Plaintiffs typically bring lawsuits in the forum, or court, that is most convenient for them. This is most often where they reside, but it may also be where an injurious act took place, or where the defendant resides. In many personal injury cases, both parties reside in the same state or district. For instance, two neighbors who run into each other during an accident in their neighborhood would be likely to seek out the same court for their dispute. But in certain circumstances, the parties may differ about where the lawsuit should be brought. For instance, a defendant may spend half of his year in one state and half of his year in another, and argue that a lawsuit brought against him should be transferred to a different state. In order to analyze where a case should be brought, courts consider a variety of factors. A recent decision by the West Virginia Supreme Court highlights the weighing of the factors that must occur.
It is widely understood in federal and state courts that certain documents are privileged and protected from the public eye, including the eyes of other parties. These include documents created in anticipation of a case proceeding to trial, or documents evidencing communications between a lawyer and his or her clients. One less well-known privilege that protects certain documents from public production is the peer review privilege. The peer review privilege, which protects documents produced in evaluating a physician, is widely raised in medical malpractice cases and is the subject of much dispute. Recently, the Supreme Court of Appeals of West Virginia sought to clarify this privilege under state law.
Courts have the power to award two different types of damages in West Virginia personal injury cases: compensatory damages and punitive damages. Compensatory damages are intended to make the injured person “whole” by compensating the person for related medical costs, missed wages resulting from time away from work, pain and suffering, and emotional distress. Punitive damages are designed to punish a person or entity being sued for particularly callous behavior.
The U.S. District Court for the Southern District of West Virginia recently explained in a medical malpractice case some of the requirements that a person must meet in order to assert a claim for punitive damages. Although the standard was recently changed, the case gives a good example of what courts look at when considering punitive damages claims.
Mother and Father sued an emergency room doctor and his hospital employer in March 2015, alleging that the doctor’s negligence contributed to their baby son’s death. Among other claims, the parents said the doctor failed to take into account when treating the baby that he showed signs of hemophilia – a rare blood disorder – and to take adequate steps to address the condition. They argued that both the doctor and the hospital failed to live up to the “duty of care” required of a physician and a hospital under the circumstances and that the hospital fraudulently misrepresented the quality of services provided in advertisements touting the expertise of their doctors. The parents asked the Court to award them both compensatory and punitive damages.
During the discovery process, parties to a lawsuit have the opportunity to seek information, documents, and other evidence from one another. It’s an essential part of litigation and one that can help a person suing for personal injury to solidify and weigh the merits of his or her case. But just because you can seek information generally doesn’t mean that you can necessarily ask for everything under the sun. A recent ruling by the U.S. District Court for the Southern District of West Virginia explains some of the basic limits on the discovery process in the medical malpractice setting.
Ms. Wilshire’s son died from cardiac arrest in August 2009, roughly four days after being discharged from Plateau Medical Center’s emergency department following treatment for acute cocaine intoxication. She later sued the hospital and Dr. Brian Love for medical malpractice, claiming that Love deviated from accepted standards of medical practice in treating her son. She also alleged that Love released her son from the hospital too early and that this contributed to his death.
In the litigation that followed, Wilshire served discovery requests on Love in which she asked him to provide a detailed history of his education. Among other information, she sought a list of the schools he attended, the degrees he earned, and the dates on which he attended each institution. After Love provided the information, which showed that he’d spent 10 years completing medical school, Wilshire informed Love that she intended to subpoena the Marshall University School of Medicine to produce Love’s education records from that institution. Love objected and filed a motion to quash the subpoena.
Recently, the West Virginia Supreme Court affirmed a circuit court’s ruling that favored a medical company accused of killing a six-year-old child. The breakdown was three to two in favor of Kanawha County Circuit Court Judge Paul Zakaib’s decision that favored Pediatrix Medical Group.
The decision concerned an incident back in September 2007, when a mother took her young daughter to Raleigh General Hospital after the latter obtained multiple bug bites on her body, resulting in a headache and fever. The Hospital initially treated the child and released her, only for her to return the following day with abdominal pain, vomiting, and a nose bleed. She was taken to the Charleston Area Medical Center and diagnosed with La Crosse encephalitis, a virus transmitted by mosquitoes that causes brain inflammation. Early in the morning on September 23, the girl complained about pain at the site of her IV, suffered from seizures, and fell unconscious. A physician employed by Pediatrix was on-call and ordered several tests, including a blood gas test and a chest X-ray, as well as anti-seizure medication. The medication did not alleviate the seizures, so the physician sought to intubate the girl. It turned out that because she suffered from respiratory acidosis, she needed to be intubated immediately. The girl ended up dying the next day.
The mother filed a lawsuit, claiming that by delaying the intubation, the physician had acted negligently. A plaintiff’s expert testified on her behalf, stating that the daughter should have been intubated once the blood gas results came back. However, the expert also admitted that he did not know when the results returned, or whether the physician knew of the results when he arrived to intubate the patient. The expert had no criticism of the physician’s actions once he intubated her.
