Impatient Judge's Actions Scuttle Defense Verdict
The Court of Appeals for the Third Circuit vacated a jury verdict for the defendant in this medical malpractice case, remanding it and assigning it to a new judge after it found the record was lacking in solid reasoning for the rulings made therein and that the district judge's conduct during trial substantially prejudiced the plaintiff's right to an impartial hearing. Svindlan v. The Nemours Foundation, Slip Copy, 2008 WL 2531198, (Not Selected for publication in the Federal Reporter), (C.A.3 (Pa.), 6/26/08).
The case was brought by the parents of child who died following heart repair surgery. They claimed the surgeon deviated from accepted medical practices and that they were given inadequate information before they signed the form consenting to surgery. The plaintiffs lost at trial and brought this appeal.
The Third Circuit vacated the defense verdict, saying District Court Judge Berle M. Schiller of the Eastern District of Pennsylvania left little in the record to explain the reasoning behind the rulings made throughout the trial. In addition, the court found the district judge repeatedly interrupted plaintiffs' counsel during trial, making it nearly impossible for plaintiff's case to be properly heard and judged on its merits. 'In fact,' stated the court, 'the District Court was often so impatient and dismissive that the record does not reflect the arguments that the [plaintiffs] sought to make.” Although the court declined to tell the lower court just how it should conduct its trials, it declared that “when a record such as this one reveals numerous instances of what we can only regard as impatience and precipitous rulings on the part of the District Court judge, to say nothing of countless interruptions of counsel's arguments, our review function as a court of appeals is severely impaired.”
Report Not Ordered or Used By Quality Assurance Committee Is Not Privileged
A New York trial court ordered a defendant hospital to provide a copy of an incident report to the plaintiff in this medical malpractice action because the hospital could not prove that the report was privileged. Benacquista v. Mt. Sinai Hospital, Slip Copy, 2008 WL 2582659, (Table, Text in WESTLAW), Unreported Disposition, 2008 N.Y. Slip Op. 51318(U), (N.Y.Sup. 7/1/08).
The subject patient in Benacquista was inadvertently burned during surgery. He later died, allegedly because of an infection resulting from that burn. The executor of the decedent's estate brought suit and sought an order directing the defendant hospital to provide him with a copy of an incident report that was prepared in 2003 by a nurse concerning the burn incident. The nurse had taken note of the burn when it occurred and testified she brought it to the attention of a supervisor. Defense counsel, seeking to keep the report from plaintiff, argued the report was privileged as it was produced pursuant to quality assurance and control measures. In support of this contention, defendant provided the affidavit of the vice president for quality assurance, who had held that position since 2006.
The court found the hospital failed to meet its burden of showing the report was created by or at the request of a hospital quality assurance committee for the committee's use, or that it was actually used by the committee. In addition, the vice president for quality assurance did not purport to know the hospital's quality assurance practices in 2003, when the report was generated. The court therefore found the report was not privileged and granted plaintiff's motion.
Insurer Cannot Rely on Insured's Answer to Save It from Default Judgment
An insurer that did not file a timely answer to a complaint filed against it and its co-defendants ' two doctors insured by the company ' could not rely on the doctors' timely-filed answers to preclude a default judgment against it, as the insurer could be directly sued under Wisconsin law and had an independent duty to file its own answer. Estate of Otto v. Physicians Insurance Company of Wisconsin Inc., — N.W.2d —-, 2008 WL 2609164 (Wis. 7/3/08).
In this medical malpractice and wrongful death action, plaintiffs served a summons and complaint on the co-defendant doctors and on their medical malpractice insurer, Physicians Insurance Company of Wisconsin Inc. (PIC). The plaintiff's complaint alleged that PIC's insureds were negligent, but also alleged that 'Physicians Insurance Company of Wisconsin, Inc ' [is] directly liable to Plaintiffs in an amount to be proven at trial.' The doctors timely filed an answer. Although the answer was not filed or served on behalf of PIC, the answer specifically denied PIC's liability to the plaintiffs for any damages; admitted that PIC 'had at a time material hereto a policy of insurance in full force and effect which provided coverage to [the doctors and the doctors' employer] for claims of the nature alleged by the plaintiffs'; and 'specifically aver[red] that the extent of coverage provided under said policy is limited by the terms and conditions of said policy ' ' PIC, however, did not file an answer within the 45-day time prescribed in the summons. In fact, it took eight months to do so.
