Verdicts

New York's Appellate Division, Second Department, affirmed the lower court's decision. Appellate Division Justice Sandra Sgroi wrote, “There is no indication that the website permitted a user thereof to purchase any goods or services from [the Laser Spine Institute], that it contained any online form application process, or that it allowed any interaction through the site.” She wrote that the website was merely informational and was therefore “passive”; as such, it did not constitute the substantial business activity in New York that could justify exercise of long-arm jurisdiction.

In his dissent, Justice Thomas A. Dickerson opined that the true nature of the LSI website was not fully established, so that deeming it “passive” might be a mistake. The case could, he thought, belong in a “messier middle ground where personal jurisdiction depends on the level of interactivity and commercial nature of the exchange.”

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Judge Went Too Far By Striking Defense's Answer

The Georgia Court of Appeals has thrown out a $719,000 medical malpractice verdict against a hospital sanctioned by the trial court with the striking of its answer to the lawsuit, but it upheld the trial judge's punishment of the hospital's lawyers for intimidating an expert witness. WellStar v. Kemp, 2013 Ga. App. LEXIS 902 (11/12/13).

The plaintiff claimed that WellStar Health Systems Inc.'s Carrollton facility caused her husband's 2009 death when he was given medications there that adversely affected him because of his alcohol and tobacco consumption histories. Cobb County Superior Court Chief Judge Adele Grubbs, who presided over the case, sanctioned the hospital by striking its answer when she determined that the hospital's attorneys interfered with the testimony of a plaintiff's expert witness by telephoning his employer, thus intimidating him. With the default judgment entered, the hospital was able only to argue the damages portion of the case.

On appeal, the three-judge panel reversed and remanded for further proceedings, concluding that the sanction Judge Grubbs imposed was too draconian. The court stated, “We are mindful that as the trial court recognized, it is a hardship to [the plaintiff] to secure another expert, but these hardships can be addressed by the trial court with a number of less severe sanctions than the complete foreclosure of WellStar's defenses to liability.”

Informed Consent Irrelevant to Malpractice Question

A Pennsylvania appellate court reversed a medical malpractice defense verdict because repeated references to the plaintiff's informed consent to the operation that allegedly caused her injuries could have confused the jury into thinking that she had consented to being injured due to medical malpractice. Brady v. Urbis, 2013 PA Super 296; 2013 Pa. Super. LEXIS 3158 (11/12/13).

The plaintiff underwent a series of surgeries on her foot that not only failed to fix her problems, but also shortened one of her toes. She now claims she is in constant pain. She sued for medical malpractice. Her attorneys filed a motion in limine seeking to prevent introduction of evidence of the plaintiff's consent to the surgeries, but the trial court denied the motion. During the trial, the defense made reference to the plaintiff's consent to surgery and her knowledge of the risks involved. The court also provided the jury with copies of some of the consent forms, to be used during deliberations. The jury returned a defense verdict, and the plaintiff appealled.

The appeals court referenced Toogood v. Owen J. Rogal, D.D.S. P.C, 573 Pa. 245 (Pa. 2003), which holds that to prevail in a medical malpractice action, a plaintiff must establish: 1) a duty owed by the physician to the patient; 2) a breach of that duty by the physician; 3) that the breach was the proximate cause of the harm suffered; and 4) that the damages suffered were a direct result of the harm. With this in mind, the court explained that it must reverse because the plaintiff's “consent to her surgeries and knowledge of the risks associated with those surgeries have no tendency to make the existence of any fact of consequence to the determination of this action more or less probable than it would be without this evidence. In other words, evidence of informed consent is irrelevant in a medical malpractice case. Moreover, assuming arguendo that such evidence had some marginal relevance in this case, the evidence clearly could have misled or confused the jury by leading it to believe that [the plaintiff's] injuries simply were a risk of the surgeries and that she accepted such risks, regardless of whether [the doctor's] negligence caused the risks to occur. Evidence of [the plaintiff's] consent to her surgeries and her knowledge of the risks associated with her surgeries was inadmissible, and the trial court abused its discretion by ruling to the contrary.”

