Verdicts

The Appellate Court reversed the judgment, in part, on other grounds as to Aranow and Shoreline, and remanded. However, the appeals court determined that the trial court correctly declined to create a foreign-object exception to the repose statute in C.G.S. ' 52-584. It found that the fact that other states' legislative bodies had enacted foreign-object exceptions to their respective limitations statutes for professional negligence did not compel Connecticut's courts' compliance.

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Plaintiffs Get Attorney Fees and Costs for Wrongful Removal

The U.S. District Court for the District of Connecticut has found that plaintiffs who prove that a defendant wrongfully removed a case to district court may recover attorney fees. Fajardo v. Boston Scientific Corp., 2015 U.S. Dist. LEXIS 467 (D. Ct., 1/5/15).

The plaintiffs, who are citizens of Connecticut, sued the defendants in Connecticut Superior Court and alleged medical malpractice, violation of the doctrine of informed consent and violation of the Connecticut Products Liability Act. Defendant Boston Scientific Corp. removed the suit to the United States District Court on the basis of diversity jurisdiction. Diversity jurisdiction only exists when each defendant is a citizen of a different state than each plaintiff. The plaintiffs objected that the parties were not diverse, because the plaintiffs are citizens of Connecticut, as are several of the defendants. Boston Scientific Corp. contended that the court should disregard the Connecticut defendants because the plaintiffs failed to state a claim on which relief could be granted against those defendants.

The district court found unpersuasive Boston Scientific Corp.'s claim that the Connecticut defendants were not properly joined because no evidence existed that the plaintiffs filed claims against those defendants in an attempt to evade federal jurisdiction. Several of the plaintiffs' allegations against those defendants remained actionable. In the absence of complete diversity of citizenship, the district court lacked jurisdiction. Therefore, the court granted the plaintiffs' motion to remand to Connecticut Superior Court and for attorney fees and costs of removal.

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GA Appeals Court Says Nurse Midwife May Testify Against RN

Because an expert witness was in fact qualified to testify, the divided whole Georgia Court of Appeals reversed the grant of Gwinnett Hospital System Inc.'s motion for a new trial following a jury verdict in favor of Melissa Dempsey in her medical malpractice action. Dempsey alleged that her daughter's permanent physical and mental disabilities resulted from traumatic brain injury that occurred when she suffered fetal distress and oxygen deprivation during her birth, complications that the registered professional nurses (RNs) attending the labor and delivery negligently failed to detect and address. Dempsey v. Gwinnett Hosp. Sys. Inc., A14A1427; A14A1428 (11/21/2014)

The trial court agreed with the hospital's contention that it improperly admitted the testimony of one of Dempsey's expert witnesses, a certified nurse midwife (CNM), as she was not properly qualified under O.C.G.A. ' 24-7-702 (c) (2) (C) (i) to testify on the standard of care applicable to the RNs because she was not a member of “the same profession.” The appellate court disagreed, however, holding that it was undisputed that the witness was both an RN and a CNM; that Georgia law requires a CNM to be licensed as an RN and both are regulated by the Georgia Board of Nursing; that a CNM is an RN who has advanced training in a specialized area; and that the expert affidavit statute does not support an inference that RNs and CNMs are different, as it lists only “nurses” and does not have a separate listing for “certified nurse midwives.” Thus, the witness was a member of the same profession as the hospital's RNs.

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Partial Payment of Damages Tolls Statute of Limitations Absent Notice to Injured Party

California's Second Appellate District has affirmed a judgment in which a trial court held that the statute of limitations on a medical malpractice action was tolled after the defendant made a partial payment to the plaintiff but failed to provide him written notice of the limitations period for filing a lawsuit. Coastal Surgical Institute v. Blevins, C.A. 2nd; B254787.

On Sept. 1, 2010, Charles Blevins had knee surgery performed at Coastal Surgical Institute. After the surgery, Blevins's knee became infected. The infection was caused by pseudomonas aeruginosa bacteria. This bacteria was subsequently found on a sponge that had been used to clean the equipment used in Blevins's surgery. On Oct. 12, 2010, Coastal paid Blevins $4,118.23 for the medical expenses he had incurred in treating the knee infection. Blevins did not sign an agreement releasing Coastal from liability. At the time of payment, Blevins was not represented by counsel. Coastal did not give Blevins written notice of the applicable statute of limitations for a medical malpractice action. On Jan. 24, 2012, more than 15 months after he received Coastal's payment, Blevins sued Coastal for medical malpractice. Under the applicable statute of limitations, such suit should have been filed within one year of Blevins's discovery of the malpractice.

