Verdicts

Parties Cannot Cut Department of Public Welfare Out

The Commonwealth Court of Pennsylvania rejected the Superior Court's view that a minor's action may not seek past medical expenses as damages, reversing the trial court's decision to overrule the Department of Public Welfare's objections to a settlement of a minor's action. Jordan v. Western Pennsylvania Hospital, — A.2d —-, 2008 WL 4831303, Pa.Cmwlth., Nov. 10, 2008 (NO. 346 CD 2008).

Plaintiffs' minor child had a traumatic birth at the defendant hospital. Eight years later, the parents brought an action in the child's name alleging malpractice that caused the child's cerebral palsy and several other conditions. Plaintiffs' counsel notified the Department of Public Welfare (DPW) of the suit, and the DPW replied that counsel should keep it informed of the case's developments. The DPW had a lien for past medical expenses incurred for the child under state medical assistance.

Later, when the defendant moved in limine to exclude the child's past medical payments as an item of damages, plaintiff's counsel did not oppose the motion in reliance on Bowmeister v. Clair, 933 A.2d 86 (Pa. Super. 2007), which held such expenses were damages to the child but the responsibility of the parents, and only parents had a right to recover them. The parents made no such claim in this case. The DPW was not notified about the motion, although under the rule of the U.S. Supreme Court decision in Arkansas Dept. of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006), only the DPW could seek to satisfy its lien from damage awards for medical expenses.

Plaintiffs later reached a high-low settlement agreement with the defendant, in which the minimum settlement was for $10 million and the maximum for $23 million, depending on a subsequent jury verdict. The DPW again was not notified.

The jury awarded plaintiffs $57 million, but pursuant to the settlement the parties sought court approval of a settlement for the minor at $23 million, none of which was attributable to damages for medical expenses. The DPW was finally notified of the settlement, and it objected. The court overruled, since its ruling on the motion in limine excluded the DPW's claims.

The Commonwealth Court reversed. It held that the DPW should have been notified at the time of the motion in limine, at which time it could have argued that the motion should not be granted because the Superior Court's ruling was wrong. In fact, the Commonwealth Court itself has held that, contrary to the Superior Court's view, past medical expenses are proper damages in a minor's action, in Shaffer-Doan v. Dept. of Public Welfare, filed on Nov. 3, 2008. The DPW was prejudiced by being deprived of its right. Accordingly, the Commonwealth Court remanded for the trial court to reconsider the DPW's objections.

Appeal Bond Must Cover Full Present Value of Judgment

California's Second Appellate District denied a petition for writ of supersedeas, holding that a Code Civ. Proc. ' 917.1 appeal bond amount was properly calculated at 1.5 times the lump-sum present value of a ' 667.7 periodic-payments medical malpractice judgment against a hospital, rather than 1.5 times that portion of the judgment currently due or that might come due during the appeal. Leung v. Verdugo Hills Hospital, 85 Cal.Rptr.3d 203 (C.A. 2 Dist., 11/13/08).

Aidan Leung was born at Verdugo Hills Hospital showing symptoms of neonatal jaundice. The hospital failed to provide his parents sufficient warnings and information about the condition. Leung sued the hospital and a physician for professional negligence and a jury found for the plaintiff, awarding damages totaling more than $96 million.

The trial court entered a periodic-payments judgment pursuant to Code Civ. Proc. ' 667.7, directing monthly payments over nearly 60 years. The court ordered the hospital to secure the payments with a surety bond or an annuity, or pay Leung the $14.8 million present judgment value.

When the hospital appealed the judgment, Calif. Code Civ. Proc. ' 917.1 required the hospital to post an appeal bond in the amount of 1.5 times the present judgment value. The hospital petitioned for writ of supersedeas, contending the proper amount was 1.5 times the amounts of the judgment presently due and likely to come due during the appeal, which the appellate court summarily denied.

The hospital posted the required appeal bond, but also purchased an annuity, and moved to substitute a lesser bond, figured as 1.5 times that portion of the judgment currently due or that may come due during the appeal, which the trial court denied. The hospital again petitioned in supersedeas.

The Second Appellate District Court found that requiring the undisputed lump-sum present-value judgment amount to be bonded was consistent with ' 917.1's purpose, since it assured that the entire judgment would not become uncollectible were the hospital to become insolvent. Section 667.7 did not transform the judgment's present value into a judgment of lesser value for purposes of ' 917.1 calculation. Rather, it simply provided an alternative method for paying the damages. Further, the court found, the annuity did not reduce the amount of the judgment pending appeal, it merely effectuated a specified alternative method to satisfy the judgment. Moreover, the intent behind ' 667.7 is to reduce the amount of liquid reserves necessary to pay out sizable lump sum judgments, not simply to reduce the amount necessary to secure an appellate undertaking to stay enforcement of such a judgment.

