Florida Strikes Down Damage Caps in Wrongful Death Cases Caused by Medical Malpractice

As reported here, Florida’s Supreme Court recently struck down that state’s damage cap in medical malpractice cases. This is a great development for the rights of victims of medical negligence.


Damage caps do not benefit the general public and result mainly in limiting citizens’  rights of redress. Laws imposing limits on recovery for the wrongdoing of others are promoted by well-funded, anti-consumer groups and insurance company lobbyists.  Their goal is not to pass cost savings on to physicians or patients, but rather, to boost insurance company profits, insulate incompetent doctors from liability and promote propaganda about a non-existent “malpractice crisis.” The result is that badly injured consumers and the families of those who die wind up paying the high cost of medical mistakes in the name of cheaper insurance premiums for doctors–the ones who made the mistakes.

I’ve written about Utah’s wrongful death laws, and how the State Constitution protects citizens from limits.  But many lawyers still believe that damage caps apply–even in wrongful death cases.  If you’ve suffered the loss of a loved one due to medical negligence, you deserve an attorney who will fight to hold the negligent doctors and hospitals accountable.  No amount of money can bring a loved one back, but it can help defray some of the economic hardship caused by the death, and can send a message to doctors that they must practice within the standard of care for the safety of everyone.

If you have lost a family member due to a medical error, contact malpractice attorney Ryan Springer at (801) 502-8735 for a free, no obligation consultation, or fill out the contact form below.


Landmark Utah Supreme Court Case Restores Fairness in Malpractice Cases

On Friday, the Utah Supreme Court handed down its decision in Turner v. University of Utah Hospitals.  You can read the decision here.

Ms. Turner was severely hurt in a car accident, and while she was being treated for her injuries at the hospital, staff members negligently moved her, breaking her back and paralyzing her.

When Ms. Turner went to trial, the jury pool was stacked against her. Because of a strange technicality called the “cure or waive” rule, Ms. Turner’s lawyer was put in a Catch-22 when he tried to eliminate some biased jurors from the panel.

Additionally, although there was no evidence of any alternative or approved treatments, the defense lawyers convinced a judge to give the jury an instruction that contradicted the law.

Because of these legal errors, the jury let the negligent staff members off the hook for their negligence.

Ms. Turner’s lawyer appealed to the Utah Court of Appeals, but that court concluded that the “cure or waive” rule applied, and that the erroneous jury instruction was harmless.

Finally, Ms. Turner convinced the Utah Supreme Court to reexamine the case.  She asked for help from attorneys Ryan Springer and Michael Karras.  Mr. Springer and Mr. Karras wrote an amicus curiae brief on her behalf, arguing that fair trials should be more important than the rigid application of procedural rules, and also arguing against the use of poor and misleading jury instructions.

The Utah Supreme Court unanimously overturned the court of appeals decision and granted Ms. Turner a new trial.  The court agreed that the cure or waive rule is a bad idea, and that trial courts must be cautious in giving jury instructions in medical malpractice cases.

Mr. Springer and Mr. Karras donated their time and effort in this case to make sure that all Utah citizens get a right to a fair trial.  We wish Ms. Turner the best of luck in her continued fight for justice.


Financial Incentives for Medical Malpractice?

medicalbills An interesting study published in the Journal of the American Medical Association reveals that hospitals benefit financially from medical errors.

If you think about it, it makes sense.  If a doctor or nurse provides negligent medical care that results in greater harm to the patient, the patient will have to stay longer, undergo additional procedures, and maybe even extra surgeries.  All of these cost money, and the patient is expected to pay for the medical errors.

This is concerning, because there is actually a financial incentive for health care providers to commit medical malpractice.  Thanks to tort reform efforts that cap damages and immunize certain providers from ever being sued, there are fewer and fewer ways to hold negligent doctors and nurses accountable for their mistakes.  Without such accountability, and where profits actually go up along with the number of mistakes, patients are the ones left paying the price for negligence–both in terms of their physical injuries, as well as their pocketbooks.

medical-bills21Thankfully, there are still options if you’ve been injured by medical malpractice.  A qualified, experienced Utah medical malpractice attorney can help you recover the additional costs and expenses associated with negligent medical care.  You probably won’t make the kind of multi-million dollar profits that hospitals and health care corporations make, but you can at least get the peace of mind that comes from knowing that your medical bills will be paid by the insurance carrier for ones who made the mistakes in the first place.


