1. Cady, Rebecca F. JD, BSN, RNC
  2. Walters, Robert Esq.

Article Content


Tenet to Undergo Informal SEC Probe

In late November 2002, the Associated Press reported that the SEC has opened an informal file on Tenet Healthcare Corporation, a company already under federal scrutiny for Medicare payments. Tenet officials have met with SEC representatives to discuss Medicare outlier payments as well as an apparently unusual high amount of trading in Tenet stock during the month of November.


Implementation of California Law Regarding Staffing Ratios May Be Delayed

In early December 2002, the California Healthcare Association asked the California Department of Health Services to consider delaying implementation of the first legally mandated staffing ratios by 2 years. These ratios were initially set to take effect January 1, 2004, but the CHA has asked to delay the date to 2006. The rationale for the delay includes allowing time for the state to graduate the first group of about 2500 new nurses under a new grant initiative announced by the Governor in September. The CHA also asserts that the ratio plan does not offer needed flexibility, for example, prohibiting charge nurses from helping with nursing duties while another nurse is on break, and that changes are needed to increase flexibility.


Hospital, Doctors Responsible for Baby's Severe Handicaps

On December 9, 2002, a Hayward, California, jury awarded $85 million in damages to the family of a 5-year-old boy whose severe permanent disabilities were found to have been caused in part by the professional negligence of an on-call pediatrician. The jury specifically found the on-call pediatrician only 15% responsible for the boy's injury, but found his primary physician 70% responsible and Washington Hospital in Fremont 15% responsible. The damages will be further adjusted in a hearing scheduled for January on the application of the Medical Injury Compensation Reform Act (MICRA) to the verdict. MICRA provisions typically reduce jury verdicts in light of related settlements in the same litigation. Of the verdict, $73 million was reported to be for the boy's past and future medical expenses, $11 million for lost future earnings, and $750,000 for pain and suffering, which was reduced to $250,000 under California's MICRA general damages cap.


According to the complaint, medical tests found the boy to be suffering from hyperbilirubinemia and kernicterus, conditions that occur in newborns when their livers are not adequately developed to break down a blood waste called bilirubin, which becomes a potent neurotoxin if allowed to accumulate in the body. Plaintiffs alleged that the diagnosis was not made and treatment did not begin until the case was turned over to a neonatal specialist. Plaintiffs further contended that because the boy did not receive prompt treatment, his organs were poisoned by the substance, leaving him a quadriplegic and suffering from cerebral palsy.


Couple Seeks Determination by California Supreme Court that a Sperm Bank Is Not a Healthcare Provider

After receiving an adverse decision from a California Court of Appeal for the Second District, the parents of an artificially inseminated daughter who contracted a life-threatening disease traced back to an anonymous sperm donor filed a petition for review on October 10, 2002 with the California Supreme Court to raise the level of damages they can pursue in their negligence suit against their local sperm and blood bank. (Johnson et al. v. Superior Court for the State of California, County of Los Angeles, No. S110577.)


The Court of Appeal ruled that appellants/plaintiffs Diane and Ronald Johnson, of Santa Barbara, California, could not seek punitive damages from California Cryobank Inc. because it determined that the Los Angeles company fell under the definition of "healthcare provider." As a consequence, the statutory MICRA cap of $250,000 for damages applied. The Johnsons seek a determination by the Supreme Court that the sperm bank was misclassified as a matter of law.


Louisiana Appellate Court Vacates $2.5 Million Judgment Against Clinic for Failure to Notify of HIV

A Louisiana appeals court vacated the entry of a $2.5 million default judgment for a woman who says her life expectancy allegedly was cut 24 years by a clinic's 4-month delay in informing her that she had tested HIV-positive. [Cornish v. Doctors Care LLC, No. 2002-CA-0285, rehearing denied (La. Ct. App., 4th Cir., June 28, 2002).]


In an ordinary negligence claim against Doctors Care LLC, 40-year-old Marie Cornish asserted that the failure of the clinic's clerical staff to promptly forward her the results of an HIV test she took kept her from starting a regimen of preventive drugs and allowed her HIV to progress to full-blown AIDS. Cornish filed suit on August 16, 2001; however, the clinic failed to reply. After a hearing on the Plaintiff's request for preliminary default judgment on September 26, 2001, the court below granted the motion in the amount of $2.5 million plus costs and interest. Doctors Care appealed, claiming that the trial judge erred in conferring the default judgment in a medical malpractice case where the plaintiff's only causation evidence was her hearsay statement that she would not have developed AIDS had she received timely notification and treatment of her HIV condition.