Alleged False Statements Implicate Professional
Judgment Questions

A claim that a doctor made false statements in a medical report memorializing an emergency room (ER) visit sounded like medical malpractice, so the claim could not go forward under Indiana law absent review by a medical panel. Popovich v. Danielson, — N.E.2d —-, 2008 WL 5006525 (Ind.App., 11/26/08).

The plaintiff claimed that the ER doctor who saw her following an automobile accident was rude and dismissive of her pain, and he refused to give her pain medication. She said the doctor manhandled her, causing her to ask that he stop treating her. In retaliation, she claimed, the doctor falsely stated in his written report of plaintiff's ER visit that she was intoxicated, had not been wearing a seatbelt and was disruptive in the ER. Plaintiff brought suit for, inter alia, defamation. She did not caption her claims as sounding in medical malpractice.

The doctor moved to dismiss because the plaintiff “failed to obtain an opinion rendered by a medical review panel before filing her complaint.” After a hearing, the court dismissed the complaint. The plaintiff appealed.

The appellate court noted that, in determining whether a claim sounds in medical malpractice, the test is whether the claim is based on the provider's behavior or practices while acting in his professional capacity as a provider of medical services. Here, the plaintiff asserted the doctor “deliberately misrepresented and falsified” her physical and mental conditions because the plaintiff rejected the doctor as her attending physician. However, the court said, “the record contains evidence suggesting [the plaintiff] was injured when she was driving without a seatbelt and after consuming alcohol. Whether [the doctor] should have concluded, after reading [the plaintiff's] medical chart and without doing his own assessment, that [the plaintiff] crashed while drunk,” questioned his exercise of professional expertise, skill, or judgment. Accordingly, the claim fell under Indiana's Medical Malpractice Act, and plaintiff's claim could not be heard by a court until a medical review panel had heard it. Therefore, the claim was properly dismissed, without prejudice, by the trial court.

Parties Cannot Cut Department of Public Welfare Out

The Commonwealth Court of Pennsylvania rejected the Superior Court's view that a minor's action may not seek past medical expenses as damages, reversing the trial court's decision to overrule the Department of Public Welfare's objections to a settlement of a minor's action. Jordan v. Western Pennsylvania Hospital, — A.2d —-, 2008 WL 4831303, Pa.Cmwlth., Nov. 10, 2008 (NO. 346 CD 2008).

Plaintiffs' minor child had a traumatic birth at the defendant hospital. Eight years later, the parents brought an action in the child's name alleging malpractice that caused the child's cerebral palsy and several other conditions. Plaintiffs' counsel notified the Department of Public Welfare (DPW) of the suit, and the DPW replied that counsel should keep it informed of the case's developments. The DPW had a lien for past medical expenses incurred for the child under state medical assistance.

Later, when the defendant moved in limine to exclude the child's past medical payments as an item of damages, plaintiff's counsel did not oppose the motion in reliance on Bowmeister v. Clair , 933 A.2d 86 (Pa. Super. 2007), which held such expenses were damages to the child but the responsibility of the parents, and only parents had a right to recover them. The parents made no such claim in this case. The DPW was not notified about the motion, although under the rule of the U.S. Supreme Court decision in Arkansas Dept. of Health and Human Services v. Ahlborn , 547 U.S. 268 (2006), only the DPW could seek to satisfy its lien from damage awards for medical expenses.

Plaintiffs later reached a high-low settlement agreement with the defendant, in which the minimum settlement was for $10 million and the maximum for $23 million, depending on a subsequent jury verdict. The DPW again was not notified.

The jury awarded plaintiffs $57 million, but pursuant to the settlement the parties sought court approval of a settlement for the minor at $23 million, none of which was attributable to damages for medical expenses. The DPW was finally notified of the settlement, and it objected. The court overruled, since its ruling on the motion in limine excluded the DPW's claims.

The Commonwealth Court reversed. It held that the DPW should have been notified at the time of the motion in limine, at which time it could have argued that the motion should not be granted because the Superior Court's ruling was wrong. In fact, the Commonwealth Court itself has held that, contrary to the Superior Court's view, past medical expenses are proper damages in a minor's action, in Shaffer-Doan v. Dept. of Public Welfare, filed on Nov. 3, 2008. The DPW was prejudiced by being deprived of its right. Accordingly, the Commonwealth Court remanded for the trial court to reconsider the DPW's objections.