Utah Wrongful Death Law

Utah is just one of four states with constitutions that specifically preclude any limitation on recovery in wrongful death suits.  The Utah State Constitution expressly states that “[t]he right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation . . . .”  Utah const. art. XVI, § 5 (1896) (emphasis added).  Utah’s constitutional proscription on limiting recovery for wrongful death is sound public policy.  As one scholar has explained:

Under the pecuniary loss rule, followed in almost every state, life has no intrinsic value—no value per se.  This seems to be a peculiar result in a society that refuses, at least for some purposes, to place any price tag on human life.  Of course, an obvious distinction can be drawn between the cost of saving a life not yet lost and allowing tort recovery for one that is gone.  Since no amount of money can bring the decedent back, she cannot be compensated in any meaningful way for the loss of her life.  However, while this may justify a difference in the monetary values society attaches to lives that can be saved and those already lost, it does not support the traditional legal notion that a lost life has no cognizable value apart from the lost economic benefits the decedent would have conferred upon her survivor.

Andrew Jay McClurg, It’s a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57, 59 (1990).

Fortunately, under Utah law, there is not—and there cannot be—any limit on the amount recoverable in wrongful death cases.

Families’ rights to seek judicial redress for the death of a loved one due to medical malpractice or other negligence are constitutionally protected. The nature of the right to seek judicial redress for wrongful death, and its constitutional significance, can be understood by examining history:

According to a Latin maxim, personal actions die with the person. The common law followed that maxim, holding that the death of either the tortfeasor or the victim eliminated all tort claims. In particular . . . [i]f the tort victim died, his cause of action was at an end. His estate had no cause of action.

Dan B. Dobbs, The Law of Torts, § 294 (2000). In 1846, however, England enacted Lord Campbell’s Act, which “created a wrongful death claim for the relatives of a decedent when the decedent would have had a claim if he or she had been merely injured and not killed.”

Utah’s Constitutional Wrongful Death Clause was “based on the enactment of Lord Campbell’s Act in 1846 in England to remedy a defect in the common law. The Act spread to this country, was enacted essentially in its present form in the Territory of Utah, and was then included in the Utah Constitution at statehood . . . . The plain meaning of the constitutional provision . . . is to prevent the abolition of the right of action for a wrongful death, whether in a wholesale or piecemeal fashion.”  Berry ex rel. Berry v. Beech Aircraft Corp., 717 P.2d 670, 684 (Utah 1985) (internal quotations and citations omitted).

Accordingly, the state legislature has consistently maintained a statutory mechanism by which Utah citizens might avail themselves of the right. See Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179, 1184 (Utah 1983); Utah Code Ann. § 78-11-7. Discussing this act, the Utah Supreme Court stated:

Under 78-11-7, when the death of an adult is caused by the wrongful or negligent act of another, the heirs or the personal representative of the heirs may bring an action for damages against the person causing the death. This Court . . . interpreted the statute and held it to create “a new cause of action for the loss suffered by the heirs by reason of death and (the action) only comes into existence upon the happening of death.” The action is not derivative.

Hull v. Silver, 577 P.2d at 103-04 (quoting VanWagoner v. Union Pac. R. Co., 186 P.2d 293, 303 (Utah 1947)) (emphasis added).

Hull also highlights a critical point that is useful in understanding Utah’s wrongful death jurisprudence. In holding that the doctrine did not apply, the court relied heavily on the Washington Supreme Court’s decision in Johnson v. Ottomeier, 275 P.2d 723 (Wash. 1954). Quoting Johnson, the Utah Supreme Court adopted the reasoning that, “[n]ot having as its basis a survival statute, the action for wrongful death is derivative only in the sense that it derives from the wrongful act causing the death, rather than from the person of the deceased.” Hull, 577 P.2d at 106 (quoting Johnson, 275 P.2d at 725).

Those of us that live in Utah ought to be grateful to our State’s founding fathers, who had the wisdom and foresight to include this important provision in our State Constitution.

Insult to Injury: When Doctors Lie to Patients

Last Summer, I wrote about the increasing number of doctors that withhold critical information from their patients, especially when that information involved medical mistakes.

