Milwaukee Judge Holds Medical Malpractice Damages Cap Unconstitutional When Applied to Woman Who Had Four Limbs Amputated Due to Medical Negligence

A woman who lost all four limbs to sepsis because emergency room physicians failed to inform her that she may have an infection that could be treated with antibiotics won a $25.3 million judgment for medical malpractice. $16.5 million of that award was for pain and suffering and loss of companionship with her husband. The defendants asked the judge to reduce this portion of the award from $16.5 million down to $750,000, pursuant to a Wisconsin state law which caps "noneconomic" damages in medical malpractice cases at $750,000.

The judge refused to reduce the award, however, deciding that it would be unconstitutional to apply the damages cap in this particular instance. The judge in Mayo v. Wisconsin Injured Patients and Families Compensation Fund looked at the different arguments in favor of damages caps - controlling health care costs, controlling doctors' insurance premiums, preventing "runaway jury" awards - and decided that none of them bore any rational relation to the judgment in this case. First of all, the amount of this award was not out of proportion to the severity of the injury in either the judge or the jury's eyes. Secondly, judgments in excess of $1 million in Wisconsin are paid out of a state fund built from physician insurance premium contributions. This fund is currently valued at over $1 billion and can easily pay the judgment out of its current year investment income. Upholding the judgment, therefore, should not require an increase in medical provider insurance costs or raise overall health care costs to the public.

In Colorado, noneconomic damages in medical malpractice cases are capped at $300,000. In addition, the total amount of damages are capped at $1 million. This includes payments for present and future medical expenses, lost wages and other "economic" damages, regardless of how severe or costly the injury is. The court does have the power to exceed the cap for the sake of fairness in appropriate cases.

Courts around the nation are starting to scrutinize statutes capping damages in medical malpractice cases. Judges are no longer willing to take legislative arguments at face value but are now doing their own research to see whether the arguments are true and rationally related to the caps, and whether treating medical malpractice victims differently from other personal injury or wrongful death victims is a constitutional practice.

Colorado Trucks Found with High Rate of Bad Brakes During Surprise Inspections

A period of unannounced roadside inspections of commercial vehicles conducted last Spring revealed a high number of semi-trucks in Colorado with brake system violations. Brakes which are out of adjustment or have worn pads, linings, drums or rotors are by far the major reason 18-wheelers are placed out of service during roadside inspections. A brake failure at a critical moment on the highway can result in a catastrophic truck crash causing serious personal injury or wrongful death to the truck accident victims.

The surprise inspections were conducted with the help of the Federal Motor Carrier Safety Administration (FMCSA) as part of Operation Airbrake, an ongoing brake safety program spearheaded by the Commercial Vehicle Safety Alliance (CVSA). Nationally, 7,701 tractor-trailers were inspected, with 10.1% found to have brake adjustment issues and another 8.7% found with out-of-service (OOS) violations for brake components. In Colorado, however, the inspections found 10.8% of trucks with brake adjustment problems and 13.3% with brake component issues, placing Colorado in the top ten of jurisdictions with the highest violations of the 24 jurisdictions inspected.

In addition, another 6.7% of the big rigs were placed out-of-service for other issues uncovered during the inspections, such as driver's license and registration problems.

Another aspect of Operation Airbrake is Brake Safety Week, which includes a series of pre-announced inspections. This year Brake Safety Week was held from September 7-13 and was expected to cover 30,000 commercial vehicles. Hopefully, the surprise inspections last May served as a wake-up call to the trucking industry to get their fleets in compliance with safety codes, so that the results of Brake Safety Week inspections will show an overall improvement in Colorado and across North American trucking.

Inspection Event Shows Truck Safety Still Has A Long Road to Travel

For 72 hours from June Third to June Fifth earlier this year, the Federal Motor Carrier Safety Administration (FMCSA), in conjunction with the Commercial Vehicle Safety Alliance (CVSA), stopped and inspected more than 73,000 trucks and buses at about 2,500 locations across the country, as well as Mexico and Canada. The safety event, known as Roadcheck, is now in its 27^th year. The results of the inspections overall showed improvement over recent years, but the sheer amount of safety violations uncovered leaves no doubt that we still have a long way to go to improve road safety within the trucking industry.

Roadcheck 2014 inspected trucks as well as drivers. Of the 73,475 vehicles inspected, 18.7% were pulled from service for safety violations. That's 13,740 trucks, or about one in every five vehicles inspected. Of course, Roadcheck was able to inspect only a fraction of the more than two million semi-trucks and tractor-trailers registered in the U.S.

