Verdicts

Texas Says No Mandamus Review for Deficient Med-Mal Expert Reports

The Texas Supreme Court has decided that appellate courts may not grant mandamus of trial court rulings that grant time extensions to medical malpractice plaintiffs to correct deficient expert reports. In re Watkins, — S.W.3d —-, 2009 WL 153251 (Tex., 1/23/09).

Plaintiff Gary Jones sued Dr. Mary Louise Watkins, alleging she injured his eye while she was treating a lesion on his face. Within 120 days of filing, he served what he purported to be an expert report. Dr. Watkins objected that the report was deficient. Indeed, the trial judge found that the report was merely an account of the treatment Jones had received and should receive in future. It failed to address the standard of care and the issues of breach and causation. Despite the doctor's objections, the trial court granted a 30-day extension. Jones filed a new report, which Dr. Watkins did not challenge. Instead, the defendant filed an interlocutory appeal and an original proceeding in the court of appeals asserting the trial court abused its discretion in granting an extension, and seeking an order of dismissal. The court of appeals dismissed the interlocutory appeal for want of jurisdiction and denied mandamus relief. Dr. Watkins appealed only the denial or mandamus relief, and asked the Texas Supreme Court to order dismissal of the case.

The state's legislature passed a sweeping tort reform bill a few years ago that, among other things, placed limitations on when an interlocutory appeal could be taken. The law allows for interlocutory appeal when no expert report is filed in a medical malpractice case. A right to appeal is not provided for when a deficient report is filed. Texas' Supreme Court thus concluded that if it granted mandamus review, it would be going against the will of the legislature's limits on review. “If no report was served, interlocutory appeal was available, so mandamus is unnecessary,” stated the court. “If the report was merely deficient, then an interlocutory appeal was prohibited, and granting mandamus to review it would subvert the Legislature's limit on such review.”

Some of the concurring opinions took note of the fact that almost nothing required of a medical expert's report was present in the report Jones submitted to the court. They posed the question: At what point is an expert's report so deficient that it ought to be considered no report at all? If the court could treat an extremely deficient report as no report shouldn't this clear the way for an appeal?

Veterans' Judicial Review Act Leaves District Court Without Jurisdiction

The U.S. Court of Appeals for the Eighth Circuit determined that the district court correctly granted summary judgment for lack of jurisdiction in a case in which an aggrieved veteran claimed his constitutional and other rights were denied by a delayed diagnosis. Mehrkens v. Blank, — F.3d —-, 2009 WL 454720 (C.A.8 (Minn.), 2/25/09).

Vietnam war veteran Kent Mehrkens sought treatment beginning in 1992 from the Minneapolis VA Medical Center after experiencing “a loss of conscious control of his actions.” He was not given a diagnosis of Post Traumatic Stress Disorder (PTSD) and was denied benefits for more than ten years, despite several attempts by Mehrkens to obtain such diagnosis. In 2003, Mehrkens filed a Notice of Disagreement with these prior decisions. Upon review, the VA reversed itself and granted VA benefits to Mehrkens for PTSD, retroactive to 1992. That same year Mehrkens was issued two payments for retroactive benefits totaling $216,246. Mehrkens currently receives $2,610 monthly in benefits payments.

In 2004, after being granted his retroactive payments, Mehrkens filed a claim with the VA under the Federal Tort Claims Act for medical malpractice and negligence. He subsequently brought action in state court against various doctors and an employee of the Department of Veterans Affairs (VA) seeking damages under 42 U.S.C. ” 1983 (deprivation of civil rights) and 1985 (conspiracy to interfere with civil rights), as well as tort claims. He alleged in his suit that physicians at the VA diagnosed him with Post Traumatic Stress Disorder (PTSD), but intentionally withheld this information from him and failed to provide treatment for this condition. Following removal from state court, the U.S. District Court for the District of Minnesota granted defendant's motion for summary judgment, finding that because the Veterans' Judicial Review Act of 1988 (VJRA), 38 U.S.C. ' 511(a) created an exclusive review procedure for veterans to resolve their disputes, it lacked jurisdiction over Mehrkens's claims ' this despite the fact that Mehrkens contended his claims sounded in constitutional and tort law. The district court found that Mehrkens was essentially challenging a decision affecting his benefits by bringing a constitutional claim, and that because he was really challenging the VA's actions taken in connection with his claim for benefits, his suit amounted to a challenge to the underlying benefits decision. Thus, the district court concluded its jurisdiction was preempted by the VJRA.

The Eighth Circuit Court of Appeals agreed with the district court and upheld the dismissal of the case.