According to a survey published by Health Affairs, things are getting worse, not better.  The study shows that although two-thirds of doctors agree they should share serious medical errors with their patients, at least one-third did not  agree.  Worse, some doctors are not only keeping information from their patients, 1 out of 10 are actually lying about it.

In an interview with ABC News Dr. Lisa Iezzoni, lead study author and professor of medicine at Harvard Medical School, said “We don’t know the exact reasons for many of these findings, but it is a sign of caution that patients need to be aware of.”

What can a patient do when a trusted medical provider adds insult to injury by committing medical malpractice and then lying about it?

In Utah, this kind of conduct may be the basis for a separate claim called “breach of fiduciary duties.”  The Utah Supreme Court has unequivocally held that “Doctors stand in a  fiduciary relationship with their patients.”  Daniels v. Gamma West Brachytherapy, LLC, 2009 UT 66, 221 P.3d 256; see also Sorensen v. Barbuto, 2008 UT 8, 177 P.3d 614.

As noted jurist Benjamin Cardozo explained, “Many forms of conduct permissible in a workaday world for those acting at arm’s length, are forbidden to those bound by fiduciary ties. A [fiduciary] is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior.” Meinhard v. Salmon, 164 N.E. 545, 546 (N.Y. 1928).

And the Utah Supreme Court has held that fiduciaries owe several discrete duties, including duties of loyalty and honesty.  See, e.g., McLaughlin v. Schenck, 220 P.3d 146, 153-56 (Utah 2009); Smith v. Fairfax Realty, Inc., 82 P.3d 1064, 1074 (Utah 2003); Lynch v. MacDonald, 367 P.2d 464, 468 (Utah 1962).

Doctors who commit malpractice and then lie to their patients about it are not only liable for negligence, but for breaching their legal duties as fiduciaries as well.  Perhaps worst of all, they are guilty of violating the trust that their patients have placed in them.

Killer Pain Killers: Part II

I have previously written about the epidemic of prescription drug deaths that occur in the State of Utah.  Medical mistakes in prescribing painkillers are a leading cause of wrongful deaths.

Utah station KSL recently reported that many errors are due to opiate conversion charts.  Careless doctors rely on these charts when converting patients from one form of opiate to another, often without understanding the effects of the drugs or the consequence of their decision.  It can have catastrophic results for the patient.

According to the report:

Nationally, an estimated 15,000 people die each year from overdoses of opioid pain medicine. That includes such familiar painkillers as Oxycontin, oxycodone, Percocet, morphine, and methadone.

Adding to that number are the number of deaths in Utah.  According to the Deseret News, prescription drug abuse is “the leading cause of death in the state.”

Negligent health care providers who fail to properly prescribe and monitor patients on opiate painkillers are causing dozens, if not hundreds, of deaths each year due to prescription drug negligence.

I have done a lot of cases involving prescription drug negligence, and witnessed firsthand the loss and heartbreak of those that are left behind.  Unfortunately, insurance company lawyers literally add insult to injury by trying to place all the blame on the patient.  They are some of the most challenging and complex cases I handle, but ultimately, they are rewarding not only because I can help families deal with the loss of loved ones, but also because, by holding the negligent doctors accountable, they’ll be more cautious the next time so that this doesn’t happen to someone else.

The Real Medical Malpractice Crisis

Politicians and special interest lobbyists love to use the spectre of a “medical malpractice crisis” to justify taking away constitutional rights to jury trials in health care negligence cases.  But the real crisis is not some imaginary explosion in “frivolous lawsuits” or “lottery verdicts”–the real crisis is medical malpractice itself.

The AARP recently published an article entitled “Hospitals May Be the Worst Place to Stay When You’re Sick,” and it makes a great point about the sheer number of preventable injuries–including wrongful deaths–that occur due to negligent medical care:

The number of patients who die each year from preventable hospital errors is equal to four full jumbo jets crashing each week. If airline tragedies of that magnitude were occurring with such frequency, no one would tolerate the loss.

But rather than address the harms caused by medical malpractice, powerful corporate interests and insurance companies have convinced politicians and even some members of the public that more limits need to be placed on the civil justice system.