The biggest issues requiring trucks to be placed out of service were brake system issues, brake adjustment violations, and tire/wheel violations. These three areas, each of which can lead to catastrophic truck accidents and serious personal injury to others involved in a truck crash, accounted for 61% of the out-of-service violations.

Of the drivers inspected, 4.8% of truckers (about one in 20) were tagged with out-of-service violations of their own. Nearly half of those violations were for violating FMCSA rules regarding maximum hours of service for drivers, which currently allow truckers to drive 11 hours in a 14-hour workday, with workweeks that can last for six or seven consecutive days. Other serious issues found among drivers were falsification of logbooks, being disqualified from driving, and driving with a suspended license.

Jury Awards $3.27 Million Against Maker of Defective Medical Device, More to Come

Earlier this month, a jury in West Virginia handed down a $3.27 million verdict against medical device maker Ethicon, inc., a division of Johnson & Johnson. The plaintiff in Huskey v. Ethicon had been implanted with a pelvic mesh to treat stress urinary incontinence. The jury found Ethicon guilty of manufacturing a defective medical device and failing to warn about adverse side effects such as infection, bleeding and pain. The jury awarded the plaintiff $100,000 in medical costs, $200,000 for loss of consortium with her husband, $470,000 for past pain and suffering and mental anguish, and $2.5 million for future pain and suffering, mental anguish, disability, and loss of enjoyment of life.

This case is only one of 22,000 cases against Ethicon in the United States District Court for the Southern District of West Virginia, and only one of 66,000 cases total in the court against Ethicon and six other pelvic mesh manufacturers. These cases have been consolidated and transferred from all over the country to the Southern District of West Virginia by the Judicial Panel on Multidistrict Litigation, or MDL, but there are still thousands of other cases active in state courts around the country as well.

The recent case of Huskey v. Ethicon was one of several MDL "bellwether" trials being conducted by the court. The idea is that as more of these key cases are decided, the parties in the thousands of other cases will be able to reach a settlement based on the outcomes of those trials without having to litigate all the cases individually. Already, one of the device manufacturers, American Medical Systems of Endo International, has agreed to settle the roughly 20,000 cases against it for a total of $830 million.

Colorado VA Update: $15 Million paid to-date for delays in medical treatment

Back in July this blog covered the investigation of the Office of the Medical Inspector for Veterans Affairs into a Fort Collins VA outpatient clinic for medical malpractice (see Fort Collins VA Clinic Under Fire for Falsifying Medical Records, Delaying Treatment). Clerks at the clinic were allegedly instructed to falsify appointment records to make it appear that patients were seen within the agency’s timeline goal of 14 days, when in reality patients had to wait several months to be seen by a doctor.

Since our post in July, more than 400 claims have been filed against the VA for providing substandard healthcare and committing medical malpractice through unreasonable delays and serious medical errors. Close to $15 million in damages has already been awarded to Colorado veterans based on lawsuits filed.

Examples of medical malpractice revealed by VA documents include:

• Wrongful removal of a patient’s prostrate due to a mix-up of patient records
• Failure to diagnose and treat a retinal detachment in a timely manner, resulting in the loss of vision to a patient’s right eye
• Surgical clamp left inside patient’s chest after triple bypass surgery
• Improperly performed penile prostheses operation, resulting in severe pain
• Improper intubation before surgery, leading to a lack of oxygen and permanent brain damage

 If you or someone you know has been subjected to similar malpractice by the VA, ranging from unreasonable delays in treatment to serious medical mistakes, contact Paulsen & Armitage, LLC in Denver for a free consultation with experienced Colorado medical malpractice attorneys.

Tracy Morgan Sues Wal-Mart Over Injuries Sustained in Semi Truck Crash

Actor/comedian Tracy Morgan, known for his work on the television shows Saturday Night Live and 30 Rock, is suing retail giant Wal-Mart over injuries sustained when his limousine bus was struck by a tractor-trailer on the New Jersey Turnpike last month. The driver of the truck, Kevin Roper of Georgia, is not named as a defendant in the lawsuit. Rather, the complaint alleges that Wal-Mart was negligent in several ways, including:

• Having Roper commute 700 miles to work and then assigning him a long driving shift, rather than having him report to a distribution facility closer to his home

• Allowing Roper to drive a truck whose automatic brakes and collision-avoidance systems were not working properly

• Allowing drivers to routinely work shifts longer than are permitted under FMCSA regulations, including driving beyond the maximum hours per day, driving too many consecutive hours without rest, and driving beyond the maximum allowed hours per week

Roper is said to have gone without sleep for 24 hours prior to the crash. He also may have been driving beyond allowable FMCSA regulation limits. The Federal Motor Carrier Safety Administration allows a trucker to work up to 14 hours a day, with a maximum of 11 hours behind the wheel. At the time of the accident, Roper had already clocked 13 ½ hours on the job.

