Between fall 2023 and summer 2024, state supreme courts handed down mixed decisions: Some increased liability for healthcare practitioners, while others maintained the liability status quo.
Setbacks
The Washington Supreme Court handed down two decisions that greatly expanded healthcare liability. In Estate of Essex v. Grant County Public Hospital District No. 1, the court held that a hospital may be vicariously liable for the malpractice of an independent contractor. Businesses are not ordinarily liable for the negligent acts of independent contractors due to the nature of the relationship—including that businesses are not generally permitted to control how a contractor completes assignments. The court declared, however, that providing emergency care was a nondelegable duty, and hospitals may be vicariously negligent. Further, the court expressly refused to limit the legal theories upon which plaintiffs may bring lawsuits against hospitals arising out of alleged malpractice.
In Bennett v. United States of America, the Washington Supreme Court handed another blow to healthcare practitioners by declaring that the medical malpractice statute of repose—the outside time limit in which plaintiffs may bring an action—violated the state constitution’s privilege and immunities clause. The dissenting justices defended the public policy for the statute of repose, including “to prevent plaintiffs from bringing stale or frivolous claims against defendants when evidence may have been lost or witnesses are no longer available.”
The Nevada Supreme Court eliminated a potential defense for healthcare professionals. In Taylor v. Brill, the court unanimously decided that a patient’s knowledge of the risks associated with a medical procedure was irrelevant to a medical malpractice claim, because healthcare practitioners must act within the standard of care even if a patient understands the risks. In an additional blow, the court used this case to hold that health insurance write-downs of medical bills were not admissible—effectively permitting plaintiffs to recover the billed amount of medical charges incurred as damages, not those actually owed and paid.
The Colorado Supreme Court eased the plaintiff’s burden when arguing to exceed the total cap on damages in a medical malpractice case. State law limits the amount that plaintiffs in medical negligence cases may be awarded unless a trial court determines that the limit would be unfair. In Scholle v. Ehrichs, the Colorado high court held that a trial court may consider the billed amount of medical bills, not the amount owed and paid, when determining fairness. This will likely permit the cap to be exceeded more frequently.
In Hawaii, the state’s high court overturned precedent and for the first time permitted an adult child to sue for damages for an injured parent prior to the parent’s death. In HELG Administrative Services, LLC v. Department of Health, the court unanimously held that an adult child may sue for loss of parental consortium for injuries to a parent where the parent sustained a severe injury. Previously, the court had held that the parent must be deceased before a loss of parental consortium was available.
In two consolidated cases, Stokes v. Swofford and Selliman v. Colton, the Michigan Supreme Court held that expert witnesses in medical malpractice cases do not need to practice in the same subspecialty as the subject matter of a medical negligence suit. This overruled the court’s precedent that decided the opposite and will likely make it easier for plaintiffs’ attorneys to find experts to support medical negligence cases.
Positive Developments
The Texas Supreme Court handed down two decisions that limited healthcare liability. In Marsillo v. Dunnick, the Texas Supreme Court unanimously held that the plaintiff’s burden to prove “willful or wanton negligence” in medical malpractice claims requires evidence of gross negligence at a minimum. The court wrote that since the plaintiff had failed to prove gross negligence (a lower standard), the plaintiff had failed to prove “willful or wanton negligence” (a higher standard). The court did not, however, more fully define “willful or wanton.”
The Texas high court also held in Noe v. Velasco that the economic and noneconomic costs of raising a healthy child were not recoverable in a case involving the alleged negligent sterilization of a patient. The court limited recovery to the economic damages caused by the alleged medical negligence, such as medical expenses. The court wrote that damages may not result from the life of the child, pregnancy, or birth.
The Ohio Supreme Court held in Everhart v. Coshocton County Memorial Hospital that wrongful death cases involving healthcare negligence are bound by the same four-year statute of repose as medical malpractice cases.
In Daher v. Prime Healthcare Services–Garden City, LLC, the Michigan Supreme Court unanimously held that in wrongful death cases, plaintiffs may not recover the lost future earnings of the deceased. This ended so-called “Denney Damages,” in which the court of appeals had held in Denney v. Kent County Road Commission (2016) that such damages were recoverable. The high court interpreted the plain meaning of the statute that lost future earnings were not permitted by the statute.
In Downey v. City of Riverside, the California Supreme Court reexamined its precedent regarding when a plaintiff may sue for bystander negligent infliction of emotional distress—a cause of action based on witnessing an injury to a loved one. The court held that a plaintiff may bring a bystander negligent infliction of emotional distress (NIED) claim when the plaintiff has suffered emotional harm from the contemporaneous sensory awareness of a loved one being injured. The court rejected the additional requirement that the plaintiff must be aware that the defendant caused the injury. As part of its examination of past cases, the court wrote that bystander NIED was unavailable in most medical malpractice cases because—unlike other personal injury cases, like a car accident—medical negligence is “essentially invisible” to a layperson; therefore, the plaintiff cannot claim emotional harm from the contemporaneous sensory awareness of the injury to the loved one.
Learn More
We work tirelessly to advocate on behalf of our members and drive positive change. Learn more about how The Doctors Company is defending 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.
The ultimate decision regarding the appropriateness of any treatment must be made by each healthcare provider considering the circumstances of the individual situation and in accordance with the laws of the jurisdiction in which the care is rendered.
The Doctor’s Advocate is published quarterly by Corporate Communications, The Doctors Company. Letters and articles, to be edited and published at the editor’s discretion, are welcome. The views expressed are those of the letter writer and do not necessarily reflect the opinion or official policy of The Doctors Company. Please sign your letters, and address them to the editor.