Physicians increasingly face “hybrid” medical liability claims

By Tanya Albert Henry California Source

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  • October 31, 2019

SOURCE: American Medical Association

California physicians are increasingly facing “hybrid” lawsuits alleging professional negligence as well as medical battery from plaintiffs who want to avoid the state’s long-standing $250,000 limit on what juries can award for noneconomic damages in medical liability cases.

A jury recently awarded $22,246 in economic damages and $9.25 million in past and future noneconomic damages to a plaintiff who tried this approach, with the court refusing to apply limits set in California’s Medical Injury Tort Compensation Reform Act (MICRA).

The physician defendant is appealing the ruling and the Litigation Center of the American Medical Association and State Medical Societies joined with the California Medical Association and two other groups to file an amicus brief urging the appellate court to apply the law’s $250,000 cap. That should be done because the plaintiff’s claims were based on the same set of facts for a single act by a single surgeon—facts that wholly fit within MICRA’s “professional negligence” definition.

The brief filed in the Court of Appeal of the State of California, 4th Appellate District, Division Two, cites more than a dozen published appellate decisions where plaintiffs pursued hybrid claims, noting many unpublished decisions as well.

“The result, when courts allow plaintiff to characterize professional negligence as medical battery, is arbitrary decision-making by juries,” the AMA Litigation Center brief tells the court. “Juries occasionally are inflamed by the characterization of a surgical decision as ‘battery.’ Jury awards of noneconomic damages often have a punitive component. This case is an illustration.”
Dual claims from one surgery

The lawsuit, Burchell v. Faculty Physicians & Surgeons of the Loma Linda University School of Medicine, stems from a surgery performed to address a small scrotal mass that grew from a pea size mass to one centimeter in a three-month period.

The consent form Keith Burchell signed was for a “local excision of scrotal mass, possible cystoscopy.” It did not advise that immediate action would be taken to remove additional tissue without testing or consent. Gary Ray Barker, MD, performed the procedure in 2014 and discovered the mass was much larger than expected and invaded the penis.

Dr. Barker, without consulting Burchell’s ex-wife who was authorized to make medical decisions on Burchell’s behalf when he could not, removed a significant portion of Burchell’s penis because he knew an invasive mass in the area threatened the urethra. It resulted in the man having no feeling in his penis and cosmetic and functional deformities.

Burchell sued, claiming professional negligence and saying Dr. Barker didn’t inform him additional tissue might need to be removed and that he had not consented to such. He also claimed medical battery, alleging that he consented to a certain medical procedure but the physician performed an additional and substantially different procedure he had not agreed to undergo.
Going beyond compensation

Burchell’s attorney urged the jury to send a message, the AMA Litigation Center brief tells the court. He compared Burchell’s case to the McDonald’s hot coffee case, the Ford Pinto case and the Chevrolet exploding tank case. The brief notes that he wrapped up by saying: “Send the message the patient is in control. Send the message that damages to human beings are significant and need to be properly compensated.”

The jury sent a message, finding there was medical negligence and medical battery, awarding the more than $9 million in noneconomic damages. When Dr. Barker asked the trial court to apply MICRA, the court denied his motion.

The AMA Litigation Center tells the court that “the award is excessive, precisely because it was calculated to send a message. If the award had been calculated only to compensate [Burchell] for his nonpecuniary loss, it would have been for far less.”

The award should be subject to MICRA because Burchell “did not plead that the surgeon intended to defeat the patient’s wishes, let alone intend to harm the patient, and the jury did not find that the surgeon had such intent. Instead, [Burchell] proved his case by relying upon expert witness opinion testimony that the surgeon breached the standard of care in deciding to proceed as he did.” And that, the brief says, falls under professional negligence to which MICRA applies.