Archive for the ‘Medical Malpractice’ Category

Decision: Williams v. Lawton

June 5, 2009

May 29th. The Kansas Supreme Court has issued its opinion in Williams v. Lawton (No. 97,132), an interlocutory appeal from the order of a new trial in a medical malpractice case. In a unanimous decision, written by Justice Marla Luckert, the Court held that under the facts of this case the interlocutory appeal was acceptable, that the District Court did not err in awarding a new trial after information surfaced of jury misconduct and that the prosecution was justified in using its expert witness despite his being retired at the time of the underlying incident taking place.

The case stems from an adult circumcision which Dr Steve Lawton performed on Richard Williams. After complications, Williams sued alleging malpractice. Williams introduced expert witness testimony in support of his case from Dr Philip Diggdon. Lawton objected to Diggdon’s testimony on the grounds that Diggdon was retired at the time of the incident and that Kansas law governing expert witnesses in medical malpractice cases states that “no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident…is devoted to actual clinical practice”. The District Court rejected this argument and allowed Diggdon to testify. The jury returned a verdict, finding the majority of the culpability lay with Lawton and awarding a total of $1.9m in damages.

After the case, Lawton’s counsel interviewed some jurors and discovered a claim that the jury had disregarded their instructions and agreed to award an average of the dollar amounts that each individual thought was right. If true, this would be an impermissible quotient verdict. Lawton brought this to the attention of the Court and the District Judge took testimony from other jurors, and made a determination that a quotient verdict had been delivered, and therefore ordered a new trial. He also certified his rulings for an interlocutory appeal to the Court of Appeals. The Court of Appeals took the questions and reversed the District Court finding fault in the way the Judge had interacted with the Jurors. Lawton then appealed to the Supreme Court.

Before the Supreme Court there were three main issues (though there is a lot of detail in the opinion regarding the procedural posture of the case, which is relevant to anyone examining Kansas Law on interlocutory appeals).

1. Was the interlocutory appeal appropriate and should the Court of Appeals have taken it?

The Court held that it was not an abuse of discretion for the interlocutory appeal to be certified or for the Court of Appeals to rule on it. While discouraged the appeal in this instance promoted judicial economy since it might prevent the need for a new trial. The Court also held that it was appropriate to consider all the questions which had come up in the appeal since they were heavily interconnected with the underlying issue of whether a new trial was needed.

2. Did the District Judge err in his questioning of the jurors?

After dispensing with a procedural argument that the District Court could not by itself recall the jurors to investigate the misconduct claim (since the Defence Counsel moved an oral motion to do this anyway after the judge suggested it), the Court held that the Judge’s questions were allowed. In this it reversed the Court of Appeals which had held that the Judge’s questions of the jurors had extended into the impermissible area of the jury’s thought processes. The key finding in the case was that the jurors had agreed to be bound by an average of their suggested damages. This was not permitted and was not a matter of their mental processes but simply an agreement within the jury room and thus constituted sufficient misconduct for the Judge to order a new trial.

3. Was Dr Diggdon’s testimony permitted?

The Court held that Dr Diggdon’s testimony was allowed. The key to whether an expert witness qualified under the statute was whether in the two-year period prior to the incident 50% of their time had been devoted to clinical practice. Lawton had argued that the ratio had to hold all the way up to the time of the incident, rather than be an average over the preceding two years. The Court held that the Statute was clear that Lawton’s contention was wrong here.

As a result, the case will proceed to a new trial under basically the same conditions as the first.

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Decision: Kelly v. VinZant

December 19, 2008

December 12th. The Kansas Supreme Court has issued its decision in Kelly v. VinZant (No. 94, 648), a torts case. In a unanimous opinion, authored by Justice Luckert, the Court partly affirmed and partly reversed the Court of Appeals and District Court’s decisions terminating a case brought by William Kelly against Whitney VinZant, a surgeon. While blocking Kelly’s suit for fraud based by malpractice (since a prior jury had rejected his malpractice claim) and also blocking his attempt to sue for battery (on statute of limitations grounds), the Court left the door open to Kelly to pursue a claim against VinZant under the Kansas Consumer Protection Act (KCPA). In doing so it held that a 2007 amendment to the KCPA, passed by the legislature in response to a previous decision of the Court was not retroactive. All suits which predated the enactment of that amendment are therefore preserved.

VinZant had performed a series of three operations on Kelly. The first two were not wholly successful and culminated in Kelly losing one of his testicles. Kelly brought three suits (one for each of the operations) which alleged medical malpractice, fraud (VinZant had claimed he did ‘not do bad surgeries’), a violation of the KCPA (related to the fraud claim) and battery by way of fraud (that an operation without consent is battery and the consent was obtained by fraud). The District Court combined these suits and severed the claims. After a jury acquitted VinZant of malpractice the Judge dismissed the other suits since there was no malpractice, there was no fraud. The KCPA claim had been dismissed on the grounds that it did not apply to a medical setting (as opposed to advertisments for professional services).

On Appeal the Court of Appeals affirmed the District Court. It held that the battery claim was initiated outside of the statute of limitations, and that the fraud could not stem from the malpractice since there was none. It noted that after the District Court had ruled, the Supreme Court had decided Williamson v. Amrani which held that a medical practitioner could be sued under the KCPA. However, the Court of Appeals held that in this case the District Court was right for the wrong reason in that the KCPA claim was also barred by the jury’s finding of no malpractice.

The Supreme Court agrees with the Court of Appeals on the fraud. Kelly had sought to argue that the fraud was disconnected to the malpractice since it related to his decision making to allow the operations. Nevertheless the Supreme Court held that since the alleged fraud was connected to the surgeries that it is not a separate complaint but falls under medical malpractice. Therefore, the jury’s verdict foreclosed the fraud claim.

The Supreme Court also agrees with the lower courts on the battery claim. Kelly had argued that since he did not consider the consent to the operations to be fraudulently obtained until much later (at the conclusion of the three treatments) the statute of limitations on battery should run from there, just as the one for fraud runs from the moment of discovery of the fraud. The Court disagreed, holding that the statute of limitations for battery is one year from the physical incident and contains no exceptions.

Where the Supreme Court disagreed with the lower courts was over the KCPA. In doing so it brings to a close an issue which has involved all three branches of the State Government. In Williamson v. Amrani the Court had held that the KCPA applies medical situations where a physician’s statements to the patient constitute deceptive practices and not purely to other contexts such as advertising. In this case the ‘I not do bad surgeries’ statement might qualify. In 2007 the Legislature attempted to modify the KCPA to overturn Williamson (SB 55). The Governor vetoed SB 55, whereupon the Legislature again modified the KCPA via HB 2451, which became law. The Court examined the text of the amendment and held that it was not retroactive since there was no indication that it was intended that way, therefore while future suits are blocked, those already in progress may proceed. A footnote here is that the original text of the vetoed bill says ‘nothing in this act shall be construed to…’ while the amendment which made it into law says ‘the KCPA does not allow…’. Whether the Court would have considered SB 55 retroactive is a question which there will never be an answer to.

As a result of its ruling, Kelly’s various claims are terminated except for the KCPA case, which is remanded to the District Court for further proceedings.