Verdicts

Action Seeking Declaration Concerning Insurer's Obligation Is Premature

A court, asked by the plaintiff in an underlying action to render a declaratory judgment concerning a mental health caregiver's right to defense and indemnification from his insurer, properly dismissed the action, as the plaintiff in the underlying action lacked standing and the issue was not yet ripe for adjudication. Hamilton v. United Services Auto. Ass'n, 115 Conn.App. 774, — A.2d —-, 2009 WL 2047050 (Conn.App., 7/21/09).

In the underlying action, the conservator of the plaintiff's estate brought suit against the plaintiff's licensed professional counselor, John E. Thorson. The complaint in that action alleged that, while Thorson was treating the victim in his home for a variety of emotional and mental health issues, he failed to maintain professional boundaries. This situation purportedly lead to his sexually exploiting the victim over a period of years, causing her severe and permanent emotional distress. During the course of discovery in the underlying action, plaintiff learned that the defendant insurance company had issued a homeowner's liability insurance policy to Thorson but disclaimed any duty to defend or to indemnify him in the action. This fact was crucial to the plaintiff's case because the alleged victim's conservator did not wish to put her through the potential embarrassment and other mental and emotional strains of trial if there was to be no insurance coverage from which she could recover compensation.

With this background, the present declaratory judgment action was brought seeking a ruling from the court concerning whether the insurer, United Services Auto Assoc., had a duty to defend and indemnify Thorson. The defendant insurer filed a motion to dismiss, claiming that the court lacked subject matter jurisdiction because, inter alia: 1) the plaintiff did not have standing to bring the action; and 2) the claim was not yet ripe for adjudication. The hearing court granted the motion to dismiss, concluding that: 1) although the defendant insurance company might be liable to pay the claim against Thorson, the amended complaint did not allege that the defendant and Thorson intended the defendant to assume a direct obligation to the plaintiff, and, therefore, she lacked standing to bring the action; and 2) the action was not ripe because there had as yet been no determination in the Thorson action that Thorson was liable to the plaintiff for professional negligence.

The Appellate Court of Connecticut affirmed, finding that the evidence the plaintiff would present in Thorson, and the jury's findings based on that evidence, were not yet known. Said the court, “Until the evidence is known, as well as the jury's verdict with respect to those allegations, it is not possible to determine whether the defendant is obligated to indemnify Thorson. The action therefore seeks the answer to a hypothetical question, which is not the purpose of a declaratory judgment action.” As to the issue of ripeness, the court said, “Here, the plaintiff's claims are not yet ripe because they are contingent on the outcome of the Thorson action. We decline to accept the plaintiff's request that the trial court issue, in a factual vacuum, what would in effect be an advisory opinion.” Therefore, the defendant's motion to dismiss was properly granted.

NJ Supreme Court Throws Out $71.8 Million Med-Mal Award

New Jersey's Supreme Court nullified a $71.8 million medical malpractice award made to the family of a brain-injured baby, finding that the jury selection process had been tainted by a voir dire process that could have influenced prospective jurors and that the trial judge's favoritism toward the plaintiffs rendered the trial completely unfair to the defense. Pellicer ex rel. Pellicer v. St. Barnabas Hosp., — A.2d —-, 2009 WL 2185492 (N.J., 7/23/09).

The plaintiff infant suffered brain damage while recovering from a successful operation when his endotrachial breathing tube became dislodged. After going without oxygen for five to 15 minutes, he was left a blind and mentally impaired quadriplegic.

In the first trial of the case, Essex County Superior Court Judge Francine Schott allowed potential jurors to be interviewed outside the hearing of the other panel members, where they were asked if they had had any bad experiences with the defendant hospital, its caregivers or with medical caregivers in general. When that trial ended in a mistrial, a second was held. Judge Schott this time permitted voir dire to proceed with all potential jurors in the courtroom. Many of these individuals were asked if they had had unfavorable experiences with the defendant hospital or the caregivers there, and all in the courtroom heard the negative comments they made in response. Of further concern to the defendant was Judge Schott's apparent preferential treatment of the plaintiff. After the verdict for plaintiff, the defendant appealed, arguing that by conducting all inquiries of potential jurors about their pre-existing biases against defendants and similar health care providers or facilities in open court, rather than at sidebar, the jurors eventually chosen had been prejudiced by their repeated exposure to irrelevant unfavorable views of the defendants and the medical profession that interfered with their ability to impartially decide the issues at hand. As to the judge's bias, the defense pointed, inter alia, to the court's permitting plaintiff counsel to: 1) disparage one of its experts based on his ethnic heritage and his work experience; 2) make inflammatory assertions that defendants would profit financially if the infant plaintiff were to die; and 3) accuse the defendants of hiding or destroying evidence. New Jersey's Appellate Division upheld the verdict, finding the errors and the favoritism harmless. This appeal to the State Supreme Court followed.