Roper's own negligence could make him liable for the injuries caused. As Roper's employer, Wal-Mart may be held liable for the negligence of its employee, as well as its own negligence and reckless and intentional misconduct as outlined in the lawsuit.

Florida Supreme Court Finds Ample Evidence Against Caps on Damages in Medical Malpractice

In March of this year, the Supreme Court of Florida held that the state law putting a cap on noneconomic (pain and suffering) damages in medical malpractice cases of wrongful death was unconstitutional (see blog, March 15, 2014). The court in Estate of McCall v. U.S. went on at length to produce studies, reports and testimony that all found that caps on damages have little relevance to the so-called medical liability crisis which is so often cited as the need for damages caps.

One report cited by the court was a study conducted by Weiss Ratings, an independent research and analysis firm covering the medical insurance industry. This report showed that premiums in several high-risk specialties (internal medicine, general surgery, obstetrics/gynecology) actually increased at a slower rate in states that did not have damages caps compared to states that did. In addition, in states without caps, medical liability insurance premiums either remained static or declined more often than in states where caps were in place. The conclusion drawn by the study's authors was that other factors played a more important role in medical malpractice premiums than caps on damages did.

The court found other reports that deflated the myth of doctors fleeing states or areas of practice due to malpractice concerns and insurance rates, including a report by the federal General Accounting Office. In addition, some of the court's best evidence came from the insurance industry itself. In testimony before the Florida Senate Judiciary Committee, the President of First Professionals Insurance Company testified that a $500,000 cap on noneconomic damages would accomplish "virtually nothing" to reduce insurance premiums for medical malpractice. The president, Robert White, testified that the insurance company had a more positive experience in Florida when there were no damages caps than it did in Missouri, which had caps at the time.

Fort Collins VA Clinic Under Fire for Falsifying Medical Records, Delaying Treatment

A recent investigation by the Veterans Affairs Office of the Medical Inspector uncovered a practice at a VA outpatient clinic in Fort Collins where clerks at the clinic were taught to falsify appointment records to make it look like patients were being seen within the agency goal of 14 days, when in actuality many patients waited months to be seen. A copy of the probe's findings was provided to USA TODAY, which wrote a piece on the investigation. The Chicago Tribune has also picked up on the story and reports on the calls from legislators for criminal investigations into the actions at the VA.

This news is particularly disturbing in light of recent allegations by a former doctor and whistleblower that dozens of veterans died due to delays in treatment at a Phoenix VA hospital. This matter is currently under investigation by the VA Office of Inspector General, but it includes claims that workers there were falsifying records to mask delays in treatment much like the OMI found present in Fort Collins. Unreasonable delays in diagnosis or treatment may be considered medical malpractice, with doctors and hospitals potentially liable for any serious personal injury or wrongful death that results.

Denver HOV Lanes May Ease Traffic Congestion but Pose Risks of Motor Vehicle Accidents

High Occupancy Vehicle (HOV) lanes have been around since 1969, although their growth in popularity has mostly been seen over the last 25 years. The Colorado Department of Transportation (CDOT) maintains five HOV facilities covering over 30 highway miles in the Denver area, most of which have been open for the last 25 or 30 years. It only takes two occupants to qualify for the HOV lane in Denver, and even single-occupancy vehicles (SOVs) can use the HOV lanes in Downtown Denver and on Pecos St. to the I-25, so long as they pay a toll. In addition, CDOT has a hybrid permit plan in progress, which will allow even more SOVs to access the carpool lanes.

HOV lanes may be a boon to easing traffic during rush hour and lessening Denver's smog problem by encouraging carpooling, but they pose a special risk of car accidents that some drivers may not recognize or appreciate. The danger involved in HOV use stems from the difference in speed between cars travelling in the HOV lane versus the adjacent lane. During rush hours, you have cars traveling slowly in the lane adjacent to the carpool lane trying to enter the carpool lane. At the same time, you have cars already in the carpool lane and traveling at much higher speeds trying to merge with the slower traffic to the right in order to make their highway exit. This is a recipe for disaster, with a propensity for causing dangerous rear-end collisions and sideswipes which can inflict serious personal injury such as head, neck and back injuries from whiplash to traumatic brain injury (TBI) and permanent spinal cord paralysis such as paraplegia or quadriplegia.

