Trial Magazine

A scalpel left inside a surgical patient. A missed cancer diagnosis. The wrong leg amputated. A botched cesarean section. In all these cases, what happened to “do no harm”? Dating back to ancient times, physicians have sworn to uphold their duties to patients, and when they fail to adhere to the standard of care, they must be held responsible.

In 1794, a man whose wife died from an operation sued the doctor who performed the surgery, alleging the doctor promised to perform the surgery in a safe manner. This was the first known medical malpractice case brought in the United States—and rather than sounding in negligence, it was brought as a breach of contract. The husband prevailed.

More cases began to appear in the 1800s, but they remained rare until the 1960s. Technological advances in medicine clashed with the ability to adhere to the ever-evolving standards of care. Over the next 20 years, under the guise of a “crisis” in liability insurance markets over the rising costs of covering malpractice awards and payouts, states stepped in, passing a series of tort “reform” measures that would make it more difficult to hold the egregious parties liable for countless errors, injuries, and deaths.

But as with any industry that becomes bogged down by systemic failures that put people at risk for harm, trial lawyers stepped in. They have helped hold doctors, hospitals, and other medical providers accountable and improve patient safety—all while overcoming obstacles, from damages caps to immunity laws.

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Medical errors kill at least 250,000 Americans every year—with some estimates exceeding 400,000.

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Medical Errors

Recent studies have confirmed a frightening truth: Medical errors kill at least 250,000 Americans every year—with some estimates exceeding 400,000. The causes of these errors run the gamut—from errors in judgment, lapses in the standard of care, inadequate training of staff and medical professionals, preventable adverse events, and so on. They can occur during diagnostic testing, surgery, medication administration, and any other touch point involving a patient.

While the best way to avoid medical errors is to prevent them before they occur, trial lawyers have been forced to use the courts to help patients recover when they are injured, create clearly defined reasonable standards of care, provide public notice and accountability, and be the catalysts for system-wide changes.

Delayed diagnosis or misdiagnosis. A third of malpractice cases involving a major injury or death arise from diagnostic errors, according to a 2019 study from Johns Hopkins University School of Medicine. Seventy-four percent of cases in which diagnostic errors caused serious harm involved cancer, vascular events, or infection—and the top misdiagnosed conditions for these categories were lung cancer, stroke, and sepsis, respectively.

One such victim of misdiagnosis is Allan Navarro, a former athlete who became confined to a wheelchair and at risk of suffocating just from eating after doctors missed the signs that he was experiencing a stroke. Navarro had gone to the ER and complained of nausea, headache, and blurred vision, but doctors prescribed him painkillers and sent him home. He returned to the hospital the next day with brain swelling, and after undergoing surgery to relieve the swelling, he spent three months in a coma. In 2006, a Florida jury awarded Navarro $217 million, including more than $100 million in punitive damages that Navarro and his family donated to charities to help those with brain and spinal cord injuries.

Birth injury. Birth injuries occur in 6 to 8 out of every 1,000 live births. Birth injury risk factors include fetal size and presentation and the use of a vacuum or forceps during delivery. Injuries most commonly involve the infant’s head, neck, or shoulders and range from hemorrhages to fractures to nerve and spinal cord injuries. While some injuries resolve quickly, others have long-lasting and devastating impacts on the child’s health. Some of the most devastating birth injuries involve hypoxic ischemic encephalopathy—which occurs when the brain does not receive enough oxygen. A brain injury can cause lifelong disabilities from neurodevelopmental disorders such as cerebral palsy.

But nearly half of birth injuries are potentially avoidable when health care practitioners recognize and appropriately anticipate obstetric risk factors. As with other areas of medical negligence, trial lawyers have brought these cases to courts around the country to obtain justice for their clients and hopefully convince hospitals and other medical providers to improve health care by always putting the patients first.

In one recent case, Tequila Sallis informed a nurse that she had stopped feeling fetal movement and was concerned for her baby’s health. Although an external monitor showed a concerning fetal heart rate, several hours passed before a physician came. The child was delivered via emergency cesarean section and suffered a severe brain injury—he requires round-the-clock care and has major cognitive and motor deficits. Experts testified at the trial that his injuries could have been prevented if doctors had acted sooner. An Illinois jury found the hospital, nurse, ultrasound technician, and physician liable—awarding nearly $101 million to the Sallises.

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Florida and Kansas are two examples of states where trial lawyers’ battles ultimately resulted in damages caps being struck down.

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Damages Caps

In conjunction with an aggressive corporate lobbying effort, many states pushed laws capping damages through their legislatures, claiming that high medical negligence awards were causing insurance premiums to skyrocket and forcing physicians to leave various states. In fact, evidence shows that damages caps lead to more medical errors, higher health care costs, and no increase in the number of practicing physicians.

