The Supreme Court gave the Jenkins family a second chance in court today.

The dispute arose in 2005 when a water main broke on 3300 South in Salt Lake and flooded the Jenkins’ home.  Investigation revealed that the line had been installed in about 1957 and was near the end of its useful life.  During the decade before 2005, the line had broken near the Jenkins’ home about 9 time times.  In 2002, the Jordan Valley Water Conservancy District had decided to replace the line but delayed for financial reasons.

When no settlement could be reached, the Jenkins sued.  Judge Judith Atherton threw the case out of court.  She threw the case out, reasoning that the case was barred by the public duty doctrine.

The public duty doctrine prevents lawsuits against governmental entities when the government fails to protect the public.  The State of Utah successfully used it to defend itself when a mental patient escaped from the Utah State Hospital and injured an innocent member of the public.  The public duty doctrine says that the governmental is not liable in court for failing to protect the public.

The Court of Appeals disagreed with Judge Atherton.  The Court of Appeals said the public duty doctrine did not apply because the Jenkins were not merely part of the general public.  They were homeowners who lived adjacent to a pipe that had been slated to be replaced.  Because the Jenkins had a “special” relationship, they are allowed to sue.

Next, Judge Atherton reasoned that a 1987 law gave the Water District complete immunity.  The Court of Appeals agreed but found the 1987 law unconstitutional.

The Utah Constitution prohibits the legislature from closing the court house doors.  This is frequently called the “Open Courts” provision of the constitution.  The reason it was put in was that the founding fathers of the State were worried that special interest groups would lobby the legislature to close the court house doors to people who might have previously had valid claims against the special interest group.

Recent years have show that concern to be well founded.  Over the past 30 years, the legislature has been requested to close the court house doors.  Just last year, the legislature closed the court house doors to patients injured when hospitals hire doctors the hospitals no are bad doctors.  That legislation was sponsored by Senator Adams who happens to also serve on a hospital board.  I call it the “pass the trash” bill.

In the Jenkins case, the Court of Appeals ruled that the legislature closed the court house doors to the Jenkins.  Normally, businesses can be sued.  The delivery of water for a fee is a business.  Before 1987, all water companies could be sued for negligence.  It didn’t matter whether they were private or public.  After 1987, public water systems were given immunity.

This raises the question of whether the court made a decision that is good for the people of the State of Utah.  I believe it did.  We’ve seen an increasing trend of governmental entities taking on responsibilities that could be run privately.  Many cities in Utah recently took on the business of selling Internet services.

One may argue that the city needs to supply water because no one else would do it.  That isn’t true.  In many areas of the State of Utah, water is supplied by private companies.  Gas, electricity, telephone and internet are routinely supplied by private companies.

Giving a public utility immunity only puts the public utility at a competitive advantage.  It makes it harder for private utilities to compete.

Rather than giving public utilities immunity, the people of the State of Utah would be better off if governmental entities got out of competing with private businesses.

Lois A. Snowe-Mello, a Republican in the Maine Senate, recently sponsored a bill to limit a doctor’s liability when that doctor committed malpractice.  To her surprise, the doctor’s lobby asked her to withdraw the bill.

The New York Time argues that this is because doctors are becoming more liberal.  According to the New York Times, conservatives support tort reforms and liberals oppose it.  The logic continues, conservatives are traditionally business owners  while shift workers are traditionally liberal.  The New York Times caps off this reasoning by arguing that because doctors are leaving private practice and becoming employees, they are becoming more liberal and hence are opposing tort reform.

The problem with the New York Times’ reasoning is that it simply labels people without analyzing their motivation.  It is true that over the past 30 years or so, Republicans have supported tort reform while democrats have opposed it.  Republicans have supported the chamber of commerce while Democrats have supported labor unions.  Those labels assume that Republicans are conservative while democrats are liberal.  In the real world, many Republicans are not conservative and many Democrats are not liberal.  Unfortunately, in the real world, many politicians simply support themselves and effectively give their votes to whomever gives them the most support.

So what makes someone conservative or liberal?  Conservatives believe in not changing the law to pander to the wishes of a minority, conservatives believe in self responsibility and conservatives believe in trial by jury.  Tort reform is not a conservative ideal.  Tort reform seeks to change laws that have existed for hundreds of years by giving doctors and businesses carte -blanche permission to hurt other people through their own carelessness because juries can’t be trusted to make good decisions.

So how did the Republican party (the conservative party) end up supporting such an unconservative movement?

Numerous polls have been done on tort reform.  Interestingly, the polls show that the phrasing of the question is the most important indicator of what people believe.  If people are asked, ”should doctors be responsible to help those that they carelessly hurt” the vast majority of conservatives answer yes.  On the other hand, if a poll asks, “who do you support more, doctors or trial lawyers” the overwhelming majority support doctors.