Louisiana's Fourth Circuit Court of Appeal rejected the clinic's characterization of Cornish's claim as one for medical malpractice, repeating that it was one for simple negligence based on the clerical mistake involving her test results. However, the appeals court vacated the default judgment, holding that Cornish hadn't presented evidence sufficient to establish a prima facie negligence case. Although the trial court had determined that Cornish had proved by a preponderance of the evidence that had she received treatment for HIV before the 4 -month delay, she would have had 24 more years to live, the appeals court said there was nothing in the record to support such a conclusion. In addition, the appeals court indicated that there was no testimony regarding how rapidly the HIV infection would develop into AIDS or death in this particular individual's case, remanding the case to the trial court.



In a Kentucky case, the trial judge erred in failing to instruct the jury regarding evidence of the hospital's statutory duty to secure a patient's informed consent for surgery to remove his entire penis. Even though the nurses' efforts in securing informed consent may be ministerial in nature, the hospital was not thereby relieved of its duty to secure the patient's informed consent. [Rogers v. T.J. Samson Community Hospital 276 F.3d 228 (2002).]


In a California case, certain patients brought a class action suit against a hospital for declaratory judgment that it was not entitled to liens on tort recoveries or uninsured motorist (UM) benefits after receiving payment from health insurers. The Court of Appeal held that: (1) the hospital's lien rights under the Hospital Lien Act (HLA) did not extend beyond the amount it agreed to receive from the health insurers as payment in full for services provided to the patients; (2) the hospital was entitled to no lien where it could not collect from the patient after receiving payment from the insurer; (3) the hospital was entitled to a lien after the insurer advanced money to it under CaliforniaCare plan; and (4) the assertion of liens was protected by the absolute litigation privilege for communications in the course of judicial or quasi-judicial proceedings. This case has been granted review by the California Supreme Court, so caution should be used if citing this case in a legal proceeding. We will monitor the status of this case in future issues. [McMeans v. Scripps Health, 123 Cal.Rptr. 2d 143 (2002).]


Parents of a disabled child filed a medical malpractice action as "next friend" against hospital and doctors in connection with complications occurring during childbirth. After granting defendants' motion in limine to have child excluded from courtroom during liability phase of trial, the Starke County Circuit Court entered judgment on jury verdict in favor of defendants, which the Child appealed and the Court of Appeals affirmed. The Supreme Court held that the constitutional right to a jury trial entitled the child to be present in the courtroom during both the liability and damage phase of her malpractice action against healthcare providers, abrogating Gage v. Bozarth, 505 N.E.2d 64 (Ind.Ct.App.1987). [Shelamiah D. Jordan v. Michael Deery, M.D., et al., Case No. 75S05-0106-CV-310 (Supreme Court of Indiana, Nov. 22, 2002). Citation: 778 N.E.2d 1264.]


Patient brought action against his clinic, his primary care physician, and health maintenance organization (HMO) to recover for infliction of emotional distress and bad faith in connection with clinic's role in utilization review and physician's advice to drop appeal. Physician was dismissed on demurrer. The San Diego County Superior Court struck allegations of entitlement to punitive damages, to which Patient petitioned for writ of mandate. The Court of Appeal held that patient's claims were subject to the statutory requirement of court approval of a claim for punitive damages in an action for damages arising out of the professional negligence of a healthcare provider. [William Palmer v. Superior Court of San Diego County (Sharp Rees-Stealy Medical Group, Inc., Real Party in Interest), No. D040486 (Court of Appeal, Fourth District, Division 1, California. Nov. 19, 2002). Citation: 103 Cal.App.4th 953, 127 Cal.Rptr.2d 252.]