The first wave of state cap legislation began in the mid-1970s. By 1987, 41 states had enacted general tort reform measures that included modifying joint and several liability, limiting punitive damages, and limiting noneconomic damages. In response to another spike in medical liability insurance prices, nine states implemented caps in the early 2000s as part of a third wave of legislation.

Thirty states currently have damages caps that apply to medical negligence claims. Witnessing the harm these damages caps caused to those who were injured or killed due to negligence, trial and appellate lawyers took their fight to the courts. The highest courts of nine states currently find that noneconomic damages caps are unconstitutional in personal injury claims. Ten states have raised their caps in the last decade, and a few states—including Idaho, Maryland, South Carolina, and Utah—automatically increase their cap annually for inflation. Below are two examples of states where the lawyers’ battles ultimately resulted in caps being struck down.

Florida. In 2006, Michelle McCall bled to death during childbirth at a medical center in Fort Walton Beach, Fla. The court awarded approximately $980,000 in economic damages and $2 million in noneconomic damages under the Federal Tort Claims Act (FTCA). But because of Florida’s wrongful death damages cap, the court slashed the noneconomic damages award in half. In a split 5-2 decision, the Florida Supreme Court ruled in Estate of McCall v. United States that the wrongful death noneconomic damages cap violated the state constitution’s equal protection clause because it imposed “unfair and illogical burdens on injured parties” and saved “a modest amount for many by imposing devastating costs on a few.”

Three years later, the Florida Supreme Court held that caps on personal injury noneconomic damages in medical negligence cases violated the equal protection clause of the Florida Constitution. In North Broward Hospital District v. Kalitan, the plaintiff underwent surgery for carpal tunnel syndrome. During intubation for the general anesthesia, one of the tubes perforated her esophagus. She survived but has severe pain and physical limitations. The court concluded that the caps “unreasonably and arbitrarily limit recovery of those most grievously injured by medical negligence.”

Kansas. Amy Miller sued her doctor for removing the wrong ovary during surgery. In 2006, a jury awarded her nearly $760,000, including $575,000 in noneconomic damages, which the trial court reduced under the state’s $250,000 noneconomic damages cap. The plaintiff argued in Miller v. Johnson that the cap violated the state constitution’s bill of rights, but the Kansas Supreme Court disagreed, holding that under a quid pro quo analysis, the cap afforded the plaintiff an adequate substitute remedy.

Two justices called the majority’s decision misguided, with one writing: “This court has incorrectly and unnecessarily limited jury involvement and allowed a segment of unfairly burdened Kansans to drown while maintaining higher profits for insurance companies and lower expenses for doctors. Shame on us.” After the ruling, the legislature increased the cap but only incrementally.

The Kansas Supreme Court revisited the issue in 2019 in Hilburn v. Enerpipe Ltd., a personal injury case involving a truck driver’s negligence. In another split decision, the court held the cap violated the Kansas Constitution’s right to a jury trial, rejecting the quid pro quo test it had previously used. The majority explained, “[W]e simply cannot square a right specially designated by the people as ‘inviolate’ with the practical effect of the damages cap: substituting juries’ factual determinations of actual damages with an across-the-board legislative determination of the maximum conceivable amount of actual damages.”

Other Tort Reform Measures

Required affidavits. In more than half of the states, medical negligence plaintiffs must obtain and file an affidavit or certificate of merit from an expert—typically in a relevant medical field—for their cases to move forward. Some states even require that this be filed with the initial complaint. These requirements create an added hurdle for would-be plaintiffs to jump over before they can even have their cases heard by a court. Plaintiffs have challenged expert affidavit requirements with some success.

For example, in Oklahoma, a patient who underwent laminectomies on his spine and became partially paralyzed as a result filed a medical negligence suit—but failed to attach an affidavit of merit as required under state law. Instead, he argued that the law was unconstitutional. In a 2017 decision, the Oklahoma Supreme Court agreed, finding that “access to the court system is a fundamental right” and that the law constituted “an impermissible barrier on a plaintiff’s guaranteed right to court access.”

Ex parte interviews. Some states have gone even further, requiring that a plaintiff allow a would-be defendant to interview the plaintiff’s treating physician without the plaintiff or plaintiff’s attorney present. In Florida, Emma Gayle Weaver accused her deceased husband’s physician of providing inadequate care—however, as part of her suit, she challenged the state law allowing presuit ex parte interviews. She argued that the law impermissibly burdened access to the courts and violated her deceased husband’s right to privacy.

The case reached the Florida Supreme Court, which struck down portions of the statute in 2017. The court went on to hold that the law “unconstitutionally conditioned a plaintiff’s right of access to courts for redress of injuries caused by medical malpractice, whether in the wrongful death or personal injury context, on the claimant’s waiver of the constitutional right to privacy.”

