Arizona Personal Injury Blog - Medical Malpractice - Most Popular

Failure to Plead Sufficient Facts - The New Legal Malpractice?

Geoff Trachtenberg — Sun, 21 Oct 2007 15:48:53 GMT

There's a new case out this week from Division Two, Cullen v. Koty-Leavitt Insurance, which deals with the reasonable expectations doctrine in the UIM setting. The case is not particularly fascinating from a substantive perspective, but it raises questions about potential legal malpractice exposure.

In sum, Cullen filed a UIM claim based upon the fact that his family was given the right to privately use a business vehicle. The vehicle was owned by the business, Sierrita Mining and Ranch Company, and had UIM coverage with Auto Owners. The named insured was the business, and there were no additional insureds.

Cullen was injured while riding in another vehicle and filed a UIM claim with Auto Owners. The insurer denied his UIM claim, he then filed suit and the trial court dismissed the action.

First, the Court of Appeals expressly adopted the Supreme Court's holding in Bell Atlantic Corp. v. Twombly, the case that overruled the familiar Conley v. Gibson standard for dismissal.

This is a significant move and one wonders how the Arizona Court of Appeals, which is bound to follow the Arizona Supreme Court on such matters, saw fit to disregard the Arizona Supreme Court and unilaterally adopt the United States Supreme Court's Twombly holding. In any event, doubt no further, the "notice pleading" landscape has changed in Arizona as follows:

"While a complaint attacked by a Rule 12(b)(6) . . . motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Instead, the complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level."

The Court stated "when a complaint fails to recite at least the basic facts supporting a claim for relief, we cannot see how a defendant would have fair notice of the nature and basis of the claim." The Court then, turning its attention back to Cullen's case, stated it was limiting its review to the facts alleged in the complaint and the terms of the insurance contract.

Second, the Court went on to state that "[i]t is clear that the UIM provision of the policy Auto Owners issued to Sierrita does not provide Cullen with UIM coverage." This is pretty straight-forward since the only named insured was the business and Cullen was not injured while in the insured vehicle.

Third, the Court addressed the reasonable expectations argument. The Court explained that "[t]he [reasonable expectations] doctrine necessarily applies to the reasonable expectations of the contracting parties, not to the reasonable expectations of a hopeful insured, such as Cullen, who is a stranger to the insurance contract." The Court concluded that "the reasonable expectations doctrine d[oes] not apply to an injured party who 'had nothing to do with the purchase of the policy in question [and] never had an insurable interest or expectancy under the policy.'"

Then the Court gets cheeky. The Court stated that, despite Cullen's status as a "stranger" to the insurance contract, "Cullen's complaint is sufficient if the facts he alleged permit the inference Sierrita had a reasonable expectation Cullen would have portable UIM coverage under the policy it purchased from Auto Owners."

Ho-hum, what could they be thinking? How about this: "In his briefs to this court, Cullen describes several factual scenarios that arguably could prove one of the above situations applies to his claim. His complaint, however, contains none of them. Although Cullen's complaint conclusorily asserts he had a reasonable expectation of coverage, as we have explained, his expectations are not relevant here." So, the Court affirmed the trial court and denied the insurers' request for attorneys' fees.

Message: if you want to avoid being sued, forget notice pleading, you better allege facts, facts, facts to support your legal claims.

Originally posted at InjuryBoard by Geoff Trachtenberg

Assignments vs. Liens In the Personal Injury Context

Geoff Trachtenberg — Sun, 09 Dec 2007 08:41:24 GMT

A large number of people, attorneys included, don't know the difference between "assignments" and "liens."

Why does it matter, you ask? For a number of reasons that will be more obvious when the difference is understood.

An assignment is the easier of the two to understand since, as the name implies, it is an transfer of all or some rights or property to a third-party. Although an assignor cannot ever assign more rights or property than it holds, it can assign less than all of the rights or property subject to the assignment.

An assignment is bears the hallmarks of ownership. That is, an assignee steps into the assignor's shoes and has the ability to control the rights or property subject to the assignment. This means that the assignee can further assign the rights or property, can sell them, donate them, pledge them as collateral or simply enjoy the rights or property as though they were his or her own; subject, of course, to restrictions in the assignment agreement.

