Verdicts

Arbitrator's Failure to Disclose Censure for Bias Negates Decision

A California court of appeal vacated an arbitration award in favor of a cosmetic surgeon because one of the arbitration committee's members failed to disclose to the parties that he had, while a judge, been censured by the California Supreme Court for making disparaging remarks about women and minorities. Haworth v. Superior Court, 164 Cal.App.4th 930 (Cal.App. 2 Dist.,7/10/08).

The plaintiff patient and the cosmetic surgeon against whom she lodged a complaint following lip surgery agreed to submit their dispute to an arbitration committee. The proposed arbitrators were asked to disclose any conflicts or significant other information that might influence the parties' choices of arbitrators. One of them, a former Los Angeles Superior Court judge, failed to disclose that, while on the bench, he was publicly censured by the California Supreme Court for disparaging his female employees and colleagues based on their physical attributes, sexuality, and ethnicity.

The arbitration went forward, and the arbitrators found the surgeon not liable on claims of medical malpractice and battery. However, upon learning of the former judge's previous behavior, the patient, who was female, moved to vacate the award. The respondent Superior Court so vacated.

On appeal, the court found the respondent court correctly concluded that the arbitrator's censure would have caused a reasonable person to doubt his impartiality. The appellate court thus held that the arbitration award was properly set aside and denied the petition.

Death Certificate, Along with Conclusory Opinion,
Is Not Enough

A New York court refused to allow a plaintiff to amend the caption of his case against his deceased wife's medical care providers after she died, as mere submission of a death certificate did not fulfill the requirement of submitting competent medical proof of a causal connection between the alleged medical malpractice and the deceased's death. Brown v. Kamlet, 101487/06 (Sup. Ct., NY Cty. 7/24/08).

The plaintiffs ' a woman whose lung cancer was allegedly not diagnosed due to medical malpractice, and her husband ' brought this medical malpractice action against her physician and others. Shortly after filing the case the woman died. Her widower, as administrator of her estate, moved to amend the caption to reflect her death and to amend the complaint to add a cause of action for wrongful death. In support of his motion, he submitted the affidavit of a medical expert. That affidavit stated that, based upon a review of “the medical records of the defendants to the within action and Death Certificate of [the deceased] ' it is [the expert's] opinion within a reasonable degree of medical certainty that defendant physicians failed to timely diagnose Stage III, non-small cell lung cancer (right lower lobe, pleural), and that this failure was a deviation from accepted medical practice amounting to medical malpractice.” Plaintiff's expert did not describe the medical records he reviewed prior to forming his opinion, and he did not specify what actions by the defendants constituted a departure from the standard of care. The expert did state “that [the deceased] died as a result of the lung cancer from which she suffered” and “that the lung cancer was the proximate cause of death of [the deceased] as a result of the progression of the initial disease which the defendants failed to diagnose.”

The court ruled that the wording of the physician's affidavit did not adequately describe the causal connection between the alleged malpractice and the death of the woman, so it denied leave to amend the medical malpractice complaint to assert a cause of action for wrongful death.

No Excuse for Late Filing

A California trail court erred in excusing a delay in filing a motion to amend a complaint to include a claim for punitive damages as the moving plaintiff had not met the requirements for waiver of the statutory time limitation. Freedman v. Superior Court (Charbonneau) (C.A. 4th 8/22/08) 08 C.D.O.S. 11326.

