Med Mal News

Although the patient survived, she sustained permanent injuries and must now get around with the help of a scooter. In addition, she now “has all these problems digesting and processing food. Once you have this type of infection in the abdominal cavity, for some reason you can never really get rid of it,” said McElligott. The hospital claimed at trial that even though the resident might have been negligent, the hospital was not responsible for his actions because he was a “joint resident” who also worked at another hospital. “It was an interesting position to take since he was practicing at [Danbury Hospital],” said McElligott.

The plaintiff successfully countered this argument with evidence that the Danbury Hospital residents were closely supervised by the hospital, making them “agents” of the hospital. “The reason agency was important was because [the resident] had a $1 million insurance policy,” said McElligott. “So for the remaining verdict to be collectible, we had to find [the resident] was an agent of the hospital.”

Supreme Court Denial of Gay Conversion Ban Appeal Could Affect NJ Cases

The June 30 decision by the U.S. Supreme Court not to review a ruling that upheld California's ban on gay conversion therapy might reverberate in New Jersey, which has a similar statute. Two constitutional challenges have been brought against the New Jersey measure, and one of them has been stayed since March in anticipation of the high court's ruling.

The Supreme Court justices denied certiorari in Pickup v. Brown, in which the U.S. Court of Appeals for the Ninth Circuit held last year that the California law, which bans licensed mental health providers from engaging in “sexual-orientation change efforts” with patients under 18, does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents' fundamental rights.

The New Jersey cases are King v. Christie and Doe v. Christie, filed, respectively, by therapists who provide the treatment and parents who want to make sure it continues to be available for their teenage son.

Pickup was decided by the Ninth Circuit on Aug. 29, 2013, seven days after Gov. Chris Christie signed A-3371, which took effect that same day, making New Jersey the second state in the country to impose a ban. The controversial treatment, also known as reparative therapy, has been condemned by the American Psychological Association, the American Counseling Association and the American Psychiatric Association, among other organizations, amid questions about its effectiveness, and concerns that it puts minors at risk of depression, substance abuse and suicide, as the legislature noted in its preamble to the bill.

While the Third Circuit is not bound to follow Pickup, City University of New York Law School professor Ruthann Robson, whose work focuses on sexuality and the law, said the Supreme Court's denial of the appeal in that case could have an indirect “gestalt” effect on the New Jersey cases, because it signifies there were not four justices who believed Pickup was so wrong and the California statute so clearly unconstitutional that it should be addressed by the court. Robson was not aware of any other states that have passed similar laws, but bills have been introduced in several, she said.

Like its California counterpart, the New Jersey law prohibits counseling to change the sexual orientation of a minor. It applies to anyone licensed under state law to provide professional counseling, including psychiatrists, psychologists, social workers, and marriage and family counselors.

The first attempt to strike down the New Jersey law came three days after it was enacted, with the filing of the King case on Aug. 22, 2013. The plaintiffs are two individuals from New Jersey who provide the therapy, a licensed counselor and a psychologist, and two groups that are also plaintiffs in Pickup , the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors, which claims it has 50,000 members in New Jersey. On Nov. 8, 2013, U.S. District Judge Freda Wolfson of the District of New Jersey granted summary holding that the law ' A-3371 ' was constitutional, dismissing the case in its entirety. Applying rational basis review, she found it does not impermissibly restrict free speech or religious expression under the First Amendment. She cited Pickup extensively, calling the California and New Jersey statutes “virtually identical.” The plaintiffs appealed her decision to the Third Circuit, where it remains pending.

The second court challenge was filed Nov. 1, 2013, by “Jack and Jane Doe,” who allege that A-3371 infringes on their rights as parents to seek treatment for the same-sex attraction and gender confusion of their 15-year-old son, “John Doe.” They asserted that John wanted the therapy, and since he started it in 2011, his psychological distress about his unwanted same-sex sexual attractions and his confusion concerning his gender identity have improved. They claim the law denies their son and other New Jersey minors “self-determination in the exercise of their religious and moral values, and their right to receive counseling consistent with those values,” and interferes with their fundamental rights as parents “to direct the upbringing and education of their child.”