Greenwell v. Kaplan (California Contra Costa County Superior Court Doc. No. MSC0002889)

In this medical malpractice case, Plaintiffs claimed that medical negligence during labor and delivery resulted in their infant being born with cerebral palsy. The Plaintiffs were Caitlin Greenwell, now 3 years old, and her parents, Julia and Steven Greenwell. The defendants were Alan Kaplan, MD and John Muir Hospital Medical Center. Plaintiff Julia Greenwell was admitted at defendant hospital at approximately 41 weeks gestation to induce labor. Plaintiffs alleged that the nurses were negligent for increasing Pitocin in the face of a nonreassuring fetal monitor strip, which in combination with pregnancy-induced hypertension, led to an episode of acute asphyxia. Plaintiffs also alleged that the doctor was negligent for ordering an increase in Pitocin, and that he and the hospital were negligent for not proceeding to perform a C-section sooner. Plaintiffs sought to recover damages and the parents also sought damages for emotional distress. Settlement demands were made by Plaintiffs of $1,000,000 to defendant Kaplan in March 2001 and $3,500,000 to defendant John Muir Hospital in June 2001, both of which were rejected. Mediation also was unsuccessful.


On October 2, 2002, after a 22-day trial, and after having deliberated for 11/2 days, the jury awarded Plaintiffs the sum of $59,317,500: $17,500 was for past medical special damages; $49,000,000 gross ($6,430,000 present cash value) for future medical care special damages; $9,800,000 gross ($904,000 present cash value) for future loss of earning capacity; $100,000 noneconomic damages for the child; $200,000 emotional distress damages for Julia Greenwell; and $200,000 emotional distress damages for Steven Greenwell. All damages were awarded against defendant John Muir Hospital only, and there was a defense verdict for Dr. Kaplan. The jury voted 11 to 1 on liability and damages against John Muir Hospital and 9 to 3 in favor of Dr. Kaplan.


James Winkle v. Thomas Purtzer MD, Michael Potter MD, Rogue Valley Neurosurgical (Oregon - Jackson County, Circuit Court Doc. No. 99-0702-LI)

Plaintiff, age 58, was admitted to defendant hospital by his attending physicians (Defendant Purtzer and Defendant Potter). Defendant Rogue Valley Neurosurgical allegedly entered into a healthcare provider-patient relationship with Plaintiff to provide healthcare services. The attending physicians advised Plaintiff that he required back surgery (fusion) utilizing "pedicle screws," for which a consent form was signed. Plaintiff alleged that Defendants without Plaintiff's approval or consent placed an experimental device in his spine instead of the previously discussed and agreed upon pedicle screws. Plaintiff further contended as a direct result of failing to obtain his informed consent, an offensive and harmful foreign object was placed within his body resulting in severe and permanent dysfunction/pain with physical and mental suffering. Following an 8-day trial, on September 10, 2002, a jury awarded Plaintiff $1,476,520. The verdict included $251,520 economic damages and $1,225,000 in non-economic damages. The jury found Defendant Potter 100% negligent and Defendant Purtzer 0% negligent.


Confidential v. Confidential (California - Ventura County Superior Court Doc. No. SC028674)

The Plaintiff was a 45-year-old unemployed woman with severe multiple sclerosis when she entered the hospital in August 2000 for rehabilitation and had no brain deficits upon admission. She was inadvertently given an overdose by the nurse of a rarely used medication (4-aminopyridine), used in difficult cases of multiple sclerosis. This drug also is known to cause seizures when given in toxic ranges. The nurse called the rehabilitation physician, who ordered immediate transfer to the emergency room for stomach pumping (gastric lavage). The order was not carried out by the emergency room doctor. The drug was absorbed, leading to severe seizures (status epilepticus) and brain damage with cognitive deficits. Plaintiff alleged that (1) the hospital nurse negligently overdosed the patient with the medication; (2) the rehabilitation physician failed to promptly and appropriately make sure that immediate treatment (gastrointestinal decontamination) was performed; and (3) the emergency room physician failed to immediately perform gastric lavage and/or administer activated charcoal to decrease the absorption of the toxic drug. As a result, Plaintiff contended that status epilepticus ensued, causing brain damage. Plaintiff sought damages of $48,520 for past medical expenses, and $409,800 for future medical expenses ($149,100 present cash value). Defendant hospital settled for an undisclosed amount during trial.


Following a 25-day trial, and after deliberating for 2 days, on August 19, 2002, the jury awarded Plaintiff $1,458,320, as follows: $48,520 past medical expenses; $409,800 future medical expenses ($149,100 present cash value); $1,000,000 pain and suffering. The total settlement was $447,620 after MICRA reductions. The jury found 70% comparative liability against defendant hospital, 30% against defendant rehabilitation doctor, and 0% against the emergency room doctor.