Appeal Bond Must Cover Full Present Value of Judgment

California's Second Appellate District denied a petition for writ of supersedeas, holding that a Code Civ. Proc. ' 917.1 appeal bond amount was properly calculated at 1.5 times the lump-sum present value of a ' 667.7 periodic-payments medical malpractice judgment against a hospital, rather than 1.5 times that portion of the judgment currently due or that might come due during the appeal. Leung v. Verdugo Hills Hospital , 85 Cal.Rptr.3d 203 (C.A. 2 Dist., 11/13/08).

Aidan Leung was born at Verdugo Hills Hospital showing symptoms of neonatal jaundice. The hospital failed to provide his parents sufficient warnings and information about the condition. Leung sued the hospital and a physician for professional negligence and a jury found for the plaintiff, awarding damages totaling more than $96 million.

The trial court entered a periodic-payments judgment pursuant to Code Civ. Proc. ' 667.7, directing monthly payments over nearly 60 years. The court ordered the hospital to secure the payments with a surety bond or an annuity, or pay Leung the $14.8 million present judgment value.

When the hospital appealed the judgment, Calif. Code Civ. Proc. ' 917.1 required the hospital to post an appeal bond in the amount of 1.5 times the present judgment value. The hospital petitioned for writ of supersedeas, contending the proper amount was 1.5 times the amounts of the judgment presently due and likely to come due during the appeal, which the appellate court summarily denied.

The hospital posted the required appeal bond, but also purchased an annuity, and moved to substitute a lesser bond, figured as 1.5 times that portion of the judgment currently due or that may come due during the appeal, which the trial court denied. The hospital again petitioned in supersedeas.

The Second Appellate District Court found that requiring the undisputed lump-sum present-value judgment amount to be bonded was consistent with ' 917.1's purpose, since it assured that the entire judgment would not become uncollectible were the hospital to become insolvent. Section 667.7 did not transform the judgment's present value into a judgment of lesser value for purposes of ' 917.1 calculation. Rather, it simply provided an alternative method for paying the damages. Further, the court found, the annuity did not reduce the amount of the judgment pending appeal, it merely effectuated a specified alternative method to satisfy the judgment. Moreover, the intent behind ' 667.7 is to reduce the amount of liquid reserves necessary to pay out sizable lump sum judgments, not simply to reduce the amount necessary to secure an appellate undertaking to stay enforcement of such a judgment.

Alleged False Statements Implicate Professional
Judgment Questions

A claim that a doctor made false statements in a medical report memorializing an emergency room (ER) visit sounded like medical malpractice, so the claim could not go forward under Indiana law absent review by a medical panel. Popovich v. Danielson, — N.E.2d —-, 2008 WL 5006525 (Ind.App., 11/26/08).

The plaintiff claimed that the ER doctor who saw her following an automobile accident was rude and dismissive of her pain, and he refused to give her pain medication. She said the doctor manhandled her, causing her to ask that he stop treating her. In retaliation, she claimed, the doctor falsely stated in his written report of plaintiff's ER visit that she was intoxicated, had not been wearing a seatbelt and was disruptive in the ER. Plaintiff brought suit for, inter alia, defamation. She did not caption her claims as sounding in medical malpractice.

The doctor moved to dismiss because the plaintiff “failed to obtain an opinion rendered by a medical review panel before filing her complaint.” After a hearing, the court dismissed the complaint. The plaintiff appealed.

The appellate court noted that, in determining whether a claim sounds in medical malpractice, the test is whether the claim is based on the provider's behavior or practices while acting in his professional capacity as a provider of medical services. Here, the plaintiff asserted the doctor “deliberately misrepresented and falsified” her physical and mental conditions because the plaintiff rejected the doctor as her attending physician. However, the court said, “the record contains evidence suggesting [the plaintiff] was injured when she was driving without a seatbelt and after consuming alcohol. Whether [the doctor] should have concluded, after reading [the plaintiff's] medical chart and without doing his own assessment, that [the plaintiff] crashed while drunk,” questioned his exercise of professional expertise, skill, or judgment. Accordingly, the claim fell under Indiana's Medical Malpractice Act, and plaintiff's claim could not be heard by a court until a medical review panel had heard it. Therefore, the claim was properly dismissed, without prejudice, by the trial court.