The Supreme Court unanimously found that Judge Schott acted in a biased way against the defendant, thus tainting the proceedings. In particular, the judge allowed plaintiff's counsel to make disparaging remarks about the defendants and their experts while at the same time preventing defense attorneys from vigorously presenting their case. With respect to the conduct of the voir dire of potential jurors, the court noted that “[t]he few comments [from potential jurors] that were generally negative toward plaintiffs were vastly outnumbered by those potential jurors who described the quality of care given at St. Barnabas as poor, who expressed anger and resentment at health care providers, and who were critical of doctors, nurses, and others in the hospital's employ.” The court stated, in conclusion, “Because we can have no confidence that the selection process resulted in a jury panel that could fairly and dispassionately evaluate the difficult and emotionally charged issues that were central to this litigation, we cannot permit its verdict to stand.”

Hospital Found Not Liable in MRI Cost Case

It did not constitute medical malpractice for a state-run university hospital to fail to inform a suspected cancer patient that if he could not afford to pay for his scheduled MRI screening test, Medicaid would cover the cost. Mortilla v. The State of New York, New York State Court of Claims, #2009-033-594, Claim No. 108375.

The decedent, Eric Mortilla, discovered in 2000 that he had a lump on his leg. His doctor suggested he have a Magnetic Resonance Imaging (MRI) test performed. When Mortilla's sister (claimant in this case) called the University Hospital at Stony Brook to schedule the test, she said she was told that Mortilla, who was uninsured, would have to bring $600 to pay the hospital on the day of the test or he MRI would not be performed. Apparently, the Mortillas were not told that Eric Mortilla could apply to get state aid to pay for the MRI. Unable to come up with $600, Mortilla did not get the MRI done.

A rare form of cancer, a synovial sarcoma, was subsequently found in Mr. Mortilla's leg by doctors at Mather Hospital in Port Jefferson and at the Memorial Sloan Kettering Hospital. The Mortilla family claimed Stony Brook's failure to inform Mr. Mortilla that the MRI would be paid for was tantamount to withholding medical treatment and to medical malpractice.

At the hearing, the claimant called Dr. James Vogel, an oncology expert who had worked with clinic patients like Mr. Mortilla who were unable to pay for their care. He testified that it was a departure from good and accepted medical practice for the defendant hospital not to have informed a patient that if he was unable to pay for a needed procedure he could have the procedure done anyway. He also said it was a departure from good and accepted medical practice for the testing facility not to inform the doctor ordering a test that the patient had not come in for that test, for whatever reason.

But Judge James J. Lack, ruling from the New York Court of Claims in Hauppauge, said that imposing such a duty on a health care provider would not be reasonable if patients fail to communicate their financial status, as Mr. Mortilla appears not to have done. Mortilla v. State of New York, 2009-033-594, ' Joel Stashenko, New York Law Journal.

Action Seeking Declaration Concerning Insurer's Obligation Is Premature

A court, asked by the plaintiff in an underlying action to render a declaratory judgment concerning a mental health caregiver's right to defense and indemnification from his insurer, properly dismissed the action, as the plaintiff in the underlying action lacked standing and the issue was not yet ripe for adjudication. Hamilton v. United Services Auto. Ass'n , 115 Conn.App. 774, — A.2d —-, 2009 WL 2047050 (Conn.App., 7/21/09).

In the underlying action, the conservator of the plaintiff's estate brought suit against the plaintiff's licensed professional counselor, John E. Thorson. The complaint in that action alleged that, while Thorson was treating the victim in his home for a variety of emotional and mental health issues, he failed to maintain professional boundaries. This situation purportedly lead to his sexually exploiting the victim over a period of years, causing her severe and permanent emotional distress. During the course of discovery in the underlying action, plaintiff learned that the defendant insurance company had issued a homeowner's liability insurance policy to Thorson but disclaimed any duty to defend or to indemnify him in the action. This fact was crucial to the plaintiff's case because the alleged victim's conservator did not wish to put her through the potential embarrassment and other mental and emotional strains of trial if there was to be no insurance coverage from which she could recover compensation.

With this background, the present declaratory judgment action was brought seeking a ruling from the court concerning whether the insurer, United Services Auto Assoc., had a duty to defend and indemnify Thorson. The defendant insurer filed a motion to dismiss, claiming that the court lacked subject matter jurisdiction because, inter alia: 1) the plaintiff did not have standing to bring the action; and 2) the claim was not yet ripe for adjudication. The hearing court granted the motion to dismiss, concluding that: 1) although the defendant insurance company might be liable to pay the claim against Thorson, the amended complaint did not allege that the defendant and Thorson intended the defendant to assume a direct obligation to the plaintiff, and, therefore, she lacked standing to bring the action; and 2) the action was not ripe because there had as yet been no determination in the Thorson action that Thorson was liable to the plaintiff for professional negligence.

The Appellate Court of Connecticut affirmed, finding that the evidence the plaintiff would present in Thorson, and the jury's findings based on that evidence, were not yet known. Said the court, “Until the evidence is known, as well as the jury's verdict with respect to those allegations, it is not possible to determine whether the defendant is obligated to indemnify Thorson. The action therefore seeks the answer to a hypothetical question, which is not the purpose of a declaratory judgment action.” As to the issue of ripeness, the court said, “Here, the plaintiff's claims are not yet ripe because they are contingent on the outcome of the Thorson action. We decline to accept the plaintiff's request that the trial court issue, in a factual vacuum, what would in effect be an advisory opinion.” Therefore, the defendant's motion to dismiss was properly granted.