Here is where it will get tricky: an assignment can, in effect, extinguish an obligation to one party by transferring the obligation to another party.

Take, for example, a debt. Assume you owe a friend $10,000 for a car that you bought from him, and you agree to pay it of at a rate of $1,000 a year for 10 years. After two years, however, your friend decides that he really needs money and so he assigns the remaining $8,000 debt to me for $5,000 immediate cash. The debt to your friend is now, in effect, extinguished and transferred to me - that is, you owe me the $8,000.

You may not realize it, but a personal injury claim is a bundle of property rights, and to make matters a little more confusing, some states prohibit assignment of personal injury claims. Now, understand, this is a seemingly narrow restriction and assignment of other rights (such as debts) and property (such as cars) are fully assignable in every state.

What this anti-assignment law in the personal injury context means is that you cannot assign to someone a claim for bodily injury to a third-party. Remember, you can still assign the part of the case that corresponds to property damage, such as damage to your vehicle or personal belongings, and you can still assign any non-bodily injury claims, such as breach of contract or bad-faith.

Now keep that all in mind. What is a lien?

A lien is "[a] charge or encumbrance upon property to secure the payment or performance of a debt, duty or other obligation," and it "is distinct from the obligation which it secures." Matlow v. Matlow, 89 Ariz. 293, 297-98, 361 P.2d 648, 651 (1961) (citing 53 C.J.S. Liens Â§ 1, at 826). In Arizona, a lien can be created by statute, but an equitable lien may also arise from an express contract if the parties indicate an attempt to charge particular property as security for an obligation. Kalmanoff v. Weitz, 8 Ariz.App. 171, 172, 444 P.2d 728 (1968).

Unlike assignments, there is no prohibition on liens against personal injury cases, but this subject matter creates a great deal of confusion. Admittedly, what has contributed to the confusion is that the law has undergone centuries of perversion and that it is sometimes hard to tell the difference between an assignment versus a lien on a personal injury claim.

The courts examining this issue have often overlooked the distinction and, typically, have incorrectly deemed simple liens to be prohibited assignments without examining the real character of the transaction. To be sure, there are decisions that uphold standard (non-statutory) medical liens between a doctor and patient for services, and opinions which preclude insurance companies from recouping payment made to those same doctors as being impermissible assignments. These decisions are irreconcilable and fail to appreciate the difference between an assignment versus a lien on a personal injury claim.

Simply put, such arrangements - e.g., where someone is due money for services rendered - are permissible liens on a personal injury claims. That is, where an injured person owes money to a third-party and agrees to secure the debt with an encumbrance upon proceeds in a personal injury claim, the third-party does not own or control the personal injury claim (as they would had there been an assignment) and the personal injury claim remains "distinct from the obligation which it secures." The third-party has no say in how the claim is handled, does not need to assent to the settlement of the claim and will not be a party to signing a release of such a claim, which would be hallmarks of an assignment. To the contrary, if the injured party loses the personal injury suit, the "distinct . . . obligation" remains and must still be satisfied (absent an agreement making the debt or obligation contingent upon an event, such as prevailing in a personal injury action). In contrast, assignment of a losing claim would always result in an assignee receiving nothing (with the obligation having been extinguished upon the assignment).

Due to the anti-assignment case law, which is inconsistently applied, this causes confusion in personal injury cases. Although we are not going to ever resolve the issue here, it helps to remember the reason for anti-assignment law in the personal injury context is to prevent "trafficking in personal injury claims." That is, the courts long ago decided that it was not acceptable for people to market in buying and selling personal injury actions, ostensibly because of the unsavory possibilities of having injured people victimized by those wishing to purchase such rights. In reality, it has more to do with the image of justice and the likelihood that it would encourage fraudulent personal injury claims.

