Verdicts

Hospital Not Released from Liability by Agreement with Another Defendant

A Pennsylvania court has determined a medical malpractice plaintiff who agreed to limit a doctor's liability to the extent of his insurance coverage did not thereby release that defendant from the plaintiff's suit against multiple defendants. Moses Taylor Hosp. v. Carnevale, PICS Case No. 12-0276 (C.P. Lackawanna Dec. 7, 2011).

The plaintiff sued several defendants for medical malpractice, including physician Kevin McLaughlin and Scranton, PA's Moses Taylor Hospital. McLaughlin filed for bankruptcy, which triggered an automatic stay of lawsuit and collection proceedings against him. The plaintiff, wishing to go forward with the malpractice case, agreed to limit McLaughlin's liability to the amount covered by his medical malpractice insurance, provided the bankruptcy court would lift the stay to permit the malpractice suit to proceed. The remaining defendants objected, asserting that by limiting the doctor's liability, the plaintiff had increased their potential vicarious liability damages. Thus, they claimed, the plaintiff's agreement with the doctor should be deemed to have released them from liability as well. The court was not impressed with this reasoning, finding instead that “[t]he unambiguous language of the claimant's agreement not to execute against the debtor's personal assets cannot possibly be construed as a release of that tortfeasor or any other malpractice defendant or result in a reduction of their joint tortfeasor exposure.”

Consent to a 'Complete Medical Examination'
Includes Vaginal Exam

A mother failed to show that, by giving her child a visual vaginal examination, nurses at a school-based medical clinic overstepped the bounds of the mother's written consent to render medical treatment to her daughter. Perez v. United States, 2012 U.S. Dist. LEXIS 19909,(E.D.N.Y. 2/16/12).

When the mother enrolled her child in Public School 10 (“P.S. 10″) in Brooklyn, her child was offered one of two medical plans administered by the Lutheran Medical Center School Health Program (the program). The mother originally signed a limited medical consent form. However, the day after the child was sent home because the consent her mother had given did not permit the program's personnel to treat the child's left ear pain, the mother submitted a new General Consent Form. By doing so, she enrolled her daughter in the Complete Medical Care option, which permits the program's medical personnel to perform a “complete physical examination.” Later, while at school, the child complained of vaginal-area pain. (The child had had a previous vaginal infection.) Health service providers administered a urine dipstick test and determined the child had indicators for urinary tract or vaginal infection, among other possibilities. The nurse tried to reach the mother at her home and at her workplace. Being unable to reach the mother, the nurse left messages. When the mother finally received these messages she phoned the nurse, who told the mother she had performed a test on the child and had looked at her vagina. The mother, upset by this, went to the clinic and complained about the nurse viewing her child's vaginal region outside of her presence. The mother later brought suit against the nurse and others, claiming, inter alia, a lack of informed consent to submitting her daughter to a visual vaginal inspection. The suit was brought under the Federal Tort Claims Act, 28 U.S.C. ” 1346(b), 2671 et seq. (FTCA). New York substantive law applied.

Under New York law, lack of informed consent to submit to a medical procedure is shown where consent is given, but is based on insufficient information. To prevail, the plaintiff must prove the following elements: 1) That the medical provider failed to disclose alternatives to the treatment proposed and did not adequately discuss the risks and benefits of the treatment that a reasonable medical provider would have disclosed under similar circumstances; 2) That a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed; and 3) That the lack of informed consent is a proximate cause of the injury. N.Y. Pub. Health Law ' 2805-d(1), (3). Based on this test, the court found that the visual vaginal inspection was performed with the mother's consent. She had signed the General Consent Form authorizing a complete physical examination, even knowing that her child had a history of vaginal infection and, therefore, that she might again experience vaginal problems that could require a visual vaginal inspection. In addition, the court found that the mother had not met her burden of establishing that a reasonably prudent person would decline the medical treatment at issue.

Claim Asserts Plan Policy Harm, Not Medical Negligence

The Superior Court of Los Angeles County did not err in refusing to strike punitive damages claims against a managed care consortium because although the plaintiffs did not comply with procedures applying to punitives claims arising out of the negligent provision of health care services, their claim alleged harm from a different source: from the consortium's plan policies. Kaiser Foundation Health Plan Inc. v. The Superior Court of Los Angeles County, 2012 Cal. App. LEXIS 138 (2/5/12).