The petitioning physician (hereafter defendant) in a medical malpractice action sought a writ of mandate from the appellate court ordering the trial court to vacate its order granting the plaintiff's motion to amend his complaint to add a punitive damages claim. The defendant based his objection on the fact that the motion to amend the complaint had come outside the statutorily allowed period for such motions. The law that allows such motions is California Code of Civil Procedure, Section 425.13(a), which provides: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed '. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” Pursuant to the five-part test set forth in Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635, the trail court had excused the plaintiff from the statutory deadline requiring him to file his motion no later than nine months before the first scheduled trial date. That test says a plaintiff may be excused from the nine-month lead time filing requirement if: 1) he was unaware of the facts or evidence necessary to make a proper motion under
section 425.13 more than nine months prior to the first assigned trial date; 2) he made diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support such a motion more than nine months prior to the first assigned trial date; 3) after assignment of the trial date he made reasonable, diligent and good faith efforts to complete the necessary discovery; 4) he filed his motion under section 425.13 as soon as reasonably practicable after completing such discovery (but in no event more than two years after the filing of his initial complaint); and 5) the defendant will suffer no surprise or prejudice by reason of any shortened time period and will be given every reasonable opportunity to complete all necessary discovery in order to prepare to meet the plaintiff's punitive damage allegations.

The trial court had eliminated any prejudice to defendant by continuing the trial date and extending the discovery cutoff to provide time for additional discovery and a summary judgment motion. Although the court here found this resolution of the case facially reasonable, it determined that the ruling must be set aside in deference to the deadline established by the legislature because the plaintiff here “faced none of the obstacles encountered by the Goodstein plaintiff. Nothing suggests anyone but the judge presided over the March 15, 2007 case management conference and set the trial date. The record contains no indication plaintiff objected to the trial date, requested a later trial date, or in any way acknowledged the looming statutory deadline. Nor does it point toward anything excusing plaintiff's failure to do so. Moreover, the court set a trial date of Feb. 11, 2008, giving plaintiff nearly two full months to file a motion before the nine-month deadline.” Plaintiff failed to meet two prongs of the Goodstein test; specifically, he knew sufficient facts to file the motion before the statutory deadline and he did not conduct reasonably diligent discovery before the deadline. Thus, the writ of relief was granted.

Arbitrator's Failure to Disclose Censure for Bias Negates Decision

A California court of appeal vacated an arbitration award in favor of a cosmetic surgeon because one of the arbitration committee's members failed to disclose to the parties that he had, while a judge, been censured by the California Supreme Court for making disparaging remarks about women and minorities. Haworth v. Superior Court , 164 Cal.App.4th 930 (Cal.App. 2 Dist.,7/10/08).

The plaintiff patient and the cosmetic surgeon against whom she lodged a complaint following lip surgery agreed to submit their dispute to an arbitration committee. The proposed arbitrators were asked to disclose any conflicts or significant other information that might influence the parties' choices of arbitrators. One of them, a former Los Angeles Superior Court judge, failed to disclose that, while on the bench, he was publicly censured by the California Supreme Court for disparaging his female employees and colleagues based on their physical attributes, sexuality, and ethnicity.

The arbitration went forward, and the arbitrators found the surgeon not liable on claims of medical malpractice and battery. However, upon learning of the former judge's previous behavior, the patient, who was female, moved to vacate the award. The respondent Superior Court so vacated.

On appeal, the court found the respondent court correctly concluded that the arbitrator's censure would have caused a reasonable person to doubt his impartiality. The appellate court thus held that the arbitration award was properly set aside and denied the petition.

Death Certificate, Along with Conclusory Opinion,
Is Not Enough

A New York court refused to allow a plaintiff to amend the caption of his case against his deceased wife's medical care providers after she died, as mere submission of a death certificate did not fulfill the requirement of submitting competent medical proof of a causal connection between the alleged medical malpractice and the deceased's death. Brown v. Kamlet, 101487/06 (Sup. Ct., NY Cty. 7/24/08).