Recently, the West Virginia Supreme Court upheld a circuit court decision in favor of a hospital that had been sued for vicarious liability. The case involved a 2007 incident where Dr. Jan Cunningham went to the emergency room of Herbert J. Thomas Memorial Hospital (“Thomas Hospital”) and was admitted as a patient by Dr. Hossam Tarakji. A few days later, Dr. Richard Fogle performed exploratory surgery on Dr. Cunningham, which led to an infection, which required numerous follow-up procedures and resulted in Dr. Cunningham suffered a permanent injury. At some point during this ordeal, Dr. Tarakji went on vacation and Dr. Thomas Rittinger took his place. Dr. Cunningham eventually sued the three other doctors for negligence and Thomas Hospital for vicarious liability.
Vicarious liability involves situations where the employer is held liable for negligent actions by the employees. In order for the employer to be liable, the actions must take place within the “scope of employment.” A hospital could be held liable for a doctor’s harmful actions during a patient’s treatment. However, it would not be responsible for a doctor’s actions if he got into a drunk driving accident because — unless he was in a hospital-owned vehicle on his way to a patient or to the hospital — he would not be acting within the scope of employment.
One hitch to Dr. Cunningham’s argument was that the three doctors were not directly employed by Thomas Hospital. Rather, Drs. Tarakji and Rittinger were employed by Hospitalist Medicine Physicians of Kanawha County and Dr. Fogle was employed by Delphi Health Partners. Both entities were named in Dr. Cunningham’s lawsuit. Dr. Cunningham argued that even if the doctors were not directly employed by Thomas Hospital, they held themselves out as actual agents of the hospital, or the hospital had a joint venture with the two other entities.
The Kanawha County Circuit Court rejected the argument that the doctors were employees or actual agents of Thomas Hospital, and so Dr. Cunningham appealed to the West Virginia Supreme Court. The Supreme Court examined Thomas Hospital’s connection to the doctors in light of the legal factors for determining the difference between an employee/actual agent and an independent contractor: (1) how the “servant” was selected and engaged; (2) the manner of compensation; (3) who had the power of dismissal; and (4) who had the power of control.
For the first factor, the Supreme Court found that the two other entities were responsible for recruiting the three doctors, not Thomas Hospital. For the second factor, the Supreme Court noted that Thomas Hospital sent compensation to Delphi and Hospitalist, which then paid Drs. Tarakji, Rittinger, and Fogle. Thomas Hospital also did not bill patients for the doctors’ services or pay for their malpractice insurance. For the third factor, while the hospital required the doctors to follow its bylaws, there was nothing to suggest that the hospital had the power to terminate the doctors directly for noncompliance. Finally, for the fourth factor — considered to be the most important — the Supreme Court found that Thomas Hospital only exercised a level of control permitted by previous court decisions, and therefore did not have the power of control. Taking all of the factors together, the Supreme Court determined that Thomas Hospital was not the doctors’ employer and thus was not vicariously liable for their negligent actions. The Supreme Court also did not accept the argument that the two other entities had a joint venture with the hospital.
After a dental procedure gone wrong, a West Virginia woman is suing her dentist for throat problems caused by a drill bit. Two years ago, Sally Neale visited Dr. David Bell’s office to have a front tooth removed. She claims that while she lay back for the procedure, she felt something slip down her throat that caused her to gag and choke. It turned out that the drill bit had come loose. Although Dr. Bell was allegedly aware of what went wrong, Neale claims that he and his assistant never offered her assistance or called 911.
Neale was able to breath following the incident, but she still needed to be transported to the hospital in an ambulance after feeling pain later that day. X-ray results showed that the drill bit was lodged in Neale’s intestines. Doctors gave Neale a prescription for Miralax and mineral oil and instructed her to repeatedly examine her fecal matter for any signs that the drill bit had passed. Neale made two more trips to the emergency room before it was determined that the drill bit had finally passed, six days after it first entered her system. However, Neale claims that as a result of the accident, she suffers from a sore throat and a raspy voice, and has more difficulty speaking than before. Neale allegedly had a procedure performed that found evidence of a small linear ulceration in her esophagus. Neale has hired a West Virginia personal injury attorney and is suing Dr. Bell for compensatory damages with pre- and post-judgment interest.
Compensatory damages are damages — otherwise known as money awarded by a jury — that provide a plaintiff with the specific amount necessary to replace what was lost and nothing more. In West Virginia, there is no statutory limit on economic damages, but there is on non-economic damages in medical malpractice actions. Non-economic damages in medical malpractice actions are limited to $250,000, though they can be raised to $500,000 under certain circumstances. The damages that Neale seeks would fall under the category of non-economic medical malpractice.
One problem that we have in West Virginia, which points to the discouraging level of drug dependency, is a high rate of doctor shopping. Patients go from doctor to doctor, or pharmacy to pharmacy, hoping to get multiple prescriptions for powerful drugs. Unfortunately, as a recent study from West Virginia University showed, this could lead to a greater risk of drug-related death.
