Law360's Tort Report: Calif. Med Mal Cap Challenge Delayed

By Y. Peter Kang
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Law360 (May 4, 2020, 7:35 PM EDT) -- The postponement of a campaign to raise a California cap on pain and suffering damages leads Law360's Tort Report, which compiles recent personal injury and medical malpractice news that may have flown under the radar.

COVID-19 Delays Calif. Damages Cap Ballot Initiative

A consumer advocacy group seeking to use a ballot initiative to significantly increase California's cap on so-called noneconomic damages in medical malpractice cases has announced that it's postponing the campaign due to uncertainty caused by the coronavirus pandemic.

Consumer Watchdog on Thursday said it had already collected nearly 100 million signatures — well over the 623,000 it needed to put the measure on the November ballot — but decided to postpone the initiative until the 2022 election.

Nick Rowley, a personal injury plaintiffs attorney who has been spearheading the group's efforts, told Law360 that the timing wasn't right for the ballot measure given insurance industry lobbyists' ongoing efforts to immunize health care providers from liability during the crisis.

"The insurance industry will cloud people's judgment," he said, adding that the battle will be moved to 2022, "when we will have a fair fight and we will win."

The present cap was set at $250,000 in 1975, when California enacted the Medical Injury Compensation Reform Act. But the cap has never been adjusted for inflation, and Consumer Watchdog wants it lifted to approximately $1.2 million.

In addition, the group's proposal has a provision that would allow judges and juries to decide whether to waive the cap in cases involving catastrophic injuries or death. Currently, juries are not told of the existence of the cap, the group said.

"Voters are overwhelmed with trying to keep their families safe and deal with the economic impacts of COVID-19," Scott Olsen, a Consumer Watchdog board member, said in a statement Thursday. "While we are constantly hearing from more Californians harmed by medical negligence who have been denied accountability because of this 45-year-old law, it will be more productive to have this conversation when everything stabilizes."

Fla. Woman Keeps $4.6M Award in Sex Abuse Suit Against Parents

A Florida appeals court has affirmed a Florida jury's $4.6 million award in a suit brought by a woman who accused her father of sexually abusing her for 16 years while her mother negligently failed to prevent the abuse.

A three-judge panel for the First District Court of Appeal on Thursday upheld the Alachua County jury's August 2018 verdict without issuing an opinion.

The jury had ruled in favor of Rebekka Trahan in a suit accusing Scott Mulholland Sr. of sexually abusing Trahan, his biological daughter, from the age of 8 until she left home at the age of 24. Trahan, who did not file her lawsuit under a Jane Doe alias, had also alleged that Mulholland encouraged her eldest brother, Scott Mulholland Jr., to sexually abuse her.

The jury found the elder Mulholland liable for child abuse and battery or sexual battery, and it awarded $4 million for past and future pain and suffering and mental anguish, and $643,000 for future medical expenses, according to the verdict. His wife, Tina Mulholland, was cleared of child abuse but found liable for negligence.

Trahan's attorney, Michael Dolce of Cohen Milstein Sellers & Toll PLLC, applauded the appellate court's affirmance.

"We are pleased that the court has once again affirmed Rebekka Trahan's truth about the horrific abuse that came at the hands of her family," he said in a statement Thursday. "Nobody should have to experience the pain and suffering Rebekka endured, but this ruling today is critical for ensuring justice against her abusers."

The case is Rebekka Trahan v. Scott S. Mulholland et al., case number 1D18-4226, in the Florida First District Court of Appeal.

NY Won't Extend Child Victims Act's 'Look-back Window'

New York legislators declined to extend the deadline for which people of any age can file a civil suit under the Child Victims Act, a law enacted in August that allows people who experienced child sexual abuse in New York to file a civil claim any time before the age of 55, up from the previous cutoff age of 23.

Because the COVID-19 pandemic in hard-hit New York prompted the courts to bar any "nonessential" new lawsuits from being filed, the CVA's one-year "look-back window," a grace period for people above the age cutoff to file claims, is effectively closed.

State lawmakers had the opportunity to extend the window when they recently passed the state's annual budget bill on April 3, but opted not to despite Sen. Brad Hoylman's proposal to tack on one more year, according to news reports. Hoylman told local media that he brought up the issue during budget negotiations but was rebuffed.

Wis. COVID-19 Medical Immunity Law Angers Trial Attys

Critics of a recently enacted law in Wisconsin providing health care provider immunity during the COVID-19 pandemic said lawmakers' last-minute changes have improperly broadened the scope of immunity, according to news reports.

Wisconsin Gov. Tony Evers on April 15 signed into law Wisconsin Act 185, which among other things provides a civil liability shield for health care providers, including nursing homes, for the duration of the state's health emergency and 60 days after its conclusion, according to the law's text.

However, a last-minute amendment submitted by Assembly Speaker Robin Vos, a Republican, struck language stating that it applied to treatment related to COVID-19, which trial attorneys said means that immunity applies to all health care treatment rather than treatment related to or impacted by the pandemic, according to news reports.

Beverly Wickstrom, president of the Wisconsin Association for Justice, formerly known as the Wisconsin Academy of Trial Lawyers, told local media that the original language of the bill should have been used.

"If it had been solely limited to the treatment of COVID-19, then I would say yes, that makes sense because there is so little known about the virus," she said, according to news reports. "But to go beyond that, to encompass everything that the health care system does, it just doesn't make any sense at all."

NJ Med Mal Death Suit Ends in $6.5M Deal

A suit filed in New Jersey court accusing a doctor and a hospital's nurse of causing a pneumonia patient's death by failing to timely place a breathing tube has been settled for $6.5 million, attorneys for the patient's estate announced.

A Middlesex County judge granted approval of the final portion of the deal on April 23, according to attorneys with Eichen Crutchlow Zaslow LLP. The suit alleges that a physician specializing in critical care failed to timely order an emergency intubation so that the patient, Marie Horvath, could be put on a ventilator, despite test results showing signs of acute respiratory distress syndrome.

The estate had also alleged that a nurse anesthetist for St. Peter's University Hospital breached the standard of care by inserting the breathing tube into the patient's esophagus rather than the trachea.

The case is Estate of Horvath v. Alegre-Gomez, case number unavailable, in the Superior Court of New Jersey, County of Middlesex.

--Editing by Aaron Pelc.

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