Pediatric patient Anna Rahm gets her medical care through the Kaiser Permanente Traditional Plan. Kaiser is a managed care consortium. Anna sought diagnosis and care from two doctors at Kaiser over the course of several months, beginning in March 2009. Both of them refused to order an MRI to help diagnose the cause of her pain. During this months-long period, the child sought help from several health care professionals ' including a chiropractor, two acupuncturists and caregivers at Kaiser's physical therapy department ' all of whom recommended that Anna undergo an MRI. Anna's mother reported these recommendations to one of Anna's doctors, but the physician remained unwilling to order an
MRI. Finally, the first doctor they had consulted with in March agreed to authorize an MRI, which was performed on July 2, 2009. It indicated that Anna had a cancerous mass in her pelvis. She underwent chemotherapy and several surgeries and has had to have her right leg and portions of her pelvis and spine removed.

The plaintiffs brought claims against the doctors and Kaiser, alleging that the delay in ordering an MRI for Anna permitted the cancer to grow, resulting in a worse outcome. Among these claims were claims for punitive damages against the doctors and Kaiser. The punitive damages claims against the doctors were later dropped, leaving only Kaiser to defend against a claim for punitive damages.

Kaiser moved to strike the punitive damages allegations, arguing that the plaintiffs had failed to comply with California's Code of Civil Procedure section 425.13. subdivision, (a), which states: “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 section goes on to explain that a trial court may allow an amended pleading claiming punitive damages only if the plaintiff submits evidence establishing “that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” The plaintiffs did not comply with section 425.13, and Kaiser argued this was fatal to their punitive damages claim as it involved an injury arising out of the professional negligence of the medical providers. The court agreed with the plaintiffs, however, that it was not the provision of medical services that was at issue in the punitive damages claim, but plan policies that encouraged physicians ' through policy pronouncements and physician bonuses ' to save Kaiser money. Stated the court, “A fair reading of the complaint indicates that plaintiffs allege that Kaiser Health Plan devised a compensation scheme that encouraged Kaiser health care providers to withhold medically necessary services from plan members. ' Thus, liberally construed, the complaint does not merely assert that Kaiser Health Plan is liable for the improper medical decisions made by Kaiser's physicians (delaying authorization of an MRI of Anna's back.) Rather, the complaint asserts that Kaiser Health Plan induced such conduct by providing financial incentives to deny expensive medical treatments.” Because the claim for punitive damages did not arise from an allegation that negligent medical care caused Anna's injuries, the plaintiffs were not required to comply with section 425.13. Thus, the petition to strike the punitive damages claims against Kaiser was denied.

Hospital Not Released from Liability by Agreement with Another Defendant

A Pennsylvania court has determined a medical malpractice plaintiff who agreed to limit a doctor's liability to the extent of his insurance coverage did not thereby release that defendant from the plaintiff's suit against multiple defendants. Moses Taylor Hosp. v. Carnevale, PICS Case No. 12-0276 (C.P. Lackawanna Dec. 7, 2011).

The plaintiff sued several defendants for medical malpractice, including physician Kevin McLaughlin and Scranton, PA's Moses Taylor Hospital. McLaughlin filed for bankruptcy, which triggered an automatic stay of lawsuit and collection proceedings against him. The plaintiff, wishing to go forward with the malpractice case, agreed to limit McLaughlin's liability to the amount covered by his medical malpractice insurance, provided the bankruptcy court would lift the stay to permit the malpractice suit to proceed. The remaining defendants objected, asserting that by limiting the doctor's liability, the plaintiff had increased their potential vicarious liability damages. Thus, they claimed, the plaintiff's agreement with the doctor should be deemed to have released them from liability as well. The court was not impressed with this reasoning, finding instead that “[t]he unambiguous language of the claimant's agreement not to execute against the debtor's personal assets cannot possibly be construed as a release of that tortfeasor or any other malpractice defendant or result in a reduction of their joint tortfeasor exposure.”

Consent to a 'Complete Medical Examination'
Includes Vaginal Exam

A mother failed to show that, by giving her child a visual vaginal examination, nurses at a school-based medical clinic overstepped the bounds of the mother's written consent to render medical treatment to her daughter. Perez v. United States, 2012 U.S. Dist. LEXIS 19909,(E.D.N.Y. 2/16/12).

When the mother enrolled her child in Public School 10 (“P.S. 10″) in Brooklyn, her child was offered one of two medical plans administered by the Lutheran Medical Center School Health Program (the program). The mother originally signed a limited medical consent form. However, the day after the child was sent home because the consent her mother had given did not permit the program's personnel to treat the child's left ear pain, the mother submitted a new General Consent Form. By doing so, she enrolled her daughter in the Complete Medical Care option, which permits the program's medical personnel to perform a “complete physical examination.” Later, while at school, the child complained of vaginal-area pain. (The child had had a previous vaginal infection.) Health service providers administered a urine dipstick test and determined the child had indicators for urinary tract or vaginal infection, among other possibilities. The nurse tried to reach the mother at her home and at her workplace. Being unable to reach the mother, the nurse left messages. When the mother finally received these messages she phoned the nurse, who told the mother she had performed a test on the child and had looked at her vagina. The mother, upset by this, went to the clinic and complained about the nurse viewing her child's vaginal region outside of her presence. The mother later brought suit against the nurse and others, claiming, inter alia, a lack of informed consent to submitting her daughter to a visual vaginal inspection. The suit was brought under the Federal Tort Claims Act, 28 U.S.C. ” 1346(b), 2671 et seq. (FTCA). New York substantive law applied.