NJ Supreme Court Throws Out $71.8 Million Med-Mal Award

New Jersey's Supreme Court nullified a $71.8 million medical malpractice award made to the family of a brain-injured baby, finding that the jury selection process had been tainted by a voir dire process that could have influenced prospective jurors and that the trial judge's favoritism toward the plaintiffs rendered the trial completely unfair to the defense. Pellicer ex rel. Pellicer v. St. Barnabas Hosp., — A.2d —-, 2009 WL 2185492 (N.J., 7/23/09).

The plaintiff infant suffered brain damage while recovering from a successful operation when his endotrachial breathing tube became dislodged. After going without oxygen for five to 15 minutes, he was left a blind and mentally impaired quadriplegic.

In the first trial of the case, Essex County Superior Court Judge Francine Schott allowed potential jurors to be interviewed outside the hearing of the other panel members, where they were asked if they had had any bad experiences with the defendant hospital, its caregivers or with medical caregivers in general. When that trial ended in a mistrial, a second was held. Judge Schott this time permitted voir dire to proceed with all potential jurors in the courtroom. Many of these individuals were asked if they had had unfavorable experiences with the defendant hospital or the caregivers there, and all in the courtroom heard the negative comments they made in response. Of further concern to the defendant was Judge Schott's apparent preferential treatment of the plaintiff. After the verdict for plaintiff, the defendant appealed, arguing that by conducting all inquiries of potential jurors about their pre-existing biases against defendants and similar health care providers or facilities in open court, rather than at sidebar, the jurors eventually chosen had been prejudiced by their repeated exposure to irrelevant unfavorable views of the defendants and the medical profession that interfered with their ability to impartially decide the issues at hand. As to the judge's bias, the defense pointed, inter alia, to the court's permitting plaintiff counsel to: 1) disparage one of its experts based on his ethnic heritage and his work experience; 2) make inflammatory assertions that defendants would profit financially if the infant plaintiff were to die; and 3) accuse the defendants of hiding or destroying evidence. New Jersey's Appellate Division upheld the verdict, finding the errors and the favoritism harmless. This appeal to the State Supreme Court followed.

The Supreme Court unanimously found that Judge Schott acted in a biased way against the defendant, thus tainting the proceedings. In particular, the judge allowed plaintiff's counsel to make disparaging remarks about the defendants and their experts while at the same time preventing defense attorneys from vigorously presenting their case. With respect to the conduct of the voir dire of potential jurors, the court noted that “[t]he few comments [from potential jurors] that were generally negative toward plaintiffs were vastly outnumbered by those potential jurors who described the quality of care given at St. Barnabas as poor, who expressed anger and resentment at health care providers, and who were critical of doctors, nurses, and others in the hospital's employ.” The court stated, in conclusion, “Because we can have no confidence that the selection process resulted in a jury panel that could fairly and dispassionately evaluate the difficult and emotionally charged issues that were central to this litigation, we cannot permit its verdict to stand.”

Hospital Found Not Liable in MRI Cost Case

It did not constitute medical malpractice for a state-run university hospital to fail to inform a suspected cancer patient that if he could not afford to pay for his scheduled MRI screening test, Medicaid would cover the cost. Mortilla v. The State of New York, New York State Court of Claims, #2009-033-594, Claim No. 108375.

The decedent, Eric Mortilla, discovered in 2000 that he had a lump on his leg. His doctor suggested he have a Magnetic Resonance Imaging (MRI) test performed. When Mortilla's sister (claimant in this case) called the University Hospital at Stony Brook to schedule the test, she said she was told that Mortilla, who was uninsured, would have to bring $600 to pay the hospital on the day of the test or he MRI would not be performed. Apparently, the Mortillas were not told that Eric Mortilla could apply to get state aid to pay for the MRI. Unable to come up with $600, Mortilla did not get the MRI done.

A rare form of cancer, a synovial sarcoma, was subsequently found in Mr. Mortilla's leg by doctors at Mather Hospital in Port Jefferson and at the Memorial Sloan Kettering Hospital. The Mortilla family claimed Stony Brook's failure to inform Mr. Mortilla that the MRI would be paid for was tantamount to withholding medical treatment and to medical malpractice.

At the hearing, the claimant called Dr. James Vogel, an oncology expert who had worked with clinic patients like Mr. Mortilla who were unable to pay for their care. He testified that it was a departure from good and accepted medical practice for the defendant hospital not to have informed a patient that if he was unable to pay for a needed procedure he could have the procedure done anyway. He also said it was a departure from good and accepted medical practice for the testing facility not to inform the doctor ordering a test that the patient had not come in for that test, for whatever reason.

But Judge James J. Lack, ruling from the New York Court of Claims in Hauppauge, said that imposing such a duty on a health care provider would not be reasonable if patients fail to communicate their financial status, as Mr. Mortilla appears not to have done. Mortilla v. State of New York, 2009-033-594, ' Joel Stashenko, New York Law Journal.