Based on their “sincerely held religious beliefs ' that homosexuality is a sinful and harmful lifestyle that is not in accordance with the teachings of the Holy Bible,” they also claim a violation of their “hybrid rights” to the free exercise of religion and to receive information and direct the upbringing of their child. Wolfson stayed the action March 28 as “prudent and in the interest of judicial economy,” given her decision in King and the request for certiorari in Pickup. Given the similarity to King , she said, “I see no reason why plaintiff's free speech and free exercise challenge should not also be rejected.”

King did not raise the “hybrid rights” issue, but Pickup did, which was another reason to wait for the Supreme Court, Judge Wolfson said. At the same time, she administratively terminated the plainiffs' motion for a preliminary injunction motion and a motion to intervene by Garden State Equality, a New Jersey gay-rights group. The plaintiffs are appealing the denial of injunctive relief. They are represented by the same lawyer as in King and Pickup , Mathew Staver of Liberty Counsel, a nonprofit based in Orlando, FL. Staver could not be reached, but, in a statement responding to the denial of certiorari, he said he was “deeply saddened for the families we represent and for the thousands of children that our professional clients counsel, many of whom developed these unwanted attractions because of abuse of a pedophile” and are “greatly benefiting from this counseling.” He also said in the statement, “I can assure you the battle over change therapy is far from over. We will be back.”

Local counsel Demetrios Stratis of Fair Lawn said now that the reason for the stay is ended, he plans to send a letter or file a formal motion to get the case moving again. He said King was incorrectly dismissed because the judge treated the therapists' work as conduct rather than speech.

Though the U.S. Supreme Court denied the appeal in Pickup , the Third Circuit “will decide independently and on the merits,” Stratis said. ' Mary Pat Gallagher , New Jersey Law Journal

'

$12 million Verdict for Simple Hernia Surgery That Went Bad

A Connecticut jury recently awarded a woman $12 million, the largest personal injury award ever to come out of the Danbury, CT, Judicial District. The plaintiff had gone into defendant Danbury Hospital for a routine outpatient hernia operation but ended up spending 34 days in the intensive care unit and 36 more days in the hospital after her laparoscopic surgery went wrong.

The plaintiff's troubles began when her surgeon, Dr. Gordon, handed over the bladeless optical trocar device being used in the procedure to a medical resident, who told Dr. Gordon that he had used one before. According to plaintiff attorney Sean McElligott, of Bridgeport, CT's Koskoff, Koskoff & Bieder, it soon became apparent that the resident did not know what he was doing. And although Dr. Gordon stepped in as soon as he saw that the resident was not competent to perform the procedure, he did not notice that damage had already been done. The surgeon therefore finished the operation and sent the patient to recovery. Thirty-six hours later, the plaintiff showed signs of infection, and an operation was required. It revealed that the woman's abdomen had filled with fecal matter.

Although the patient survived, she sustained permanent injuries and must now get around with the help of a scooter. In addition, she now “has all these problems digesting and processing food. Once you have this type of infection in the abdominal cavity, for some reason you can never really get rid of it,” said McElligott. The hospital claimed at trial that even though the resident might have been negligent, the hospital was not responsible for his actions because he was a “joint resident” who also worked at another hospital. “It was an interesting position to take since he was practicing at [Danbury Hospital],” said McElligott.

The plaintiff successfully countered this argument with evidence that the Danbury Hospital residents were closely supervised by the hospital, making them “agents” of the hospital. “The reason agency was important was because [the resident] had a $1 million insurance policy,” said McElligott. “So for the remaining verdict to be collectible, we had to find [the resident] was an agent of the hospital.”

Supreme Court Denial of Gay Conversion Ban Appeal Could Affect NJ Cases

The June 30 decision by the U.S. Supreme Court not to review a ruling that upheld California's ban on gay conversion therapy might reverberate in New Jersey, which has a similar statute. Two constitutional challenges have been brought against the New Jersey measure, and one of them has been stayed since March in anticipation of the high court's ruling.

The Supreme Court justices denied certiorari in Pickup v. Brown, in which the U.S. Court of Appeals for the Ninth Circuit held last year that the California law, which bans licensed mental health providers from engaging in “sexual-orientation change efforts” with patients under 18, does not violate the free speech rights of practitioners or minor patients, is neither vague nor overbroad, and does not violate parents' fundamental rights.

The New Jersey cases are King v. Christie and Doe v. Christie, filed, respectively, by therapists who provide the treatment and parents who want to make sure it continues to be available for their teenage son.