Under New York law, lack of informed consent to submit to a medical procedure is shown where consent is given, but is based on insufficient information. To prevail, the plaintiff must prove the following elements: 1) That the medical provider failed to disclose alternatives to the treatment proposed and did not adequately discuss the risks and benefits of the treatment that a reasonable medical provider would have disclosed under similar circumstances; 2) That a reasonably prudent patient in the same position would not have undergone the treatment if he or she had been fully informed; and 3) That the lack of informed consent is a proximate cause of the injury. N.Y. Pub. Health Law ' 2805-d(1), (3). Based on this test, the court found that the visual vaginal inspection was performed with the mother's consent. She had signed the General Consent Form authorizing a complete physical examination, even knowing that her child had a history of vaginal infection and, therefore, that she might again experience vaginal problems that could require a visual vaginal inspection. In addition, the court found that the mother had not met her burden of establishing that a reasonably prudent person would decline the medical treatment at issue.

Claim Asserts Plan Policy Harm, Not Medical Negligence

The Superior Court of Los Angeles County did not err in refusing to strike punitive damages claims against a managed care consortium because although the plaintiffs did not comply with procedures applying to punitives claims arising out of the negligent provision of health care services, their claim alleged harm from a different source: from the consortium's plan policies. Kaiser Foundation Health Plan Inc. v. The Superior Court of Los Angeles County, 2012 Cal. App. LEXIS 138 (2/5/12).

Pediatric patient Anna Rahm gets her medical care through the Kaiser Permanente Traditional Plan. Kaiser is a managed care consortium. Anna sought diagnosis and care from two doctors at Kaiser over the course of several months, beginning in March 2009. Both of them refused to order an MRI to help diagnose the cause of her pain. During this months-long period, the child sought help from several health care professionals ' including a chiropractor, two acupuncturists and caregivers at Kaiser's physical therapy department ' all of whom recommended that Anna undergo an MRI. Anna's mother reported these recommendations to one of Anna's doctors, but the physician remained unwilling to order an
MRI. Finally, the first doctor they had consulted with in March agreed to authorize an MRI, which was performed on July 2, 2009. It indicated that Anna had a cancerous mass in her pelvis. She underwent chemotherapy and several surgeries and has had to have her right leg and portions of her pelvis and spine removed.

The plaintiffs brought claims against the doctors and Kaiser, alleging that the delay in ordering an MRI for Anna permitted the cancer to grow, resulting in a worse outcome. Among these claims were claims for punitive damages against the doctors and Kaiser. The punitive damages claims against the doctors were later dropped, leaving only Kaiser to defend against a claim for punitive damages.

Kaiser moved to strike the punitive damages allegations, arguing that the plaintiffs had failed to comply with California's Code of Civil Procedure section 425.13. subdivision, (a), which states: “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 section goes on to explain that a trial court may allow an amended pleading claiming punitive damages only if the plaintiff submits evidence establishing “that there is a substantial probability that the plaintiff will prevail on the claim pursuant to Section 3294 of the Civil Code.” The plaintiffs did not comply with section 425.13, and Kaiser argued this was fatal to their punitive damages claim as it involved an injury arising out of the professional negligence of the medical providers. The court agreed with the plaintiffs, however, that it was not the provision of medical services that was at issue in the punitive damages claim, but plan policies that encouraged physicians ' through policy pronouncements and physician bonuses ' to save Kaiser money. Stated the court, “A fair reading of the complaint indicates that plaintiffs allege that Kaiser Health Plan devised a compensation scheme that encouraged Kaiser health care providers to withhold medically necessary services from plan members. ' Thus, liberally construed, the complaint does not merely assert that Kaiser Health Plan is liable for the improper medical decisions made by Kaiser's physicians (delaying authorization of an MRI of Anna's back.) Rather, the complaint asserts that Kaiser Health Plan induced such conduct by providing financial incentives to deny expensive medical treatments.” Because the claim for punitive damages did not arise from an allegation that negligent medical care caused Anna's injuries, the plaintiffs were not required to comply with section 425.13. Thus, the petition to strike the punitive damages claims against Kaiser was denied.