The plaintiff moved for judgment by default against PIC and for an order striking PIC's answer. PIC moved for an order enlarging the time to file and serve its answer. The circuit court denied PIC's motion, finding that PIC's failure to answer timely was not the result of excusable neglect. See Wis. Stat. ' (Rule) 801.15(2)(a). The circuit court then ordered that PIC's untimely answer be struck and that judgment by default be entered against it. After the other co-defendants were dismissed by stipulation from the suit, the circuit court held a hearing on damages and rendered judgment by default against PIC for the plaintif's compensatory damages, plus fees, costs, and interest. PIC appealed.
On appeal, PIC claimed that the timely answer of its co-defendant insureds denying the liability of all defendants inured to PIC so as to preclude a judgment by default against PIC notwithstanding PIC's acknowledged default. In support of this claim, PIC offered several arguments, including this one: that PIC's default could not establish its liability, because its liability was completely dependent upon the liability of its codefendant insureds (the doctors) and PIC thus could not admit by its default the negligence of its codefendant insureds.
The appellate court found PIC's argument was contrary to Wisconsin's 'direct action' statute, Wis. Stat. ' 632.24. The direct action statute provides that any liability policy covering negligence makes the insurance company liable to the person entitled to recover against the insured, up to the policy limits. Under the direct action statute, the complaining party may allege the insured's conduct, and the insurer's liability therefor, directly against the insurer. Judgment may be had directly against the insurer and payment must be made directly from the insurer to the injured party. In addition, under the statute, the insured is not a necessary party to the action brought against its insurer. In fact, the case law further established that liability could be imposed 'upon the insurer irrespective of whether there is a final judgment against the insured.' Loy v. Bunderson, 107 Wis.2d 400 (1982). The court noted that a necessary corollary of the insurer's direct liability to an injured complainant is that the insurer may admit an allegation of its liability, as well as the underlying allegation of the tortious conduct of its insured. When the action is brought directly against the insurer and the insured is not a party to the action, the insurer has the ability to admit or deny the plaintiff's allegations as the insurer sees fit.
Based on this and other reasons the Supreme Court of Wisconsin determined that the circuit court did not err as a matter of law in rendering a judgment by default against PIC for the plaintiff's damages.
Impatient Judge's Actions Scuttle Defense Verdict
The Court of Appeals for the Third Circuit vacated a jury verdict for the defendant in this medical malpractice case, remanding it and assigning it to a new judge after it found the record was lacking in solid reasoning for the rulings made therein and that the district judge's conduct during trial substantially prejudiced the plaintiff's right to an impartial hearing. Svindlan v. The Nemours Foundation, Slip Copy, 2008 WL 2531198, (Not Selected for publication in the Federal Reporter), (C.A.3 (Pa.), 6/26/08).
The case was brought by the parents of child who died following heart repair surgery. They claimed the surgeon deviated from accepted medical practices and that they were given inadequate information before they signed the form consenting to surgery. The plaintiffs lost at trial and brought this appeal.
The Third Circuit vacated the defense verdict, saying District Court Judge Berle M. Schiller of the Eastern District of Pennsylvania left little in the record to explain the reasoning behind the rulings made throughout the trial. In addition, the court found the district judge repeatedly interrupted plaintiffs' counsel during trial, making it nearly impossible for plaintiff's case to be properly heard and judged on its merits. 'In fact,' stated the court, 'the District Court was often so impatient and dismissive that the record does not reflect the arguments that the [plaintiffs] sought to make.” Although the court declined to tell the lower court just how it should conduct its trials, it declared that “when a record such as this one reveals numerous instances of what we can only regard as impatience and precipitous rulings on the part of the District Court judge, to say nothing of countless interruptions of counsel's arguments, our review function as a court of appeals is severely impaired.”
Report Not Ordered or Used By Quality Assurance Committee Is Not Privileged
A New York trial court ordered a defendant hospital to provide a copy of an incident report to the plaintiff in this medical malpractice action because the hospital could not prove that the report was privileged. Benacquista v. Mt. Sinai Hospital, Slip Copy, 2008 WL 2582659, (Table, Text in WESTLAW), Unreported Disposition, 2008 N.Y. Slip Op. 51318(U), (N.Y.Sup. 7/1/08).
