The Doctor’s Advocate | Fourth Quarter 2021
Government Relations Report

2021 Judicial Review

Dennis W. Chiu, JD, Government Relations Specialist and Amicus Coordinator, Government and Community Relations, The Doctors Company

In 2021, state supreme courts handed down a mix of positive and negative decisions in medical liability cases. The Doctors Company is tracking more than 90 appellate cases this year, and we contribute expertise and funding to amicus curiae, or friend-of-the-court, briefs to help safeguard hard-fought medical liability protections. This review highlights a number of cases decided in 2021.

High courts in the West and Midwest filed significant opinions supporting the constitutionality of noneconomic damages caps.

In Siebert v. Okun, the New Mexico Supreme Court held that the cap on nonmedical damages and nonpunitive damages in medical malpractice cases did not violate the state’s jury trial right. In a seminal opinion detailing the federal and state constitutional history of the right to a jury trial, the court debunked the arguments often used by personal injury attorneys when attacking caps on noneconomic damages.

In Velazquez v. University Physician Associates, the Missouri Supreme Court affirmed the legislature’s right to replace medical malpractice actions that are based on common law or case law with one created by the legislature. This is important because the same court had previously held that the cap on medical malpractice noneconomic damages was unconstitutional because the right to a jury trial was enshrined in common law at the time the state’s constitution was adopted. By affirming the legislature’s right to replace the common law action with a statute and enact a cap, an important method for preserving caps on noneconomic damages passed judicial scrutiny.

The application of damages caps was expanded in another western state. In Scott v. Wingate Wilderness Therapy, the Utah Supreme Court reasoned that when evidence indicates a nontraditional treatment—in this case, rock climbing—was prescribed by a healthcare professional, injuries from that treatment are covered under the state’s Health Care Malpractice Act. This is significant: If rock climbing is covered by the act, other types of experimental or experiential treatments are more likely to be covered.

Several high courts handed down decisions limiting damages in malpractice cases:

• In Cutchin v. Beard, the Indiana Supreme Court applied the state’s Medical Malpractice Act to a nonpatient. This case involved a plaintiff who was not a patient of the healthcare defendant and was injured when the defendant’s patient, under the influence of prescribed opioids, allegedly caused a motor vehicle accident. The court held that the act expressly included claims from nonpatients resulting from alleged medical negligence.
• In Yebuah v. Center for Urological Treatment, the Tennessee Supreme Court interpreted that the state’s cap on noneconomic damages applied to the total loss awarded to both spouses in medical malpractice cases, not to each separately.
• In two different Texas cases, In Re K&L Auto Crushers, LLC, and In Re Allstate Indemnity Company, the state supreme court held that defendants may challenge the reasonableness of inflated medical bills. In K&L Auto Crushers, the court held that in a personal injury suit, the plaintiff’s medical providers’ negotiated rates and costs are discoverable and relevant to the reasonableness of the plaintiff’s medical damages. In the Allstate case, the court permitted a nonphysician expert witness with experience in medical documentation and billing practices to testify on negotiated rates.

These decisions help prevent runaway jury awards and further legitimate public policy efforts to control the cost of healthcare and protect patients’ access to care.

In a setback, one high court in the Midwest opened the door to punitive damages in medical malpractice cases. Usually, punitive damages are awarded to punish grossly negligent or malicious conduct. This was not the case in Rhoden v. Missouri Delta Medical Center, a case that involved a series of unfortunate errors—including the failure to document nonsurgical options during a consultation, the failure to recognize signs of a potential bladder perforation, and the accidental misplacement of a catheter. In general, mistakes are compensated by making injured parties whole. Adding punitive damages is uncommon in the absence of extraordinary conduct or bad intent. In this case, however, the Missouri Supreme Court felt that the facts could have risen to “complete indifference” or “conscious disregard for the rights or safety of others.” The court likely opened the door to widespread pleading of punitive damages in medical malpractice cases and unwisely confused compensatory and punitive damages.

One high court in the South increased the percentage of damages owed by a defendant who was found to be less proportionally at fault. In Alston & Bird, LLP v. Hatcher Management Holdings, LLC, the Georgia Supreme Court held that the plain reading of the apportionment statute gave them little choice. In cases with only one defendant, the law does not permit courts to assign a percentage of damages to an entity or person who is not a party to the lawsuit. The court appeared to suggest that the legislature could fix this issue with legislation so that one defendant does not pay more than their adjudicated share of fault.

We saw several significant decisions in the area of statute of limitations. Even though the Idaho Supreme Court in Gomersall v. St. Luke’s Regional Medical Center found the state’s time limit on filing malpractice actions constitutional, two other state high courts made it more difficult for defendants to end malpractice suits that are filed after the time limit had expired:

• In Bowman v. St. John Hospital and Medical Center, the Michigan Supreme Court created a new rule: Until facts have been established that a plaintiff subjectively developed a suspicion that malpractice had occurred, a court cannot start the clock on the six-month limit on filing a suit or dismissing the case.
• In State ex rel. Morgantown Operating Company, LLC v. Gaujot, the West Virginia Supreme Court held that when a medical malpractice case included a patient’s death, the longer two-year statute of limitation for wrongful death cases controlled, not the one-year time limit in medical malpractice cases that do not involve a patient’s death.

Except for the most heinous crimes, statutes of limitation have a long history of balancing the rights of plaintiffs and defendants. The law understands that, over time, evidence is lost, memories fade, witnesses disappear, and it becomes unfair or impossible for defendants to defend themselves from unjust claims. Arguably, decisions that extend the statute of limitations upset the balance.

Find information about legislative and judicial advocacy in your state and learn how to help protect medical liability reforms for all healthcare professionals and providers.

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