The most recent of these assaults is the passage of H.R. 5 by the U.S. House of Representatives.  It is the first piece of legislation sponsored by the House that lacks a statement of Constitutional Justification–probably because they couldn’t find one.  Indeed, although the bill passed a Republican-controlled House, it has been widely criticized by conservative scholars such as the Heritage Foundation’s Hans von Spakovsky who notes that it tramples states’ rights.

In a bit of impeccable timing, Cornell University Law Professor Theodore Eisenberg recently published a paper analyzing the empirical effects of “tort reform” legislation over the past several decades.  The paper, which can be downloaded here, concludes that tort reform legislation has indeed lowered costs for health care providers.  Those savings, however, have not been passed on to consumers.  Additionally, limits on recovery have discouraged hospitals from enhancing patient care.  Caps on damages have removed the incentive to improve the quality of care.

What this means for the average American is that thanks to tort reform, you have fewer rights, and you pay more for lower quality health care.

Meanwhile, insurance company shareholders are laughing all the way to the bank.

Malpractice Myths: Reaping What You Sow

The year is almost up, and so far, I’ve had over a hundred Texans contact me and ask for me to help them file a medical malpractice case in their home state.  My license and practice are in Utah…so why are they calling me?  Texas is a big place, so why can’t they find a lawyer to help them a little closer to home?

They tell me they’ve tried.  They say they’ve called dozens of Texas lawyers, but because of that state’s rigorous, pro-insurance “tort reform” measures, there are fewer and fewer lawyers who are able to help injury victims pursue justice.  Certainly, there are still plenty of attorneys in Texas, they’ve just shifted their focus to other areas of law.

I previously wrote that the real goal of so-called “medical malpractice reform” is not to decrease health care costs or improve the quality of medical care, it is to escape the consequences of negligence.  Once the attorneys are gone,  negligent physicians will be able to act with impunity; there will be no one to hold them accountable.

As you might expect, the rate of medical negligence in Texas is on the rise, but injured patients have little or no recourse.  Additionally, data shows that the new laws didn’t solve the “doctor shortage crisis” that lobbyists claimed.

Meanwhile, the State of Illinois held that damage caps were unconstitutional over two years ago.  And what’s the result?  Has there been an explosion of “frivolous” lawsuits?


The facts won’t change the rallying cry of insurance companies and corporate healthcare lobbyists.  You can rest assured that with each upcoming legislative session, they will be trotting out the same, tired old myths in an effort to get politicians to take your rights away.

Breast Cancer Awareness Ride

As a medical malpractice attorney, I have represented dozens of women and their families in cases involving delays in treatment for breast cancer.  Those cases have taught me about the courage of women facing this terrible disease, and that early detection and treatment are critical.

On a personal level, I have a mom, a wife, and a daughter.  Statistically speaking, breast cancer will affect at least one of them. That is why breast cancer awareness and support for research are important to me.  That’s one of the reasons why I encourage you to join me in this Saturday’s Breast Cancer Awareness Ride sponsored by the fine folks at Trek Bikes of American Fork.

You can register for the event right here (there are 25 mile and 10 mile options) and get more information from the Trek Bikes of American Fork web page.  This is an outstanding event, and in addition to being a great time, it’s an important cause.


The Thin Line Between Negligence and Crime

Attorneys for a Utah physician convicted of distributing opiate narcotics to his patients for no legitimate medical purpose have asked the court to dismiss the case based on accusations of prosecutorial misconduct.  You can read the article here.

This case illustrates just how thin the line can be between negligence and criminal conduct.  Not all cases of medical malpractice are crimes, even when they involve narcotics.  As a Utah medical negligence attorney, I have represented many clients in civil cases involving the negligent prescription of narcotic painkillers.  Some of these cases involve separate criminal actions as well which are pursued by local and federal law enforcement agencies.

In these cases, there are a number of hidden pitfalls for unwary patients and inexperienced attorneys.  The negligent physician’s insurance company may try to escape responsibility by denying coverage and forcing injured victims to seek restitution in the parallel criminal proceeding.  At minimum, the negligent doctors’ attorneys will try to delay the civil case for years, pending the outcome of the criminal matter.  This delay can cause catastrophic results for families who have lost loved ones, face enormous medical bills, and have smaller household incomes.  Prescription drug use causes hundreds of deaths per year, and leave unanswered questions for the families.  If you’re considering a medical malpractice lawsuit, or just want answers, give me a call for a free, no obligation consultation: (801) 424-9088.