The trial court, relying on Ins. Code Section11583, ruled that the one-year limitations period of Code Civ.Proc. Section 340.5 was tolled by Coastal's payment of Blevins's medical expenses. It denied Coastal's motion to conduct a bifurcated jury trial on the statute of limitations issue. Section 11583 provides that the applicable statute of limitations is tolled when a tortfeasor or tortfeasor's insurer makes an advance or partial payment to an injured and unrepresented person without notifying him or her of the applicable limitations period. Section 11583 was designed to encourage early payment of damages without fear of admitting liability. The written notice requirement is intended to prevent a defendant's apparent cooperativeness from lulling an injury victim into a false sense of complacency about the need to sue. Following a jury trial, Blevins was awarded damages of $285,114.

At issue on appeal was whether Section 11583 applies to medical malpractice actions. The appeals court found that it does, and concluded that the trial court properly found that Coastal's October 2010 payment tolled the statute of limitations on Blevins's malpractice action because Coastal made a partial payment to Blevins without notifying him of the statute of limitations applicable to medical malpractice actions.

The court found further that Coastal was not entitled to a jury trial on its affirmative defense of the statute of limitations. This was an issue of law, not of fact, and, as such, needed to be decided by the trial court. Although Coastal argued there was a disputed issue of fact as to whether parties considered the October 2010 payment to be a final, rather than partial payment, that issue was not determinative. Section 11583 does not contain a scienter requirement. Thus, whether Coastal intended the reimbursement of Blevins's medical expenses to be something other than an advance or partial payment would not change the outcome. Coastal's failure to provide Blevins with written notice of the applicable statute of limitations tolled that statute regardless of Coastal's intentions with regard to its payment.

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CT Will Not Recognize a Foreign Object Exception to Statute of Repose

The Connecticut Appellate Court recently held that that state's courts are not permitted to recognize a foreign object exception to the statute of repose in Connecticut General Statutes ' 52-584. Cefaratti v. Aranow , 154 Conn. App. 1 (12/9/14).

On Dec. 8, 2003, Dr. Jonathan Aranow performed gastric bypass surgery on Lisa Cefaratti and then continued to monitor her. Cefaratti was later diagnosed with breast cancer, at which time a CT scan revealed there was a foreign object in her abdominal cavity. On Sept. 9, 2009, Dr. Aranow informed Cefaratti that the foreign object was a surgical sponge. On Aug. 5, 2010, Cefaratti brought this action against Aranow, Shoreline Surgical Associates, P.C. and Middlesex Hospital. The trial court granted summary judgment to the defendants. The plaintiff appealed, claiming, inter alia , that the court improperly failed to recognize a foreign object exception to the statute of repose.

The Appellate Court reversed the judgment, in part, on other grounds as to Aranow and Shoreline, and remanded. However, the appeals court determined that the trial court correctly declined to create a foreign-object exception to the repose statute in C.G.S. ' 52-584. It found that the fact that other states' legislative bodies had enacted foreign-object exceptions to their respective limitations statutes for professional negligence did not compel Connecticut's courts' compliance.

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Plaintiffs Get Attorney Fees and Costs for Wrongful Removal

The U.S. District Court for the District of Connecticut has found that plaintiffs who prove that a defendant wrongfully removed a case to district court may recover attorney fees. Fajardo v. Boston Scientific Corp., 2015 U.S. Dist. LEXIS 467 (D. Ct., 1/5/15).

The plaintiffs, who are citizens of Connecticut, sued the defendants in Connecticut Superior Court and alleged medical malpractice, violation of the doctrine of informed consent and violation of the Connecticut Products Liability Act. Defendant Boston Scientific Corp. removed the suit to the United States District Court on the basis of diversity jurisdiction. Diversity jurisdiction only exists when each defendant is a citizen of a different state than each plaintiff. The plaintiffs objected that the parties were not diverse, because the plaintiffs are citizens of Connecticut, as are several of the defendants. Boston Scientific Corp. contended that the court should disregard the Connecticut defendants because the plaintiffs failed to state a claim on which relief could be granted against those defendants.

The district court found unpersuasive Boston Scientific Corp.'s claim that the Connecticut defendants were not properly joined because no evidence existed that the plaintiffs filed claims against those defendants in an attempt to evade federal jurisdiction. Several of the plaintiffs' allegations against those defendants remained actionable. In the absence of complete diversity of citizenship, the district court lacked jurisdiction. Therefore, the court granted the plaintiffs' motion to remand to Connecticut Superior Court and for attorney fees and costs of removal.

