,” 42 U.S.C. ' 1395dd(e)(3)(A) — understood, as this case exemplifies, only through expert testimony.

It thus concluded that Michigan's cap on malpractice damages limited plaintiff's non-economic damages to $359,000.