Ironically, the quiet exception to the rule prohibiting assignment of personal injury claims is that attorneys are permitted to take contingency fees on personal injury claims, which (if you believe what you read about other so-called impermissible assignment arrangements) is nothing more than an assignment of a personal injury claim. It used to be that such arrangements were considered impermissible, but after many years the courts relented an allowed contingency fee arrangements in all but criminal and divorce proceedings. In those cases, courts still felt that there was too must risk to allowing contingency fees -- that contingency fees would encourage unethical or unsavory conduct in criminal and divorce cases.

The reason contingency fees are allowed to attorneys, however, is to open the door to parties who would not otherwise be able to afford paying for attorneys on an hourly basis. And, most often, the same reason underlies lien arrangements for injured persons, whether it be health insurance liens, contractual doctors liens, liens for pharmaceutical expenses, liens for rental cars or liens for cash advanced to pay bills. Accordingly, although courts have long misunderstood and confused the difference between impermissible assignments and permissible liens, the simple fact is that such liens are a necessary element in modern personal injury practice to provide immediate care and compensation to impecunious injured parties who cannot afford to battle for years with an insurer for a tortfeasor. Such arrangements to not give rise to the concerns underlying the old anti-assignment laws and, in fact, do not reveal ownership characteristics of assignments.

Originally posted at InjuryBoard by Geoff Trachtenberg

Patient Claims Surgery was Botched

Christina Cole — Sat, 27 Jan 2007 23:16:32 GMT

A 66-year-old cancer survivor is now suing Catholic Healthcare West and St. Joseph's Hospital for operating on the wrong set of his vocal cords, alleging medical malpractice.

Larry Bimbo's left vocal cords were paralyzed from undergoing radiation therapy many years ago for lung cancer. However, he now claims in court papers the doctors treated his healthy, right vocal cords instead, cutting off his ability to speak, breath and swallow.
"The mistake could very well have killed him," said Tempe lawyer Christopher Piekarski, who is representing Bimbo. "His health greatly deteriorated while under their car. Standard care was indeed violated."
Bimbo's lawsuit was filed on January 4th at Superior Court in Mesa. Defendants also named are Scottsdale physician Jerry Josen and Arizona Otolaryngology Consults.

In June 2005, Bimbo lived in Phoenix when he consented to a larvngogplasty, a type of implant surgery to treat his left vocal cords.

Piekarski said the paralysis likely occurred years ago, after Bimbo underwent radiation therapy for lung cancer that is now in remission. The paralysis was painful and caused him shortness of breath and made his voice hoarse.
Another physician removed the implant in a follow up procedure and repaired the paralyzed left cord in a third surgery about six months ago, Piekarski said.
Josen never has been disciplined or reprimanded by the Arizona Medical Board since becoming licensed to practice in the state in May 2000, according to the agency's Web site.

Originally posted at InjuryBoard by Christina Cole

Walgreens Pharmacy Held Accountable for Prescription Error

Staff Writer — Tue, 16 Oct 2007 18:33:58 GMT

A Coconino County jury awarded one of the largest wrongful death verdicts to the family of a high school coach who died after taking a lethal combination of medications which should never have been dispensed together. The jury found that Walgreens pharmacy should have warned the patient and his physician about the lethal and toxic effects that the pain medications Tramadol and Methadone have when taken together. Presumably, the jury believed that the pharmacy had the last known opportunity to prevent a lethal combination of drugs from getting into the hands of a patient who did not have any idea about the toxic effects of these drugs when administered together. The jury likely concluded that Walgreens pharmacy should have discovered the extreme lethal dangers when technicians first input both prescriptions into the pharmacy computer system. Unfortunately, I do not believe that this prescription error was an isolated occurrence in pharmacies throughout the nation. Pharmacy prescription errors are a leading cause of death and injury in our country. Additionally, medical errors in general affect one in ten patients worldwide.

In this Arizona case, the jury awarded six million dollars to the plaintiffs who alleged pharmacy malpractice arguing that the:

Walgreens pharmacist who filled his prescriptions should have warned Warren and his doctor that the drugs shouldn't be used together. Technicians should have received a computer warning of the interactions, they argued.
Walgreen countered that Warren was negligent and caused his own death or that his doctor was negligent in prescribing the medication.

