The Battle Rages On for Malpractice Caps

By Medscape National, News Source

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  • November 29, 2016

More Tension Over Malpractice Caps

A Florida appeals court is the latest judicial body to weigh in on the vexing issue of the state’s medical-malpractice cap, according to a report by The News Service of Florida, posted on News4Jax, among other news sites.

In 2003, the Sunshine State legislature and then-Governor Jeb Bush approved a cap on noneconomic damages in medical-malpractice cases, arguing that the escalating liability insurance costs doctors were facing demanded such action. The law remained in place for more than a decade—until, that is, the state Supreme Court intervened. In 2014, after its review of a suit brought by the family of a woman who had died after giving birth in a Florida hospital, the high court ruled caps to be unconstitutional in wrongful-death cases.

Then, in June of this year, the high court was asked to rule on the constitutionality of the state’s cap in personal-injury cases. Justices haven’t yet issued their ruling, but, in the interim, the state’s Second District Court of Appeal has handed down its own decision, which holds that damage caps are, in fact, unconstitutional in personal-injury cases. Earlier, another appeals court—the Fourth District Court of Appeal—reached a similar conclusion in the very same personal-injury case now before the Florida Supreme Court.

The Second District Court case involves a suit brought by Iala Suarez against the Peace River Regional Medical Center (now Bayfront Health Port Charlotte), in Port Charlotte, Florida. In her suit, Suarez claimed that, during her pregnancy, the negligent care she received at the center led to her daughter being born with severe neurologic injuries.

At trial, the jury awarded Suarez $5.25 million in noneconomic damages, with the hospital responsible for a portion of that. The defendants appealed the award, citing the state’s existing cap on noneconomic damages. The Second District Court tossed out this appeal, however, arguing that, like the Fourth District Court, it believed that limits on noneconomic damages are unconstitutional in personal-injury cases.

Meanwhile, observers on both sides of the issue are hoping for a definitive ruling from the state’s high court.

A Harsh Attorney Causes Med-Mal Mistrial

Can a plaintiff’s attorney who bullies a defendant in a medical-malpractice suit jeopardize his own case? Yes, as a report in Pennsylvania’s The Citizens’ Voice makes clear.

The dramatic and ultimately trial-ending scene unfolded in a suit brought against Geisinger Wyoming Valley Medical Center, in Plains Township, Pennsylvania, and members of its clinical staff, including then-Geisinger ob/gyn Lucinda S. Antosh, now married and using the surname Mirra.

The multimillion-dollar suit was filed by the husband of Candice L. Perrillo, who died in 2012, 3 days after giving birth to a premature but otherwise healthy baby. In his suit, the plaintiff claimed that Geisinger doctors had “ignored repeated warning signs and allowed [his wife’s] urinary tract infection to run rampant, causing organ failure.”

During the fourth day of trial, Antosh Mirra was subjected to particularly withering questioning from the plaintiff’s attorney, Patrick Dougherty. Among other things, Dougherty got Antosh Mirra to acknowledge that, although she had acted clinically appropriately, she hadn’t fully reviewed the patient’s medical history. This review would have revealed that the patient had a history of antibiotic-resistant bacterial infections. Under intense questioning, Antosh Mirra also admitted that, after she had prescribed amoxicillin for Candice Perrillo to treat a previous infection, she failed to order a urine culture, which would have shown whether or not the patient’s system was free of bacteria.

With this last admission, Dougherty pounced: “Are you playing Russian roulette with my client’s life?” The comment caused Antosh Mirra to sob uncontrollably on the stand, prompting trial judge Thomas F. Burke Jr to call for a recess. Out of earshot of the jury, he reprimanded Dougherty for his comment, which, as the judge explained, implied a motive, was clearly inappropriate, and unsettled at least one jury member.

“There was at no point a conscious effort [on the part of the doctor] to inflict harm on the patient,” said Burke, who ordered a mistrial.

The lead attorney for Geisinger said he was disappointed by the development, because it postponed jury deliberations. The hospital system had argued that Perrillo died as a result of preeclampsia, a known complication of pregnancy. For his part, Dougherty said he hadn’t intended to make the comment he did, but was simply trying to suggest that Antosh Mirra was making “educated guesses” about how to proceed instead of ordering conclusive tests.

“You know, I don’t prepare these things,” he added. “I mean, I write the questions down, but that [question] was my instinct.”

The trial is scheduled to restart at a later date with a new jury.

Mock Trial Fosters ‘Kumbaya Moment’ Between Medical Residents and Law Students

Typically, doctors and lawyers don’t rub shoulders during their respective training periods, but that is not the case at one well-known college, according to a report posted on the website of Penn State News.

An annual colloquium, started more than 10 years ago, is the brainchild of Steven J. Wassner, a professor of pediatrics at the Penn State College of Medicine and chief of the Division of Pediatric Nephrology and Hypertension at the Children’s Hospital, and Gary Gildin, professor of law and dean of Penn State’s Dickinson Law School. This year’s event was organized by Wassner and Medha Makhlouf, a clinical professor of law and director of the university’s Medical–Legal Partnership Clinic.

Eight law students and nine residents in pediatric medicine participated in the 2016 colloquium, which, as in previous years, took the form of a mock trial presented before a volunteer jury and centered on the give and take of a real-life medical-negligence suit. The law students made up the plaintiff and defense teams, and the pediatric residents served as defendants, expert witnesses, and team consultants.

Both sides prepared by poring over a binder of discovery documents and secondary materials. Then, about 2 weeks before the actual mock trial, the residents and law students on each team educated each other about the pertinent issues, both medical and legal.

“Law students come away understanding the complexity of the challenge that society faces in addressing medical errors,” explains Makhlouf. “They get a sense of the strengths and weaknesses of the tort system and the pressures that physicians face in the practice of medicine.”

This year’s presiding judge was a 1990 Dickinson Law School graduate. The Penn State News story didn’t indicate how she ruled.