No Appeal from Merit Tribunal's Decision

The Appeals Court of Massachusetts, Essex, denied a dentist's attempt to obtain judicial review of a medical malpractice tribunal's report that found merit in the plaintiff's claim, as Massachussetts law does not permit interlocutory appeal of such proceedings absent judicial permission. Ruggiero v. Giamarco, — N.E.2d —-, 2009 WL 456578 (Mass.App.Ct., 2/26/09).

Plaintiff Ann Marie Ruggiero filed a small claims action in the Peabody District Court alleging negligence on the part of Matteo L. Giamarco, D.M.D. Giamarco moved to refer the case to the Essex County Superior Court for a medical malpractice tribunal to review its the merits, pursuant to General Law (G.L.) c. 231 ' 60B. The tribunal concluded that the complaint had merit. Giamarco then filed a petition with a single justice of the appeals court seeking interlocutory review of the tribunal's decision, as permitted by G.L. c. 231 ' 118 (first par.). The single justice denied Giamarco's petition and declined to grant leave to take an interlocutory appeal. Giamarco next sought to appeal directly from the tribunal order entered in the Superior Court.

The appellate court noted that the purpose of the statute establishing the medical tribunal was to screen complaints in order to discourage frivolous claims. The statute thus treats claims against health-care providers differently from all other civil actions by requiring them to pass a preliminary threshold of apparent merit, failing which the plaintiff must post a bond as security against costs of “witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment.” G.L. c. 231 ' 60B. The statute makes no provision for interlocutory appellate appraisal of the tribunal's decision, although it does allow a health-care provider aggrieved by a tribunal decision to obtain interlocutory appellate review of that decision in the discretion of a single justice. G.L. c. 231 ' 118. However, on appeal, having failed to obtain leave from the single justice, Giamarco contended that he was nonetheless entitled to appellate review as of right under the doctrine of present execution. Under that doctrine, immediate appeal of an interlocutory order is permitted if the order appealed from is “collateral” to the merits of the controversy and interferes with rights in a way that cannot be remedied on appeal from the final judgment. See Fabre v. Walton, 436 Mass. 517 (2002). The court found, however, that the tribunal's decision that Ruggiero's complaint and offer of proof raised a legitimate question of liability appropriate for judicial inquiry was not “collateral” to the merits of her action. It was, in fact, at the heart of the merits of that action. Therefore, the court dismissed the appeal.

Texas Says No Mandamus Review for Deficient Med-Mal Expert Reports

The Texas Supreme Court has decided that appellate courts may not grant mandamus of trial court rulings that grant time extensions to medical malpractice plaintiffs to correct deficient expert reports. In re Watkins, — S.W.3d —-, 2009 WL 153251 (Tex., 1/23/09).

Plaintiff Gary Jones sued Dr. Mary Louise Watkins, alleging she injured his eye while she was treating a lesion on his face. Within 120 days of filing, he served what he purported to be an expert report. Dr. Watkins objected that the report was deficient. Indeed, the trial judge found that the report was merely an account of the treatment Jones had received and should receive in future. It failed to address the standard of care and the issues of breach and causation. Despite the doctor's objections, the trial court granted a 30-day extension. Jones filed a new report, which Dr. Watkins did not challenge. Instead, the defendant filed an interlocutory appeal and an original proceeding in the court of appeals asserting the trial court abused its discretion in granting an extension, and seeking an order of dismissal. The court of appeals dismissed the interlocutory appeal for want of jurisdiction and denied mandamus relief. Dr. Watkins appealed only the denial or mandamus relief, and asked the Texas Supreme Court to order dismissal of the case.

The state's legislature passed a sweeping tort reform bill a few years ago that, among other things, placed limitations on when an interlocutory appeal could be taken. The law allows for interlocutory appeal when no expert report is filed in a medical malpractice case. A right to appeal is not provided for when a deficient report is filed. Texas' Supreme Court thus concluded that if it granted mandamus review, it would be going against the will of the legislature's limits on review. “If no report was served, interlocutory appeal was available, so mandamus is unnecessary,” stated the court. “If the report was merely deficient, then an interlocutory appeal was prohibited, and granting mandamus to review it would subvert the Legislature's limit on such review.”

Some of the concurring opinions took note of the fact that almost nothing required of a medical expert's report was present in the report Jones submitted to the court. They posed the question: At what point is an expert's report so deficient that it ought to be considered no report at all? If the court could treat an extremely deficient report as no report shouldn't this clear the way for an appeal?

Veterans' Judicial Review Act Leaves District Court Without Jurisdiction

The U.S. Court of Appeals for the Eighth Circuit determined that the district court correctly granted summary judgment for lack of jurisdiction in a case in which an aggrieved veteran claimed his constitutional and other rights were denied by a delayed diagnosis. Mehrkens v. Blank, — F.3d —-, 2009 WL 454720 (C.A.8 (Minn.), 2/25/09).