When you receive a prescription, do you believe that the pharmacist will dispense the right medication and not some similarly sounding drug? Do you believe the pharmacist will explain the proper dosage, administration and usage to you? Do you believe the pharmacist will warn you about any drug interactions you may face? Do you believe the pharmacist will give you an opportunity to ask questions? I believe safe administration of medication should be a priority in all pharmacies. I also believe that the wrong medication should never leave a pharmacy if the pharmacist and staff prioritize patient safety when dispensing controlled substances. I guess the Coconino County jury agreed.

For more information on this subject, please refer to the section on Drugs, Medical Devices and Implants.

Originally posted at InjuryBoard by Staff Writer

How Would Tort Reform Affect the Quality of Emergency Healthcare?

Staff Writer — Thu, 14 Jun 2007 07:00:00 GMT

In 1975, the California State Legislature passed the California Medical Injury Compensation Reform Act (MICRA) which placed a cap on damages for medical malpractice claims. According to this Act, an injured plaintiff cannot recover non-economic losses in excess of $250,000. This tort reform statute has been in effect in California for thirty-two years. Because this California law has been in effect for so long, perhaps we can look to this state to determine whether tort reform has been effective in improving the quality and price of medical care. In general, I believe private market conditions rather than government interference and regulation leads to higher quality and efficiency. This means that I do not believe that artificial caps on damages are effective in improving the quality and cost of medical care.

Today, I came across a shocking news story about the quality of emergency room care in at least one hospital in California. A patient who was bleeding from her mouth and crying out in pain while she was forced to wait more than forty-five minutes in the lobby of the emergency room at Martin Luther King Jr.-Harbor Hospital died because she did not receive timely emergency care. According to news accounts, family members tried to call 911 to receive timely medical care and transport the patient to another facility. Unfortunately, dispatchers refused to call paramedics after learning about her location. According to news accounts of the breakdown in patient care:

In the recordings of two 911 calls that day, first obtained by the Los Angeles Times under a California Public Records Act request, callers pleaded for help for Rodriguez but were referred to hospital staff instead.
"I'm in the emergency room. My wife is dying and the nurses don't want to help her out," Rodriguez's boyfriend, Jose Prado, is heard saying in Spanish through an interpreter on the tapes.
"What's wrong with her?" a female dispatcher asked.
"She's vomiting blood," Prado said.
"OK, and why aren't they helping her?" the dispatcher asked
'They're just watching her'
"They're watching her there and they're not doing anything. They're just watching her," Prado said.
The dispatcher told Prado to contact a doctor and then said paramedics wouldn't pick her up because she was already in a hospital. She later told him to contact county police officers at a security desk.

The patient died after suffering from a perforated bowel which according to the coroner, could have been surgically repaired if it had been caught in time. Clearly, the emergency medical care provided to this patient fell well below the standard of care required for emergency medical providers. In fact, according to press reports, the hospital had a history of patient safety problems. The federal government previously even warned this hospital about safety problems placing emergency room patients at immediate risk of harm. The hospital risked losing federal funding had it not improved patient safety.

What do caps on damages in medical malpractice litigation have to do with this California hospital? Perhaps nothing. However, I believe that possible litigation damage awards usually play a role in how people manage risks. Because risk management departments evaluate safety based upon exposure to damage awards, damage caps can play a role in the priorities placed on patient safety programs. Perhaps if this hospital placed more emphasis on patient safety, it would have had a more effective patient triage program in place rather than forcing a patient with a perforated bowel to wait in an emergency room lobby until she died.

I must admit that other than what has been reported in news stories, I know nothing about this hospital. However, I firmly believe that risk management departments place an increased emphasis on patient safety when facing an unlimited exposure to litigation risk . As a result, litigation can be an effective tool to promote safety. This hospital never faced a civil judgment beyond exposure to civil damages caps. Because such risks never existed in California, perhaps patients suffer from poor quality of care. Do you believe the hospital has adequate incentive to provide safe patient care? Do you believe that damage caps play a role in the safety decisions corporations and medical providers make? Would damage caps in California work in Arizona? Let me know your thoughts.