The plaintiffs ' a woman whose lung cancer was allegedly not diagnosed due to medical malpractice, and her husband ' brought this medical malpractice action against her physician and others. Shortly after filing the case the woman died. Her widower, as administrator of her estate, moved to amend the caption to reflect her death and to amend the complaint to add a cause of action for wrongful death. In support of his motion, he submitted the affidavit of a medical expert. That affidavit stated that, based upon a review of “the medical records of the defendants to the within action and Death Certificate of [the deceased] ' it is [the expert's] opinion within a reasonable degree of medical certainty that defendant physicians failed to timely diagnose Stage III, non-small cell lung cancer (right lower lobe, pleural), and that this failure was a deviation from accepted medical practice amounting to medical malpractice.” Plaintiff's expert did not describe the medical records he reviewed prior to forming his opinion, and he did not specify what actions by the defendants constituted a departure from the standard of care. The expert did state “that [the deceased] died as a result of the lung cancer from which she suffered” and “that the lung cancer was the proximate cause of death of [the deceased] as a result of the progression of the initial disease which the defendants failed to diagnose.”

The court ruled that the wording of the physician's affidavit did not adequately describe the causal connection between the alleged malpractice and the death of the woman, so it denied leave to amend the medical malpractice complaint to assert a cause of action for wrongful death.

No Excuse for Late Filing

A California trail court erred in excusing a delay in filing a motion to amend a complaint to include a claim for punitive damages as the moving plaintiff had not met the requirements for waiver of the statutory time limitation. Freedman v. Superior Court (Charbonneau) (C.A. 4th 8/22/08) 08 C.D.O.S. 11326.

The petitioning physician (hereafter defendant) in a medical malpractice action sought a writ of mandate from the appellate court ordering the trial court to vacate its order granting the plaintiff's motion to amend his complaint to add a punitive damages claim. The defendant based his objection on the fact that the motion to amend the complaint had come outside the statutorily allowed period for such motions. The law that allows such motions is California Code of Civil Procedure, Section 425.13(a), which provides: “In any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included in a complaint or other pleading unless the court enters an order allowing an amended pleading that includes a claim for punitive damages to be filed '. The court shall not grant a motion allowing the filing of an amended pleading that includes a claim for punitive damages if the motion for such an order is not filed within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier.” Pursuant to the five-part test set forth in Goodstein v. Superior Court (1996) 42 Cal.App.4th 1635, the trail court had excused the plaintiff from the statutory deadline requiring him to file his motion no later than nine months before the first scheduled trial date. That test says a plaintiff may be excused from the nine-month lead time filing requirement if: 1) he was unaware of the facts or evidence necessary to make a proper motion under
section 425.13 more than nine months prior to the first assigned trial date; 2) he made diligent, reasonable and good faith efforts to discover the necessary facts or evidence to support such a motion more than nine months prior to the first assigned trial date; 3) after assignment of the trial date he made reasonable, diligent and good faith efforts to complete the necessary discovery; 4) he filed his motion under section 425.13 as soon as reasonably practicable after completing such discovery (but in no event more than two years after the filing of his initial complaint); and 5) the defendant will suffer no surprise or prejudice by reason of any shortened time period and will be given every reasonable opportunity to complete all necessary discovery in order to prepare to meet the plaintiff's punitive damage allegations.

The trial court had eliminated any prejudice to defendant by continuing the trial date and extending the discovery cutoff to provide time for additional discovery and a summary judgment motion. Although the court here found this resolution of the case facially reasonable, it determined that the ruling must be set aside in deference to the deadline established by the legislature because the plaintiff here “faced none of the obstacles encountered by the Goodstein plaintiff. Nothing suggests anyone but the judge presided over the March 15, 2007 case management conference and set the trial date. The record contains no indication plaintiff objected to the trial date, requested a later trial date, or in any way acknowledged the looming statutory deadline. Nor does it point toward anything excusing plaintiff's failure to do so. Moreover, the court set a trial date of Feb. 11, 2008, giving plaintiff nearly two full months to file a motion before the nine-month deadline.” Plaintiff failed to meet two prongs of the Goodstein test; specifically, he knew sufficient facts to file the motion before the statutory deadline and he did not conduct reasonably diligent discovery before the deadline. Thus, the writ of relief was granted.