The HOV/Express lanes in Denver vary from place to place, which can create confusion for drivers. Some HOV lanes are separated from the other lanes with a buffer, while others have a reversible barrier to allow switching the direction of the HOV lane at different times of day. One HOV lane - on US 25 northbound between Bowles and Alameda Ave. and the Southbound Platt River Drive segment - has no buffer or barrier and only the standard dash line to set it apart. While barriers may seem to reduce the likelihood of accidents, they also limit the distance where cars can enter and exit the HOV lane, making those areas particularly dangerous places for collisions.

You can minimize your risk of being involved in an accident by not traveling in the lane adjacent to a carpool lane, which has statistically significant more accidents than other lanes to the right. Of course, if you are needing to enter or exit the carpool lane, the adjacent lane simply cannot be avoided. If you have been involved in a motor vehicle accident in or near the carpool lane, there are many legal and factual issues to consider, such as each driver's level of contributory negligence and whether the road was properly designed in the first place. An experienced car accident attorney can help you work through the issues and determine what amount of compensation may be due to you to help you with your expenses from the accident.

Florida Supreme Court Makes History by Rejecting Medical Malpractice Damage Caps on Noneconomic Damages in Wrongful Death

The Florida Supreme Court has sent shockwaves through the legal world with its recent pronouncement that the state's cap on noneconomic damages in medical malpractice cases is unconstitutional when applied to wrongful death actions.

The case involves a young woman who died shortly after giving birth due to a series of medical errors made during the delivery. Her estate filed a wrongful death lawsuit in federal court under the Federal Tort Claims Act, since the woman received her medical care at a clinic on a U.S. Air Force Base as an Air Force dependent.

The United States District Court for the Northern District of Florida applied Florida law, namely the Florida Wrongful Death Act, to determine the liability of the doctors and the amount of damages owed. In its 2009 Order and Final Judgment, the court awarded slightly under $1 million in economic damages and $2 million in noneconomic (pain and suffering) damages, with $500,000 of that amount going to the infant child and the other $1.5 to the deceased woman's parents. However, applying the Florida damages caps, the court was forced to cut the noneconomic damage award in half from $2 million to $1 million.

The plaintiffs argued that the damages cap was unconstitutional on several grounds. The District Court did not have authority to ask the Florida Supreme Court to rule on the constitutionality of the law, but stated that it did not believe the court would overturn the caps.

The case was appealed to the United States Court of Appeals for the Second Circuit, which in 2011 upheld the application of the damages cap by the District Court. The court held that the damages cap did not violate the Equal Protection clause or Takings clause of U.S. Constitution or the Takings clause of the Florida Constitution. As to the rest of the plaintiff's constitutional arguments, the Court certified those questions to the Florida Supreme Court, asking it to rule on the constitutionality of Florida's statute in relation to Equal Protection, Access to Courts, Trial by Jury, and Separation of Powers under the Florida Constitution.

The case was argued to the Florida Supreme Court in 2012, which after deliberating for two years, finally released its decision earlier this month. The court held "that the cap on wrongful death noneconomic damages provided in section 766.118, Florida Statutes, violates the Equal Protection Clause of the Florida Constitution." The court quoted Article I, Section 2 of the Florida Constitution, which states that "All natural persons, female and male alike, are equal before the law." Since it found the caps to be unconstitutional on equal protection grounds, the court did not need to address the other questions certified by the Eleventh Circuit.

According to the court, the cap on wrongful death noneconomic damages imposes "unfair and illogical burdens" in cases involving multiple claimants as compared to cases with only one claimant. Not only is this disparity arbitrary, it does not bear any rational relationship to the legislature's stated reason for adopting caps in the first place, which was to address an alleged crisis in Florida medical malpractice insurance. The court went on to question whether such a crisis ever actually existed or was merely manufactured to provide a premise for enacting "tort reform."

Colorado has the best medical liability environment in the country, according to the doctors

The American College of Emergency Physicians (ACEP) recently released its report card of emergency medicine in the country for 2014. The association ranked Colorado number one (again) among the states for its Medical Liability Environment. Only two states made an A in this category, and the nation overall received a C- for its medical liability environment.