Originally posted at InjuryBoard by Staff Writer

Tax Liability Arising Due to Confidentiality Clauses in Settlement Agreements

Geoff Trachtenberg — Thu, 10 May 2007 09:40:33 GMT

Did you know that a confidentiality clause can have tax consequences? This was the subject of a United States Tax Court opinion in Amos v. IRS (2003), the case where Dennis Rodman kicked a courtside TV cameraman in the groin.

The Court held that, if a portion of a settlement is attributable to a confidentiality agreement, that portion is taxable.

It is not clear what the long-term effects are for this holding, but there are ways to deal with it. For example, you will want to make sure any clause in a settlement agreement provides that the confidentiality agreement is mutual, and that no additional consideration is being paid for it. In the alternative, you should negotiate an additional and specific amount being paid in consideration for a confidentiality clause, recognizing the tax implications.

Obviously, consult a tax professional for up to date tax advice on this type of issue.

Originally posted at InjuryBoard by Geoff Trachtenberg

Bill to Raise Burden of Proof on ER Malpractice Lawsuits Fails in House

Christina Cole — Tue, 08 May 2007 08:02:39 GMT

The Arizona House rejected Bill SB 1032, a bill that would have made medical malpractice lawsuits against emergency department doctors and staff more difficult to win.

The State Senate approved the legislation on a 6-12 vote, in January, and would have required plaintiffs in such type malpractice lawsuits to have "clear and convincing evidence" that the care they received was not up to professional standards, rather than a "preponderance of evidence" which is an easier legal threshold.

Proponents believe SB 1032 would have helped to eliminate frivolous lawsuits that lead to increased malpractice insurance premium rates, also scaring away Arizona doctors.

While the opponents believe the legislation would violate the constitutional rights of patients to file a malpractice lawsuit.

Originally posted at InjuryBoard by Christina Cole

Bell Atlantic v. Twombly: The Day "Notice Pleading" Died (Sort Of)

Geoff Trachtenberg — Wed, 29 Aug 2007 14:20:02 GMT

On May 21, 2007, the U.S. Supreme Court handed down Bell Atlantic v. Twombly, 550 U.S. ___ (2007), announcing the "retirement" of the long-standing standard for dismissal of complaints articulated in Conley v. Gibson, 355 U.S. 41 (1957) - i.e., the standard that complaints should not be dismissed "unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Bell Atlantic represents a sea change in "notice pleading" standards. As one law professor recently observed:

The question, though, is what that change will look like. What does Bell Atlantic really mean? Clearly, Conley's "no set of facts" language is dead, at least as to the meaning that was customarily ascribed to it. And, at least for the kinds of costly class action antitrust cases like the one initiated by Twombly, Bell Atlantic erects an additional "plausibility" requirement of fact pleading in its place, what I have called "notice-plus."

Originally posted at InjuryBoard by Geoff Trachtenberg

Is a Medical Malpractice Claim "Mature" If There Is No Present Injury?

Geoff Trachtenberg — Thu, 19 Apr 2007 08:57:14 GMT

As a rule, every medical malpractice claim must have four elements -- duty, breach, causation and damages -- and, at least as a general rule, you need all of them to have a cognizable claim. Sometimes, however, there can be an issue as to when a claim is "mature," i.e., complete or ripe.

Take, for example, a person who has an increased risk of disease because he has been exposed to a defective product, but no illness has manifested. In this situation, many courts have held that the person has no cause of action, but the issue is far from settled.

It is my view that a recovery should be allowed for the increased risk of future diseaseor for emotional distress as a result of the increased risk. Under these circumstances, it is also logical that a tortfeasor should be responsible for medical expenses necessary to monitor the person's health.

Take,for example, Sinclair v. Merck, 913 A.2d 832 (2007), where the plaintiffs contended they had an increased risk of myocardial infarction due to use of Vioxx, but admitted no present infections. While the trial court dismissed the lawsuit, the appellate court reversed.