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GA Appeals Court Says Nurse Midwife May Testify Against RN

Because an expert witness was in fact qualified to testify, the divided whole Georgia Court of Appeals reversed the grant of Gwinnett Hospital System Inc.'s motion for a new trial following a jury verdict in favor of Melissa Dempsey in her medical malpractice action. Dempsey alleged that her daughter's permanent physical and mental disabilities resulted from traumatic brain injury that occurred when she suffered fetal distress and oxygen deprivation during her birth, complications that the registered professional nurses (RNs) attending the labor and delivery negligently failed to detect and address. Dempsey v. Gwinnett Hosp. Sys. Inc., A14A1427; A14A1428 (11/21/2014)

The trial court agreed with the hospital's contention that it improperly admitted the testimony of one of Dempsey's expert witnesses, a certified nurse midwife (CNM), as she was not properly qualified under O.C.G.A. ' 24-7-702 (c) (2) (C) (i) to testify on the standard of care applicable to the RNs because she was not a member of “the same profession.” The appellate court disagreed, however, holding that it was undisputed that the witness was both an RN and a CNM; that Georgia law requires a CNM to be licensed as an RN and both are regulated by the Georgia Board of Nursing; that a CNM is an RN who has advanced training in a specialized area; and that the expert affidavit statute does not support an inference that RNs and CNMs are different, as it lists only “nurses” and does not have a separate listing for “certified nurse midwives.” Thus, the witness was a member of the same profession as the hospital's RNs.

'

Partial Payment of Damages Tolls Statute of Limitations Absent Notice to Injured Party

California's Second Appellate District has affirmed a judgment in which a trial court held that the statute of limitations on a medical malpractice action was tolled after the defendant made a partial payment to the plaintiff but failed to provide him written notice of the limitations period for filing a lawsuit. Coastal Surgical Institute v. Blevins, C.A. 2nd; B254787.

On Sept. 1, 2010, Charles Blevins had knee surgery performed at Coastal Surgical Institute. After the surgery, Blevins's knee became infected. The infection was caused by pseudomonas aeruginosa bacteria. This bacteria was subsequently found on a sponge that had been used to clean the equipment used in Blevins's surgery. On Oct. 12, 2010, Coastal paid Blevins $4,118.23 for the medical expenses he had incurred in treating the knee infection. Blevins did not sign an agreement releasing Coastal from liability. At the time of payment, Blevins was not represented by counsel. Coastal did not give Blevins written notice of the applicable statute of limitations for a medical malpractice action. On Jan. 24, 2012, more than 15 months after he received Coastal's payment, Blevins sued Coastal for medical malpractice. Under the applicable statute of limitations, such suit should have been filed within one year of Blevins's discovery of the malpractice.

The trial court, relying on Ins. Code Section11583, ruled that the one-year limitations period of Code Civ.Proc. Section 340.5 was tolled by Coastal's payment of Blevins's medical expenses. It denied Coastal's motion to conduct a bifurcated jury trial on the statute of limitations issue. Section 11583 provides that the applicable statute of limitations is tolled when a tortfeasor or tortfeasor's insurer makes an advance or partial payment to an injured and unrepresented person without notifying him or her of the applicable limitations period. Section 11583 was designed to encourage early payment of damages without fear of admitting liability. The written notice requirement is intended to prevent a defendant's apparent cooperativeness from lulling an injury victim into a false sense of complacency about the need to sue. Following a jury trial, Blevins was awarded damages of $285,114.

At issue on appeal was whether Section 11583 applies to medical malpractice actions. The appeals court found that it does, and concluded that the trial court properly found that Coastal's October 2010 payment tolled the statute of limitations on Blevins's malpractice action because Coastal made a partial payment to Blevins without notifying him of the statute of limitations applicable to medical malpractice actions.

The court found further that Coastal was not entitled to a jury trial on its affirmative defense of the statute of limitations. This was an issue of law, not of fact, and, as such, needed to be decided by the trial court. Although Coastal argued there was a disputed issue of fact as to whether parties considered the October 2010 payment to be a final, rather than partial payment, that issue was not determinative. Section 11583 does not contain a scienter requirement. Thus, whether Coastal intended the reimbursement of Blevins's medical expenses to be something other than an advance or partial payment would not change the outcome. Coastal's failure to provide Blevins with written notice of the applicable statute of limitations tolled that statute regardless of Coastal's intentions with regard to its payment.

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