The Doctor’s Advocate | Fourth Quarter 2020
Government Relations Report

2020 Judicial Review

Dennis W. Chiu, JD, Government Relations Specialist, The Doctors Company; and Elizabeth Y. Healy, Assistant Vice President, Government and Community Relations, The Doctors Company

Defending medical liability reforms is critical to the mission of The Doctors Company. As we work to enact and protect reforms in state legislatures, they are often also under assault in the courts.

One recent example outlined in this article is a case decided earlier this year in Oregon involving the limit on noneconomic damages in personal injury cases. Over the last decade, we and a coalition of healthcare advocates have successfully defeated multiple attempts by personal injury lawyers to repeal the state’s caps in the legislative arena and the courts. Unfortunately, despite our efforts, the trial lawyers were able to deal a significant blow to the personal injury cap on noneconomic damages.

We track dozens of cases each year that affect healthcare providers and actively support amicus briefs across the nation in an effort to defend liability protections. We have engaged in each of the significant judicial decisions highlighted here. 


Healthcare providers have often been sued for allegedly committing an intentional tort (an intentional unlawful act against another that causes injuries or damages) as part of a malpractice case. The California Supreme Court’s decision in B.B. v. County of Los Angeles potentially expanded liability for healthcare professionals because the court unanimously held that noneconomic damages awarded on intentional tort claims should not be reduced by the proportion of the defendant’s fault.

This case involved a man who died during an arrest by sheriff’s deputies that led to a jury finding one deputy liable for intentional battery and 20 percent at fault for the death. The trial court assigned the entire $8 million noneconomic damages award to the one deputy despite the state’s comparative fault laws that require damages be awarded consistent with the defendant’s percentage of fault. The supreme court held that the state’s comparative fault law never included intentional torts, so it should not be applied in this battery case award. This decision potentially creates an environment in which plaintiffs’ attorneys may file more intentional tort actions against healthcare providers.


A certificate of merit requirement is a component of medical liability reform compelling malpractice plaintiffs to obtain an expert opinion that states their claim is not frivolous. In Estate of Curtis v. S. Las Vegas Med. Inv’rs, LLC, however, the Nevada Supreme Court created an exception to this requirement.

This case involved a nurse who administered medication to the wrong patient and the patient died. The court held that the plaintiffs did not need to file a certificate of merit because they did not sue for medical malpractice; instead, they sued for claims involving negligent understaffing and negligent supervision of the nurse who made the error. The reasoning was that the court viewed simple medication mistakes as ordinary negligence, not malpractice. The court held that this kind of mistake was easy for a jury to understand without expert testimony. In doing so, the court created a new “common knowledge” exception to the certificate of merit requirement where none existed before.

The court, however, affirmed that plaintiffs must still file a certificate of merit when they sue an employer for actions arising from the treatment of health consequences from a medication mistake. The reasoning is that curative steps require medical judgment and expert testimony to decide whether an employer’s response creates liability.

This decision opens the door for Nevada plaintiffs’ attorneys to make additional attempts to avoid the certificate of merit requirement for other types of medical errors.


As discussed earlier, the Oregon Supreme Court struck a significant blow to the state’s limit on noneconomic damages in personal injury cases—a decision that affects Oregonians’ access to healthcare. Prior to the court’s decision, we and a coalition of healthcare advocates had successfully defended caps in Oregon for more than a decade.

In Busch v. McInnis Waste Systems, Inc., the court dealt a near fatal blow to the $500,000 cap on noneconomic damages in personal injury cases—which includes medical malpractice cases. Economic damages have always been unlimited in personal injury cases in Oregon. This case arose from injuries suffered by an individual struck by a garbage truck.

The court held that personal injury plaintiffs have a right to receive a remedy under state law because that right existed prior to the enactment of the cap on noneconomic damages. Under this scenario, the legislature was required to give plaintiffs a remedy to replace what it had taken away or diminished. They labeled this the “quid pro quo” requirement. The court held that the legislature had failed to meet this standard in this particular case, leaving the door open for litigating on a case-by-case basis whether or not the quid pro quo requirement is satisfied.

Adding to the complexity of the decision, the court preserved the noneconomic damages cap in wrongful death cases. The court reasoned that wrongful death legal actions are founded in a statute that had always included a remedy limitation. Since nothing was taken away, no quid pro quo was required.

Even further, the court reaffirmed the constitutionality of the total damage cap in the Tort Claims Act, a law that, for the first time, permitted individuals to sue the government. The court held that this cap satisfied the quid pro quo requirement because plaintiffs received a remedy where they had none before. The Oregon Tort Claims Act covers the healthcare provided through the Oregon Health Sciences University system.

In the end, however, the Busch case created confusion because the court allowed previous court decisions that arrived at different and opposite conclusions to remain valid law. As a dissenting justice wrote, the majority decision permitted this area of law to remain “consistently inconsistent.”


In Maas v. UPMC Presbyterian Shadyside, the Pennsylvania Supreme Court expanded mental health professionals’ duty to warn of a patient’s violent threat against an unspecified victim. In this case, the duty to warn was expanded to include a threat to a “neighbor.” The dissenting opinion criticized that in an urban setting, a “neighbor” could refer to a person in another unit in the same complex, a separate housing facility across the street, or a dwelling blocks away. This case involved a patient making a threat against a neighbor who was eventually discovered to live down the hall on the same floor. Prior cases required a specific threat of violence to a specific victim. Formerly, this approach allowed mental health professionals to effectively warn an identified individual, as opposed to a substantially less effective warning to a neighborhood of many individuals.


Retired U.S. Supreme Court Justices O’Connor, Kennedy, and Souter wrote, “Liberty finds no refuge in a jurisprudence of doubt.” The freedom of healthcare professionals to practice medicine within the bounds of civil law depends on courts providing clear guidance. We will continue to advocate for healthcare professionals in the legal system and for clear legal direction supporting the practice of good medicine.


We will also continue to advocate for liability protections for all healthcare providers dealing with the fallout of COVID-19. Read more about COVID-19 advocacy or visit our Legislative, Regulatory, and Judicial Advocacy page to learn more about all of our advocacy efforts and how you can get involved.

The Doctor’s Advocate is published by The Doctors Company to advise and inform its members about loss prevention and insurance issues.

The guidelines suggested in this newsletter are not rules, do not constitute legal advice, and do not ensure a successful outcome. They attempt to define principles of practice for providing appropriate care. The principles are not inclusive of all proper methods of care nor exclusive of other methods reasonably directed at obtaining the same results.

The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.

The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.