Researchers looked at data taken from the West Virginia Controlled Substance Monitoring Program, as well as drug-related death data compiled between July 2005 and December 2007 by the Forensic Drug Database. Overall, data on more than one million people was studied, ranging in age from 18 and older. Of these people, 698 were deceased, with 25% found to be doctor shoppers, while 17.5% were found to be pharmacy shoppers.
Furthermore, researchers found that 20% of doctor shoppers were also pharmacy shoppers, and 55.6% of pharmacy shoppers were doctor shoppers. The younger the individual, the more likely the person was to suffer a drug-related death. Researchers concluded that the most likely way to slow these trends was to maintain prescription monitoring programs, which could be useful in identifying potential shoppers before they visited their first doctors or pharmacies. Such programs already exist in most states. Researchers also recommended that physicians routinely consult the Controlled Substance Monitoring Program every time a new patient came to them seeking a prescription for a powerful drug, to see whether that patient got another prescription recently. Finally, researchers stated that doctors and pharmacists needed to be in regular contact with one another, to prevent patients from slipping through with multiple prescriptions.
While we at the Wolfe Law Firm tend to be mainly involved with personal injury involving accidents in the workplace, on the road, or on someone else’s property, we note the high level of prescription drug abuse with concern. It is always tragic when someone dies accidentally from a drug overdose, and those involved with prescribing or doling out these drugs open themselves up to the possibility of a wrongful death suit.
Now West Virginia is what is known as a “comparative negligence” or a “comparative fault” state. That means that the plaintiff in a lawsuit can be negligent to a certain degree and still collect a jury award for the other party’s negligence — as opposed to “contributory negligence,” where the plaintiff cannot collect at all if he or she is even slightly responsible for his or her injury. While West Virginia allows a plaintiff to collect, the state still imposes limits based on the plaintiff’s percentage of fault. If a plaintiff is 50% or more at fault, he or she cannot collect.
Recently, columnist Harold Mandel, a supporter of tort reform, examined the various reforms made around the country, including in West Virginia. He concludes that despite tort reforms that have already been made, medical liabilities that still exist threaten to bury the medical profession.
He claims that the tort reforms that have been enacted or upheld in various states have resulted in lower liability premiums and fewer doctors fleeing to states with lower caps. Mandel considers it a victory that this past July, the West Virginia Supreme Court upheld a reduction of the non-economic damages cap from $1 million to $250,000. At the same time, he frowns upon rulings by state supreme courts in Illinois and Georgia, which struck down caps of $350,000 and $500,000 as being unconstitutional.
Mandel believes that where people are allowed to sue their physicians, danger follows. Doctors who have to defend against malpractice suits pay an average of $47,158, an increase of 63% since 2001. In New York and Florida, it is not uncommon for doctors to pay premiums of around $200,000. And surgeons who get sued are — not surprisingly — more likely to burn out and experience depression.
What Mandel and other tort reform supporters will never say is that medical malpractice suits may be perfectly justified. In fact, a cap of $250,000 may be far too low to make up for the pain and suffering caused by a completely preventable error.
Over 200,000 deaths occur each year nationally due to physician error, and an untold number of injuries and overdoses. Most patients don’t have the option of reviewing a doctor’s success rate or the death/error rate from hospital to hospital. Instead, we must trust what the doctor says and submit to his or her care. When something goes wrong through no fault of our own, we want answers. Many hospitals are surprisingly — or maybe unsurprisingly — unwilling to give them. Research has shown that hospitals that disclose preventable errors to patients are more likely to face lawsuits — so hospitals don’t reveal them. One recent study found that hospital underreporting is greater than ever. Among Medicare beneficiaries, hospital reporting systems captured only 14% of the patient harm events.
A West Virginia woman is seeking $2.5 million after she claims that her prenatal doctor caused her to lose her unborn baby in 2009. Moorfield resident Amy Welton filed a malpractice suit against Dr. George M. Craft and his employer, Winchester Women’s Specialists PC. Winchester is an OB/GYN who treated Welton starting in December of 2008, when she found out she was eight weeks pregnant.
At that time, Welton had known risk factors that contributed to her pregnancy, including advanced age (she was 41 years old) and gestational diabetes. She was cared for by Dr. Craft through August 5, 2009, when she attended her final prenatal visit prior to a scheduled cesarean section. During the appointment, Welton’s blood pressure was recorded to be 138/94, which doctors classify as elevated. She also informed Dr. Craft that she was concerned because she noticed decreased movement of her baby. According to the lawsuit, Dr. Craft failed to take any action to determine the baby’s wellbeing, despite Welton’s known elevated blood pressure and risk factors.
On August 7th, Welton was admitted to Winchester Medical Center for her c-section procedure. The suit states: “no fetal heart tones could be documented and intrauterine fetal demise was subsequently verified by ultrasound.” Welton and her lawyers claim that the doctor was “negligent and deviated from the standard of care applicable to his care and treatment of the Plaintiff.”