Pickup was decided by the Ninth Circuit on Aug. 29, 2013, seven days after Gov. Chris Christie signed A-3371, which took effect that same day, making New Jersey the second state in the country to impose a ban. The controversial treatment, also known as reparative therapy, has been condemned by the American Psychological Association, the American Counseling Association and the American Psychiatric Association, among other organizations, amid questions about its effectiveness, and concerns that it puts minors at risk of depression, substance abuse and suicide, as the legislature noted in its preamble to the bill.

While the Third Circuit is not bound to follow Pickup, City University of New York Law School professor Ruthann Robson, whose work focuses on sexuality and the law, said the Supreme Court's denial of the appeal in that case could have an indirect “gestalt” effect on the New Jersey cases, because it signifies there were not four justices who believed Pickup was so wrong and the California statute so clearly unconstitutional that it should be addressed by the court. Robson was not aware of any other states that have passed similar laws, but bills have been introduced in several, she said.

Like its California counterpart, the New Jersey law prohibits counseling to change the sexual orientation of a minor. It applies to anyone licensed under state law to provide professional counseling, including psychiatrists, psychologists, social workers, and marriage and family counselors.

The first attempt to strike down the New Jersey law came three days after it was enacted, with the filing of the King case on Aug. 22, 2013. The plaintiffs are two individuals from New Jersey who provide the therapy, a licensed counselor and a psychologist, and two groups that are also plaintiffs in Pickup , the National Association for Research and Therapy of Homosexuality and the American Association of Christian Counselors, which claims it has 50,000 members in New Jersey. On Nov. 8, 2013, U.S. District Judge Freda Wolfson of the District of New Jersey granted summary holding that the law ' A-3371 ' was constitutional, dismissing the case in its entirety. Applying rational basis review, she found it does not impermissibly restrict free speech or religious expression under the First Amendment. She cited Pickup extensively, calling the California and New Jersey statutes “virtually identical.” The plaintiffs appealed her decision to the Third Circuit, where it remains pending.

The second court challenge was filed Nov. 1, 2013, by “Jack and Jane Doe,” who allege that A-3371 infringes on their rights as parents to seek treatment for the same-sex attraction and gender confusion of their 15-year-old son, “John Doe.” They asserted that John wanted the therapy, and since he started it in 2011, his psychological distress about his unwanted same-sex sexual attractions and his confusion concerning his gender identity have improved. They claim the law denies their son and other New Jersey minors “self-determination in the exercise of their religious and moral values, and their right to receive counseling consistent with those values,” and interferes with their fundamental rights as parents “to direct the upbringing and education of their child.”

Based on their “sincerely held religious beliefs ' that homosexuality is a sinful and harmful lifestyle that is not in accordance with the teachings of the Holy Bible,” they also claim a violation of their “hybrid rights” to the free exercise of religion and to receive information and direct the upbringing of their child. Wolfson stayed the action March 28 as “prudent and in the interest of judicial economy,” given her decision in King and the request for certiorari in Pickup. Given the similarity to King , she said, “I see no reason why plaintiff's free speech and free exercise challenge should not also be rejected.”

King did not raise the “hybrid rights” issue, but Pickup did, which was another reason to wait for the Supreme Court, Judge Wolfson said. At the same time, she administratively terminated the plainiffs' motion for a preliminary injunction motion and a motion to intervene by Garden State Equality, a New Jersey gay-rights group. The plaintiffs are appealing the denial of injunctive relief. They are represented by the same lawyer as in King and Pickup , Mathew Staver of Liberty Counsel, a nonprofit based in Orlando, FL. Staver could not be reached, but, in a statement responding to the denial of certiorari, he said he was “deeply saddened for the families we represent and for the thousands of children that our professional clients counsel, many of whom developed these unwanted attractions because of abuse of a pedophile” and are “greatly benefiting from this counseling.” He also said in the statement, “I can assure you the battle over change therapy is far from over. We will be back.”

Local counsel Demetrios Stratis of Fair Lawn said now that the reason for the stay is ended, he plans to send a letter or file a formal motion to get the case moving again. He said King was incorrectly dismissed because the judge treated the therapists' work as conduct rather than speech.

Though the U.S. Supreme Court denied the appeal in Pickup , the Third Circuit “will decide independently and on the merits,” Stratis said. ' Mary Pat Gallagher , New Jersey Law Journal

'