Verdicts

In reversing, Pennsylvania Supreme Court Justice David N. Wecht wrote for the majority: “Informed consent requires direct communication between physician and patient, and contemplates a back-and-forth, face-to-face exchange, which might include questions that the patient feels the physician must answer personally before the patient feels informed and becomes willing to consent.” Wecht concluded, “The duty to obtain the patient's informed consent belongs solely to the physician.”

Dissenting Judge Max Baer wrote that requiring doctors to personally obtain informed consent from every patient “improperly injects the judiciary into the day-to-day tasks of physicians such as Dr. Toms and fails to acknowledge the reality of the practice of medicine.” The 4-3 decision means that plaintiff Megan Shinal is entitled to a new trial.

Federal Employee Who Got Workers Comp-Like Benefits May Not Recover Under FTCA

A federal employee covered by the Federal Employees' Compensation Act (FECA) (which is akin to the civilian equivalent program, Workers' Compensation) who suffers a work-related injury may not also seek recovery under the Federal Tort Claims Act (FTCA) if the medical care he receives after that injury is substandard; his exclusive means of recovery is through the FECA because the medical care flowed from that first injury. Williamson v. United States, 2017 U.S. App. LEXIS 12246 (6th Cir., 7/10/17).

U.S. postal worker Gary Williamson delivered mail on foot in Kentucky, walking approximately eight miles per day. He began to suffer foot problems and sought treatment at the VA Emergency Department (VA ED) on Oct. 26, 2009. He was X-rayed and diagnosed with a sprain. A month later, Williamson stepped into a hole and twisted his ankle while working. He retured to the VA ED and was X-rayed, but no fracture was diagnosed. When he continued to suffer pain, Williamson sought care from another VA doctor, this time a podiatrist. This podiatrist diagnosed him with a navicular fracture and prescribed “a CAM walker —€ a removable boot used to offload pressure from a patient's foot.”

A week later, Williamson applied for FECA benefits, stating that the cause of his injury was the tripping incident involving the hole. He received benefits for temporary total disability for the period from March 20, 2010, to Oct. 25, 2012, in the amount of $79, 380. Through FECA he also received $27,801 for medical expenses and $19,974 as a lump-sum “schedule award.”

Williamson's pain continued and he returned several times to the VA hospital for treatment, including two unsuccessful surgeries in the spring of 2010. In August of that year, Williamson sought help from a non-VA physician, who performed two successful surgeries on him. Williamson continues, however, to experience pain in his foot.

Williamson brought an FTCA claim, then filed suit against the United States on Nov. 1, 2012, claiming that the VA botched his October, November, and December 2009 diagnoses and treatments as well as the two April 2010 surgeries. The Government filed a motion for summary judgment, arguing that when a federal employee is injured on the job and is granted FECA compensation, FECA's “exclusive-remedy provision” (5 U.S.C. § 8116(c)) bars him from suing the United States for tortious injury. The text of § 8116(c) states, in relevant part: “The liability of the United States or an instrumentality thereof under this subchapter or any extension thereof with respect to the injury or death of an employee is exclusive and instead of all other liability of the United States or the instrumentality to the employee … because of the injury or death … under a Federal tort liability statute.”

The Government lost its exclusive-remedy argument in the district court, but the U.S. Court of Appeals for the Sixth Circuit overturned that decision concluding that under § 8116(c), the United States is immune from any further liability arising “because of” Williamson's foot injury while working. It did not matter whether the VA had injured Williamson through medical malpractice, said the court, because, “[a]s a fundamental tort principle, injury caused by medical malpractice in the treatment of a previous, negligently caused injury is proximately caused by — and therefore occurs 'because of' —€ the original underlying negligence. …

Applying that principle, the VA's negligence occurred because of Williamson's workplace injury and therefore, under FECA's exclusive-remedy provision, cannot subject the United States to liability.”