Expanding immunity. A national emergency is never an excuse for corporations to evade responsibility when they fail to act reasonably to protect patients. With the COVID-19 pandemic, AAJ has been pushing back on expansions of Public Readiness and Emergency Preparedness (PREP) Act immunity, which allows the U.S. Department of Health and Human Services (HHS) to issue an emergency declaration that temporarily expands civil liability immunity for medical negligence claims during a declared emergency event.

Fighting Feres

In 1950, the U.S. Supreme Court made it more difficult for members of the armed services and their families to hold the government accountable for medical negligence when it issued its decision in Feres v. United States. The resulting judicially created doctrine prohibits servicemembers from bringing claims against the government under the FTCA for injuries incident to their military service, even when the medical issue in question is entirely unrelated to combat or is routinely administered away from a combat zone. The decision has even extended to the children of servicemembers injured during birth.

Trial lawyers across the country have sought to undo some of the damage of Feres, seeking justice for their clients harmed by medical negligence at the hands of government employees.

A cert denial. In 2014, active-duty Navy Lt. Rebekah Daniel went into labor and delivered a healthy baby girl at the naval hospital in Bremerton, Wash. But within hours, Daniel died from a postpartum hemorrhage. Her husband, Walter, alleged that the medical staff failed to follow the standard of care. He sued the government for negligence and wrongful death under the FTCA, but the district court dismissed the case based on Feres. The plaintiff appealed, but the Ninth Circuit affirmed in May 2018.

In October 2018, the plaintiff filed a cert petition, which the Supreme Court denied. Justice Ruth Bader Ginsburg was ready to grant cert, but it was Justice Clarence Thomas’s strongly worded dissent that rings loudly: “‘Feres was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.’” He continued that the “unfortunate repercussions—denial of relief to military personnel and distortions of other areas of law to compensate—will continue to ripple through our jurisprudence as long as the Court refuses to reconsider Feres.” The Court also denied cert in another case involving the application of Feres that same Term.

A legislative remedy. In 2019, a provision that would allow active-duty military personnel to bring medical negligence claims against the U.S. government for injury or wrongful death that occurs at a covered military medical treatment facility passed the House of Representatives as part of the larger annual bill to authorize the U.S. Department of Defense. Unfortunately, the provision could not pass the Senate.

However, the Senate agreed to a “compromise” provision in the 2020 National Defense Authorization Act that establishes an administrative claims process for active-duty servicemember medical negligence claims. This administrative process, which is currently in the interim final rule stage, makes bringing medical negligence claims substantially more difficult than claims brought under the FTCA because it requires plaintiffs to prove all claims without engaging in discovery, institutes caps on noneconomic damages, and does not provide for appeal. AAJ and its members have been looking at options for improving this process, including strenuously advocating for the elimination of the damages cap.

Access to Medical Records

Under current law, individual patients have the right to obtain copies of their medical records. And the HHS has promulgated regulations that require a reasonable “patient rate” fee for medical records. The patient rate fee includes copying and postage only—usually totaling less than $10. Other substantial costs for production, data storage, infrastructure, document retrieval, and delivery—which can amount to thousands of dollars—are prohibited.

In 2009, Congress passed the Health Information Technology for Economic and Clinical Health (HITECH) Act, which allowed patients to designate a third party, such as their attorney, to receive electronic medical records (EMRs) on their behalf. In 2016, the HHS later clarified in non-binding regulatory guidance that the patient rate also applied to these designated third parties.

Nevertheless, record retention companies continue to skirt the law by passing on exorbitant fees to attorneys who seek records on their clients’ behalf. These higher rates, which often are in the tens of thousands of dollars for attorneys requesting records on behalf of their clients, are burdensome litigation costs. Obtaining complete and accurate medical records at a reasonable price is essential to all medical negligence cases.

One major records company, Ciox Health, has also pursued litigation to overturn third-party fee limitations. In 2020, the District Court for the District of Columbia issued Ciox Health, LLC v. Azar, holding that the patient rate can apply to individual requests to access health information only and does not extend to a request by a patient to transfer the EHR to a third party.

While the Ciox litigation was ongoing, the HHS finalized a regulatory rule that concluded that charging a patient’s designated third-party excessive fees may be an unlawful violation of information blocking rules, which are subject to administrative fines. However, enforcement of this rule has been lackluster at best due to various extensions and the agency prioritizing other issues.

On Jan. 1, 2021, the HHS also proposed a rule that would further extend the patient rate to third-party designee requests for all EMRs. The proposal, which is pending, also strengthens patient access rights by requiring record requests to be delivered “as soon as practicable,” prohibits unreasonable identity verification measures, and requires more transparency for fees associated with record requests. It is expected that the HHS will finalize a rule that will incorporate most, or all, of these provisions.

Systemic failures in our health care system persist, but AAJ and its members continue to fight back against efforts by doctors, hospitals, and other medical providers to evade accountability.