The court acknowledged that evidence of current injury is required in some circumstances under New Jersey law, but suggested that this requirement did not necessarily apply where the plaintiff claimed direct exposure to the product and it was possible to assess the existence, dose and duration of the exposure.

The court refused to adopt a bright-line rule requiring the existence of a manifested disease for the maintenance of such claims. Rather, the court said it was necessary to determine what relief "is reasonable and necessary in the circumstances, bearing in mind that the remedy sought by plaintiffs cannot be 'easily invoked.'" That determination could not be made, the court said, on "bare pleadings." The court remanded the matter for discovery and an evidentiary hearing.

Notwithstanding the foregoing, courts have taken a variety of approaches to the requirement that a plaintiff must exhibit an actual injury to recover on a tort claim. In some cases the requirement has been strictly applied, and in other cases courts have shown a willingness to overlook the requirement, depending on the nature of the particular case.

It is unclear what Arizona would do in this circumstance. Consider Kenyon v. Hammer, 142 Ariz. 69, 688 P.2d 961 (1984). In Kenyon, the plaintiff brought a claim for bodily injury and wrongful death claim, based upon a doctor's nurse incorrectly recording a pregnant mother's Rh factor during pregnancy.

During the course of the pregnancy, a routine blood test revealed that Ms. Kenyon had Rh negative blood, but one of the doctor's nurses erroneously marked her chart to indicate that her blood type was Rh positive. A normal, healthy child with Rh positive blood was delivered on July 10, 1972. If the doctor had be aware that Ms. Kenyon had Rh negative blood, however, he would have administered RhoGAM, a drug which suppresses the immune response which Rh negative mothers may develop to the Rh positive blood cells of their child.

To be effective, the drug must be administered within seventy-two hours after delivery of an infant with Rh positive blood. Failure to administer the drug increases the risk of the immune response and the consequent risk to subsequent pregnancy by approximately ten times. The drug, however, was not administered and Ms. Kenyon developed the immune response and her ability to bear additional children was, therefore, substantially impaired.

Ms. Kenyon was unaware of this development.

Over five years after the birth of her first child, Ms. Kenyon again became pregnant. She was delivered of a second child on April 26, 1978. The second baby was stillborn as a result of the destruction of its blood cells by the mother's Rh antibodies.

Ms. Kenyon filed suit for bodily injury and wrongful death of the stillborn child. The doctor argued the claim was barred by the (then-applicable) three-year statute of limitations since the lawsuit was not filed within three years of the medical mistake -- i.e., the failure to administer RhoGAM at the time Ms. Kenyon's first child was born. The doctor also argued that there could not be a claim for injuries to a child that was not even conceived at the time of the medical mistake.

The Arizona Supreme Court disagreed. The Court held that Ms. Kenyon's claims were not barred and that the statute date began to run on the date on which second child suffered some injury and because the action was filed within two years from the date the second child was conceived. Thus, since the Arizona Supreme Court was willing to recognize a cause of action for damages from a medical mistake that led to a decreased ability to have children not yet even conceived, the Court might also be willing to recognize a claim based upon the increased risk of future disease or injury or for emotional distress as a result of the increased risk.

Then again, there's Transamerica Ins. Co. v. Doe, 173 Ariz. 112, 115, 840 P.2d 288, 291 (App. 1992), a Court of Appeals decision holding that being exposed to HIV-infected blood without showing any physical signs of being infected with the virus did not constitute a compensable bodily injury within the meaning of Transamerica uninsured motorist policy. So, who knows!

Originally posted at InjuryBoard by Geoff Trachtenberg

Couple Sues Fertility Clinic for Wrong Sperm

Geoff Trachtenberg — Fri, 23 Mar 2007 08:55:35 GMT

A whole new type of medical malpractice is brewing in the fertility field.

For example, today a New York court ruled that a couple can proceed with a lawsuit against a fertility clinic for medical malpractice after the wife gave birth to a daughter whose skin they thought was too dark to be their child.

This follows a story from two weeks ago, where a couple sued a negligent clinic for lost embryos.

Originally posted at InjuryBoard by Geoff Trachtenberg