John Sawicki and Jeanette Sawicki v. Mukesh Pitroda, MD and Flower Hospital (Lucas County Court of Common Pleas Doc. No. CR00-2083)

Plaintiff John Sawicki presented to Defendant Flower Hospital for back surgery in December 1998. Prior to the surgery, which involved a general anesthetic, Plaintiff consulted with Defendant Pitroda, an anesthesiologist. While in recovery, Plaintiff developed a skin rash and experienced facial swelling. The following spring, Plaintiff developed a body rash with oozing blisters. Plaintiff sought treatment for the rash and was diagnosed as having experienced an allergic reaction to bromide. It was further diagnosed that the allergic reaction had caused Plaintiff to develop a photosensitive skin reaction every spring when the sun's rays become stronger. Later, it was determined that bromide was one of the elements of the general anesthetic Zemuron, which had been used in the December 1998 surgery at Defendant Hospital. Plaintiff alleged that he had informed Defendant Pitroda that he was allergic to bromide on a form provided prior to the surgery.


Plaintiff claimed $4,000 in past medical specials. Plaintiff also sought punitive damages against defendant hospital on an intent to mislead claim. Plaintiff's wife claimed loss of consortium. On August 16, 2002, after deliberating for 7 hours, the jury awarded Plaintiff $450,000 ($400,000 to John and $50,000 to the wife for her loss of consortium).


Estate of Wanda Panzer et al v. Maryland General Health Systems, Inc. and Gwendolyn Bolling, MD (Maryland - Baltimore City Circuit Court Doc. No. 24-C-01-000740)

Plaintiff's decedent, Wanda Panzer, was a 47-year-old female, who experienced acute onset of memory problems in 1999 and was also experiencing tingling in her hands. She was subsequently diagnosed with an arteriovenous malformation (AVM), an abnormal collection of blood vessels in the posterior fossa of her brain. Defendant Gwendolyn Bolling, an internist, advised Mrs. Panzer that additional testing was needed and surgery was likely. Her condition worsened, and she went into a coma and died. Plaintiff alleged that Dr. Bolling had failed to warn Mrs. Panzer about the possibility and symptoms of a brain bleed due to the AVM and the need to go to the emergency room if she experienced any of the symptoms of a brain bleed. Plaintiff further alleged that the location of the AVM required that follow-up testing and/or surgery be done on an expedited basis. After deliberating for 5 hours, on August 7, 2002, the jury awarded Plaintiff the sum of $3,420,500 against Maryland General Health Systems, which was to be reduced to $945,500 after applying the statutory cap on noneconomic damages.




An economic model to analyze the impact of False Claims Act cases on access to healthcare for the elderly, disabled, rural and inner-city poor. D. B. Matthew. 27 American Journal of Law and Medicine 439-67 (2001).


Foreword: Preventing medical accidents: Is "systems analysis" the answer? [Symposium] L.L. Leape. 27 American Journal of Law and Medicine 145-8 (2001).


Healthcare in the 21st century: Cost, quality, and access in the new millennium. 26 Nova Law Review 397-84 (2002).


The implications of patient safety research and risk managed care. T. R. McLean. 26 Southern Illinois University Law Journal 227-75 (2002).


Improving the quality of care in nursing homes: Class action impact litigation. K.L. Intagliata. 73 University of Colorado Law Review 1013-45 (2002).


Keynote address: Patient's right without health rights? S. Law. 17 Berkeley Women's Law Journal 188-201 (2002).


Let's get real: Quilting a principled approach to adolescent empowerment in healthcare decision-making. J. L. Rosato. 51 DePaul Law Review 769-803 (2002).


Medical error as false claim. J.H. Krause. 27 American Journal of Law and Medicine 181-201 (2001).


Protecting the rights, the person, and the public: a biological basis for responsible action. E.F. Torry. 11 George Mason University Civil Rights Law Journal 17-23 (2000).


Race, ethnicity and quality care: Inequalities and incentives. S.D. Watson. 27 American Journal of Law and Medicine 203-24 (2001).


The right to healthcare. T. Friesen. 9 Health Law Journal 205-22 (2001).


Rights discourse and assisted suicide. P. Lewis. 27 American Journal of Law and Medicine 45-99 (2001).


System and responsibility: Three readings of the IOM report on medical error. S.R. Latham. 27 American Journal of Law and Medicine 163-79 (2001).