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NY Cout Won't Use 'Long Arm' to Reach Florida Med Center

New York's Appellate Division recently declined to exercise long-arm jurisdiction to hear a medical malpractice case that sprung from care provided to a New York man who responded to an Internet advertisement from a Florida surgical center. Paterno v. Laser Spine Institute, 22125/10,

The plaintiff New York resident learned about the services of Florida's Laser Spine Institute (LSI) through an advertisement posted on his America Online home page. He corresponded with LSI personnel through e-mail and spoke to them over the telephone. In addition, his New York doctor consulted with LSI personnel. The plaintiff traveled to Florida for two surgical procedures at LSI. He was ultimately dissatisfied and brought this medical malpractice claim in New York, asserting that LSI's Internet-based advertisement in New York rendered it subject to New York jurisdiction. The trial court dismissed the claim.

New York's Appellate Division, Second Department, affirmed the lower court's decision. Appellate Division Justice Sandra Sgroi wrote, “There is no indication that the website permitted a user thereof to purchase any goods or services from [the Laser Spine Institute], that it contained any online form application process, or that it allowed any interaction through the site.” She wrote that the website was merely informational and was therefore “passive”; as such, it did not constitute the substantial business activity in New York that could justify exercise of long-arm jurisdiction.

In his dissent, Justice Thomas A. Dickerson opined that the true nature of the LSI website was not fully established, so that deeming it “passive” might be a mistake. The case could, he thought, belong in a “messier middle ground where personal jurisdiction depends on the level of interactivity and commercial nature of the exchange.”

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Judge Went Too Far By Striking Defense's Answer

The Georgia Court of Appeals has thrown out a $719,000 medical malpractice verdict against a hospital sanctioned by the trial court with the striking of its answer to the lawsuit, but it upheld the trial judge's punishment of the hospital's lawyers for intimidating an expert witness. WellStar v. Kemp, 2013 Ga. App. LEXIS 902 (11/12/13).

The plaintiff claimed that WellStar Health Systems Inc.'s Carrollton facility caused her husband's 2009 death when he was given medications there that adversely affected him because of his alcohol and tobacco consumption histories. Cobb County Superior Court Chief Judge Adele Grubbs, who presided over the case, sanctioned the hospital by striking its answer when she determined that the hospital's attorneys interfered with the testimony of a plaintiff's expert witness by telephoning his employer, thus intimidating him. With the default judgment entered, the hospital was able only to argue the damages portion of the case.

On appeal, the three-judge panel reversed and remanded for further proceedings, concluding that the sanction Judge Grubbs imposed was too draconian. The court stated, “We are mindful that as the trial court recognized, it is a hardship to [the plaintiff] to secure another expert, but these hardships can be addressed by the trial court with a number of less severe sanctions than the complete foreclosure of WellStar's defenses to liability.”

Informed Consent Irrelevant to Malpractice Question

A Pennsylvania appellate court reversed a medical malpractice defense verdict because repeated references to the plaintiff's informed consent to the operation that allegedly caused her injuries could have confused the jury into thinking that she had consented to being injured due to medical malpractice. Brady v. Urbis, 2013 PA Super 296; 2013 Pa. Super. LEXIS 3158 (11/12/13).

The plaintiff underwent a series of surgeries on her foot that not only failed to fix her problems, but also shortened one of her toes. She now claims she is in constant pain. She sued for medical malpractice. Her attorneys filed a motion in limine seeking to prevent introduction of evidence of the plaintiff's consent to the surgeries, but the trial court denied the motion. During the trial, the defense made reference to the plaintiff's consent to surgery and her knowledge of the risks involved. The court also provided the jury with copies of some of the consent forms, to be used during deliberations. The jury returned a defense verdict, and the plaintiff appealled.

The appeals court referenced Toogood v. Owen J. Rogal , D.D.S. P.C, 573 Pa. 245 (Pa. 2003), which holds that to prevail in a medical malpractice action, a plaintiff must establish: 1) a duty owed by the physician to the patient; 2) a breach of that duty by the physician; 3) that the breach was the proximate cause of the harm suffered; and 4) that the damages suffered were a direct result of the harm. With this in mind, the court explained that it must reverse because the plaintiff's “consent to her surgeries and knowledge of the risks associated with those surgeries have no tendency to make the existence of any fact of consequence to the determination of this action more or less probable than it would be without this evidence. In other words, evidence of informed consent is irrelevant in a medical malpractice case. Moreover, assuming arguendo that such evidence had some marginal relevance in this case, the evidence clearly could have misled or confused the jury by leading it to believe that [the plaintiff's] injuries simply were a risk of the surgeries and that she accepted such risks, regardless of whether [the doctor's] negligence caused the risks to occur. Evidence of [the plaintiff's] consent to her surgeries and her knowledge of the risks associated with her surgeries was inadmissible, and the trial court abused its discretion by ruling to the contrary.”

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