The subject patient in Benacquista was inadvertently burned during surgery. He later died, allegedly because of an infection resulting from that burn. The executor of the decedent's estate brought suit and sought an order directing the defendant hospital to provide him with a copy of an incident report that was prepared in 2003 by a nurse concerning the burn incident. The nurse had taken note of the burn when it occurred and testified she brought it to the attention of a supervisor. Defense counsel, seeking to keep the report from plaintiff, argued the report was privileged as it was produced pursuant to quality assurance and control measures. In support of this contention, defendant provided the affidavit of the vice president for quality assurance, who had held that position since 2006.
The court found the hospital failed to meet its burden of showing the report was created by or at the request of a hospital quality assurance committee for the committee's use, or that it was actually used by the committee. In addition, the vice president for quality assurance did not purport to know the hospital's quality assurance practices in 2003, when the report was generated. The court therefore found the report was not privileged and granted plaintiff's motion.
Insurer Cannot Rely on Insured's Answer to Save It from Default Judgment
An insurer that did not file a timely answer to a complaint filed against it and its co-defendants ' two doctors insured by the company ' could not rely on the doctors' timely-filed answers to preclude a default judgment against it, as the insurer could be directly sued under Wisconsin law and had an independent duty to file its own answer. Estate of Otto v. Physicians Insurance Company of Wisconsin Inc., — N.W.2d —-, 2008 WL 2609164 (Wis. 7/3/08).
In this medical malpractice and wrongful death action, plaintiffs served a summons and complaint on the co-defendant doctors and on their medical malpractice insurer, Physicians Insurance Company of Wisconsin Inc. (PIC). The plaintiff's complaint alleged that PIC's insureds were negligent, but also alleged that 'Physicians Insurance Company of Wisconsin, Inc ' [is] directly liable to Plaintiffs in an amount to be proven at trial.' The doctors timely filed an answer. Although the answer was not filed or served on behalf of PIC, the answer specifically denied PIC's liability to the plaintiffs for any damages; admitted that PIC 'had at a time material hereto a policy of insurance in full force and effect which provided coverage to [the doctors and the doctors' employer] for claims of the nature alleged by the plaintiffs'; and 'specifically aver[red] that the extent of coverage provided under said policy is limited by the terms and conditions of said policy ' ' PIC, however, did not file an answer within the 45-day time prescribed in the summons. In fact, it took eight months to do so.
The plaintiff moved for judgment by default against PIC and for an order striking PIC's answer. PIC moved for an order enlarging the time to file and serve its answer. The circuit court denied PIC's motion, finding that PIC's failure to answer timely was not the result of excusable neglect. See Wis. Stat. ' (Rule) 801.15(2)(a). The circuit court then ordered that PIC's untimely answer be struck and that judgment by default be entered against it. After the other co-defendants were dismissed by stipulation from the suit, the circuit court held a hearing on damages and rendered judgment by default against PIC for the plaintif's compensatory damages, plus fees, costs, and interest. PIC appealed.
On appeal, PIC claimed that the timely answer of its co-defendant insureds denying the liability of all defendants inured to PIC so as to preclude a judgment by default against PIC notwithstanding PIC's acknowledged default. In support of this claim, PIC offered several arguments, including this one: that PIC's default could not establish its liability, because its liability was completely dependent upon the liability of its codefendant insureds (the doctors) and PIC thus could not admit by its default the negligence of its codefendant insureds.
The appellate court found PIC's argument was contrary to Wisconsin's 'direct action' statute, Wis. Stat. ' 632.24. The direct action statute provides that any liability policy covering negligence makes the insurance company liable to the person entitled to recover against the insured, up to the policy limits. Under the direct action statute, the complaining party may allege the insured's conduct, and the insurer's liability therefor, directly against the insurer. Judgment may be had directly against the insurer and payment must be made directly from the insurer to the injured party. In addition, under the statute, the insured is not a necessary party to the action brought against its insurer. In fact, the case law further established that liability could be imposed 'upon the insurer irrespective of whether there is a final judgment against the insured.' Loy v. Bunderson , 107 Wis.2d 400 (1982). The court noted that a necessary corollary of the insurer's direct liability to an injured complainant is that the insurer may admit an allegation of its liability, as well as the underlying allegation of the tortious conduct of its insured. When the action is brought directly against the insurer and the insured is not a party to the action, the insurer has the ability to admit or deny the plaintiff's allegations as the insurer sees fit.
Based on this and other reasons the Supreme Court of Wisconsin determined that the circuit court did not err as a matter of law in rendering a judgment by default against PIC for the plaintiff's damages.