What is it about Colorado's medical liability environment that leads this physician group to rank it the best in the country? Following are the features cited in the report that led to Colorado's superior grade:

• Allowing health care providers to apologize to patients without those statements being admissible in court as evidence of wrongdoing
• Maintaining expert witness rules that provide for case certification
• Requiring expert witnesses to be of the same specialty as the defendant and licensed to practice medicine in the state
• Allowing malpractice awards to be offset by collateral sources
• Maintaining its $300,000 cap on non-economic damages despite continuous efforts to increase it

ACEP is a professional organization of emergency medicine physicians in the U.S. that engages in legislative and regulatory advocacy on behalf of its membership, among other activities. The fact that a lobbying group for doctors thinks so highly of Colorado's medical liability environment might serve as a signal to consumer groups and lawmakers who are concerned about the welfare of patients injured due to medical malpractice and want to see victims of medical negligence fairly compensated for the harm done to them by medical errors. Maybe Colorado shouldn't try so hard to consistently be the "best" in the country in this particular area.

Florida Supreme Court Refuses to Implement Rule Restricting Expert Testimony in Medical Malpractice Cases

Earlier this month, the Florida Supreme Court declined to adopt a rule into the state's Evidence Code that would have limited which doctors could testify as expert witnesses in a medical malpractice case. The new rule was part of SB 1792, a pro-doctor medical malpractice bill passed into law earlier this year.

Medical experts are a critical part of any medical malpractice case. In order to be successful, an injured plaintiff must provide an expert who can testify as to what the appropriate standard of care was in the particular situation and also deliver an opinion that the defendant doctor violated that standard of care. Under Florida law currently, a plaintiff's medical expert can be a doctor practicing in the same specialty or a similar specialty that involves the same medical condition. The judge in a medical malpractice case decides whether or not a proposed expert is qualified before the doctor is permitted to serve as an expert witness.

Under the new rule, which modifies Florida Statute 766.102, a plaintiff's expert must practice the exact same kind of medicine as the defendant doctor. The law also limits the ability of judges to decide whether a proposed doctor is qualified or disqualified from serving as an expert witness.

Both sides of the issue disagree as to the effect of the court's decision not to amend the Florida Evidence Code to incorporate the change in the law. Proponents of the law say that even though the court declined to integrate the rule into the Evidence Code, it did not strike down the law as unconstitutional. Opponents of the law say that the court did exactly that. You can read the court's decision here. Medical malpractice lawyers in the state agree with the Board of Governors of the Florida Bar that to impose the rule would have a chilling effect on the ability to obtain expert witnesses and would be prejudicial to the administration of justice.

Florida Law More Restrictive than Colorado

Colorado statute 13-64-401 allows a doctor to testify as an expert witness so long as the doctor is a licensed physician who can demonstrate training, education, knowledge and experience in the evaluation, diagnosis and treatment of the subject disease or injury, and is substantially familiar with the applicable standards of care and practice related to the incident. Also under the law, a doctor who is an expert in one medical subspecialty cannot testify against a physician in another medical subspecialty, unless the standards of care and practice in the two fields are similar. This law arguably is more flexible than the rule in Florida even before the law was changed.  

Christmas Car Crash in Northeast Denver Leaves One Woman Dead; Other Driver Flees the Scene

It has been reported that a two-vehicle collision occurred in northeast Denver around 12:30 in the morning of December 25^th, when a Ford Explorer collided with a minivan at 51^st Street and Peoria. A woman driving the minivan later died from the collision, with an adult male and two children who were passengers in the vehicle being hospitalized with non-life-threatening injuries. It was also reported that the driver and passenger of the other vehicle fled the scene, with one of them later being arrested and facing charges of hit and run, vehicular assault, and vehicular homicide.

Colorado law (C.R.S. 42-4-1601, 1603) places certain duties on people involved in a car accident, and failure to follow the law can expose violators to both civil and criminal liability. If you are involved in a serious accident, particularly where an injury is involved, you are obligated to alert the police (call 9-1-1) and remain on the scene until law enforcement arrives. You are also required to render aid to an injured person within your abilities, which may include transporting the victim to the hospital or making other arrangements, such as calling 911 and requesting an ambulance. Finally, you are required to exchange information with the other driver, including your name, address, vehicle registration number, and driver's license number on request.

Leaving the scene of an accident can be either a misdemeanor or a felony, depending upon the severity of the accident, with up to twelve years in jail as a punishment for the crime. As to civil liability, a person whose negligence or wrongful conduct caused the accident can be liable for economic and noneconomic damages, including medical expenses, lost wages, and pain and suffering. By leaving the scene and possibly showing disregard for the injured victim, the negligent driver may be exposed to punitive damages as well. The civil case will likely be stayed until the criminal case is concluded, and a conviction for hit and run or leaving the scene of the accident can be powerful evidence used against the defendant in a civil action.

In the event a hit and run driver is never found, the injured victim may still be able to recover against his or her own automobile insurance policy, if the insured was carrying Uninsured Motorist coverage on the policy.