Vietnam war veteran Kent Mehrkens sought treatment beginning in 1992 from the Minneapolis VA Medical Center after experiencing “a loss of conscious control of his actions.” He was not given a diagnosis of Post Traumatic Stress Disorder (PTSD) and was denied benefits for more than ten years, despite several attempts by Mehrkens to obtain such diagnosis. In 2003, Mehrkens filed a Notice of Disagreement with these prior decisions. Upon review, the VA reversed itself and granted VA benefits to Mehrkens for PTSD, retroactive to 1992. That same year Mehrkens was issued two payments for retroactive benefits totaling $216,246. Mehrkens currently receives $2,610 monthly in benefits payments.

In 2004, after being granted his retroactive payments, Mehrkens filed a claim with the VA under the Federal Tort Claims Act for medical malpractice and negligence. He subsequently brought action in state court against various doctors and an employee of the Department of Veterans Affairs (VA) seeking damages under 42 U.S.C. ” 1983 (deprivation of civil rights) and 1985 (conspiracy to interfere with civil rights), as well as tort claims. He alleged in his suit that physicians at the VA diagnosed him with Post Traumatic Stress Disorder (PTSD), but intentionally withheld this information from him and failed to provide treatment for this condition. Following removal from state court, the U.S. District Court for the District of Minnesota granted defendant's motion for summary judgment, finding that because the Veterans' Judicial Review Act of 1988 (VJRA), 38 U.S.C. ' 511(a) created an exclusive review procedure for veterans to resolve their disputes, it lacked jurisdiction over Mehrkens's claims ' this despite the fact that Mehrkens contended his claims sounded in constitutional and tort law. The district court found that Mehrkens was essentially challenging a decision affecting his benefits by bringing a constitutional claim, and that because he was really challenging the VA's actions taken in connection with his claim for benefits, his suit amounted to a challenge to the underlying benefits decision. Thus, the district court concluded its jurisdiction was preempted by the VJRA.

The Eighth Circuit Court of Appeals agreed with the district court and upheld the dismissal of the case.

No Appeal from Merit Tribunal's Decision

The Appeals Court of Massachusetts, Essex, denied a dentist's attempt to obtain judicial review of a medical malpractice tribunal's report that found merit in the plaintiff's claim, as Massachussetts law does not permit interlocutory appeal of such proceedings absent judicial permission. Ruggiero v. Giamarco, — N.E.2d —-, 2009 WL 456578 (Mass.App.Ct., 2/26/09).

Plaintiff Ann Marie Ruggiero filed a small claims action in the Peabody District Court alleging negligence on the part of Matteo L. Giamarco, D.M.D. Giamarco moved to refer the case to the Essex County Superior Court for a medical malpractice tribunal to review its the merits, pursuant to General Law (G.L.) c. 231 ' 60B. The tribunal concluded that the complaint had merit. Giamarco then filed a petition with a single justice of the appeals court seeking interlocutory review of the tribunal's decision, as permitted by G.L. c. 231 ' 118 (first par.). The single justice denied Giamarco's petition and declined to grant leave to take an interlocutory appeal. Giamarco next sought to appeal directly from the tribunal order entered in the Superior Court.

The appellate court noted that the purpose of the statute establishing the medical tribunal was to screen complaints in order to discourage frivolous claims. The statute thus treats claims against health-care providers differently from all other civil actions by requiring them to pass a preliminary threshold of apparent merit, failing which the plaintiff must post a bond as security against costs of “witness and experts fees and attorneys fees if the plaintiff does not prevail in the final judgment.” G.L. c. 231 ' 60B. The statute makes no provision for interlocutory appellate appraisal of the tribunal's decision, although it does allow a health-care provider aggrieved by a tribunal decision to obtain interlocutory appellate review of that decision in the discretion of a single justice. G.L. c. 231 ' 118. However, on appeal, having failed to obtain leave from the single justice, Giamarco contended that he was nonetheless entitled to appellate review as of right under the doctrine of present execution. Under that doctrine, immediate appeal of an interlocutory order is permitted if the order appealed from is “collateral” to the merits of the controversy and interferes with rights in a way that cannot be remedied on appeal from the final judgment. See Fabre v. Walton , 436 Mass. 517 (2002). The court found, however, that the tribunal's decision that Ruggiero's complaint and offer of proof raised a legitimate question of liability appropriate for judicial inquiry was not “collateral” to the merits of her action. It was, in fact, at the heart of the merits of that action. Therefore, the court dismissed the appeal.