The Doctor’s Advocate | Fourth Quarter 2023
Government Relations Report

2023 Judicial Review: Significant Court Decisions on Medical Liability Issues

Dennis Chiu, JD, Senior Government Relations Specialist, The Doctors Company

Between fall 2022 and summer 2023, several state supreme courts handed down controversial decisions that expand liability for healthcare practitioners and entities. As plaintiffs’ trial lawyers continue to mount legal challenges to long-established liability protections for healthcare providers in the hope that state supreme courts will weaken or eliminate them, we continue to fight to ensure a level playing field through our robust judicial advocacy program.


The Michigan Supreme Court expanded liability in two decisions:

In Markel v. William Beaumont Hospital, the high court held by a vote of 4–3 that a healthcare facility may be sued for the acts of a nonemployee contractor. Typically, employers are liable only for the acts of their employees or agents unless a third party may reasonably believe that a nonemployee has authority to act. In this case, the contractor wore credentials identifying that she was not employed by the hospital—a fact ignored by the majority. The dissent warned that the “majority has essentially made hospital liability . . . the default rule unless a patient’s belief in an agency relationship is . . . dispelled in some manner by the hospital. . . . Under this regime, hospitals are now encouraged to somehow communicate, before treatment, the employment status of hospital staff to patients seeking emergency care or their representatives. It is not clear whether delaying treatment to provide this information would even be medically ethical let alone efficacious. . . .”

In an 8–0 opinion in Ottgen v. Katranji, the Michigan Supreme Court weakened two significant tort reforms. First, the court held that the statute of limitations could be paused for a medical malpractice complaint even though the complaint was missing a required expert statement. This decision weakened the affidavit of merit (AOM) requirement that limits meritless claims by requiring that plaintiffs submit a medical expert’s sworn statement that the healthcare defendant acted below the standard of care when they file a complaint. The second tort reform weakened was the statute of limitations (SOL), which places limits on the time that a medical malpractice suit may be filed. SOLs help healthcare professionals by ensuring that claims are initiated while the facts of the case are still fresh. As this court previously explained in Scarsella v. Pollak, “for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient. . . .” In Ottgen, the plaintiff’s attorney admitted to failing to file the AOM due to “clerical error.” The court chose to overturn Scarsella, holding that the AOM and SOL need not be connected.

In Hamon v. Connell, a unanimous Georgia Supreme Court exceeded the text of the statute governing when the adult children of a deceased person may file suit for wrongful death in medical malpractice cases. The plain language of the statute provides children with the right to file a wrongful death claim only if the deceased had no surviving spouse. In this case, the surviving spouse chose not to file a claim. Although the court of appeals followed the statute, the state supreme court reasoned that since it had previously allowed minor children to file when a surviving spouse refused, the court should extend the same allowance to adult children. The court reasoned that when a party had no adequate relief under the law, courts may use their equitable powers to provide relief outside of the statute.

In Elliot v. Durrani, the Ohio Supreme Court held by 4–3 in a medical malpractice case that the statute of repose (the outside time limit to file a lawsuit) is paused if a defendant leaves the jurisdiction of the state. This case involved a physician who fled the country to avoid criminal and civil prosecution for allegedly performing unnecessary surgeries. The majority, however, failed to limit its decision to those who intentionally flee a lawsuit. The dissent warned, “Under the majority’s holding today, when a medical provider leaves Ohio to practice in another state or to retire, he or she potentially has unending exposure to suit for injuries that occurred years or even decades earlier.”

Reproductive Health

A review of controversial state high court decisions resulting in liability expansion for healthcare providers would be incomplete without mentioning that several state supreme courts have upheld laws restricting access to abortion, including criminal and civil penalties for providers, and other state high courts have not. Here are examples of both:

  • Liability was expanded in Planned Parenthood South Atlantic (II) v. State of South Carolina. In a 4–1 opinion, the South Carolina Supreme Court upheld the state’s 2023 Fetal Heartbeat and Protection from Abortion Act that prohibits abortions once a fetal heartbeat is detected, except in certain limited circumstances. The majority refused to decide at which point during a fetus’s development a fetal heartbeat develops, leaving providers with unclear guidance about when care that incidentally or intentionally causes an abortion becomes illegal.
  • The North Dakota Supreme Court’s unanimous decision in Wrigley v. Romanick held that the state’s constitution implicitly includes the right to obtain an abortion to preserve the mother’s life and health and upheld a trial court’s preliminary injunction against the state’s antiabortion law.

For more information and to view a full list of the dozens of pregnancy termination laws and cases we are tracking by state, visit our Reproductive Healthcare: Post-Roe Resource Center.

Positive Developments

Not all significant decisions favored plaintiffs. Several state supreme courts have sided with healthcare professionals. Here are three notable developments:

  • In Doan v. Banner Health Inc., the Alaska Supreme Court unanimously decided to refuse to recognize a “loss of chance” claim in medical malpractice cases. A loss of chance claim against a medical professional involves an allegation that an act of medical malpractice decreases or eliminates the chance of surviving or recovering from a preexisting condition for which the medical professional was consulted.
  • In Carson v. Steinke, a unanimous Nebraska Supreme Court rejected a national standard of care to qualify a plaintiff’s expert in medical malpractice cases. It held that the expert must demonstrate familiarity with the defendant’s local medical community or a similar community based on medically relevant factors—including available facilities, personnel, equipment, and practices.
  • In Borngne ex rel. Hyter v. Chattanooga-Hamilton County Hospital Authority, a 3–2 majority of the Tennessee Supreme Court held that a defendant healthcare provider cannot be compelled by a plaintiff to provide standard-of-care expert testimony against a codefendant provider.

Learn more about how The Doctors Company defends medical liability protections at every level of government by visiting our Legislative, Regulatory, and Judicial Advocacy page.

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.

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