Recently, the Utah State legislature passed a tort reform bill.  It gives hospitals immunity for hiring and retaining bad doctors, even when the hospital knows the doctor has hurt numerous patients in the past.  In speaking with Utah legislators, I discovered that the bill was pushed through by leadership with no real debate.  Senator Adams, who also serves on a hospital board, sponsored the bill by claiming that the bill was meant to overturn a recent Supreme Court decision made by activist judges.  The bill was never debated on its mertis.  President Lockhart, a rigistered nurse, never allowed any real debate on the bill.  Instead, in a closed Republican Caucus meeting, Republican leadership reiterated Senator Adams argument that the bill was meant solely to reign in activist judges.

Senator Adams understands the art of rhetoric.  By pushing a bill through as a bill to restrain activist judges, he was able to get the support from the Republican legislature.  If he had argued that the bill was necessary to protect the hospital, on whose board he served, because hospitals don’t trust the citizens of Utah to serve on juries and hold his hospital responsible when it knowningly hires and retains doctors with a track record of hurting people, I expect the bill would not have passed.

So why did the Maine doctors recently oppose tort reform?  Perhaps because they are still conservative but looked at more than the surface of the argument.  Why is it good for some doctors when bad doctors are held responsible for carelessly hurting patients?  Well, I think its rather obvious, that good doctors might realize it is in their best interest, and the best interest of their patients, to hold bad doctors responsible.  First, keeping bad doctors in the practice of medicine, increases competition faced by the good doctors.  I have a relative who is a doctor.  He is increasing frustrated by the pressure he is under to move from patient to patient.  He believes the quality of care goes down when the amount of time spent with the patient goes down.  Good doctors end up looking bad in the eyes of their employers when they can’t see as many patients in a day as a bad doctor.  At least the threat of malpractice liability gives good doctors some cover to hold the line against their employers.  Second, tort reform hurts patients who end up with bad results because bad doctors are not forced out of the profession.  I believe that most doctors want to practice good medicine and they care deeply for their patients.  It can be frustrating to good doctors to repeatedly see a bad doctor hurt patients yet continue to practice in the community because tort reform protects bad doctors.  Third, giving doctors immunity for carelessly hurting others, brings the entire profession into disrepute.

I firmly believe that true conservatives would not support tort reform if they sit back and think about it.  I was brought up being taught that if I carelessly break my neighbor’s window with a baseball, I’ve got to walk on over, fess

The Utah Supreme Court, today, ruled that Parker Jensen and his parents have no legal claim against the State, its employees and the doctors who turned him into the State.

In 2003, Parker was diagnosed with a rare and aggressive form of cancer at Primary Children’s Medical Center.  PCMC recommended surgery and chemotherapy.  The chemotherapy was very aggressive and ran the risk of making Parker sterile.  The parent’s refused treatment at PCMC. Instead, they sought second and third opinions and even considered alternative treatments.

In a regularly scheduled meeting between the staff at PCMC and the Utah Division of Child and Family Services, Parker’s case was discussed.  It was decided that DCFS would file a juvenile court case against Parker’s parents and obtain a court order requiring chemotherapy.

The juvenile court judge agreed.  Parker’s parents violated the order and took Parker to Idaho.  The juvenile court issued a warrant for their arrest.  The Salt Lake prosecutor’s office filed charges of kidnapping against Parker’s parents.

They were arrested in Idaho and Parker’s dad spent four days in jail.  He was also fired from his job.

When political pressure was brought to bear on DCFS, they dropped the juvenile court case.  Parker never got chemotherapy and it turned out the doctors were wrong.  He did not have cancer.  He is currently serving an LDS mission in Chile.

The Supreme Court threw out the case because under Utah law, people can only sue for money for the violation of a constitutional right if the violation is flagrant.  The Court held that the violations were not flagrant.

Parker’s case did contribute to some good changes in DCFS and the juvenile courts.  Shortly after Parker’s case, the legislature allowed some public access to juvenile court cases.  This is important because prior to that, everything in juvenile court was done in complete secrecy.

Hopefully, a case like Parker’s won’t happen again.  At the time, the State made several untruthful statements to the press to pain Parker’s parents in a bad light.  Because the proceedings were held in secret, the press had no ability to verify the accuracy of the statements.

Shortly before Parker’s case, I handled a somewhat similar case in juvenile court.  My client was accused of having a mental illness that caused her to pretend that her son was constantly sick.  I brought in a doctor who testified that the son had real illnesses and the mother wasn’t imagining them.

The juvenile court judge ignored the doctor who said the child was sick and followed the suggestion of the caseworker, DCFS and their doctor.  The son was put into foster care.

Putting him in foster care, much to the surprise of DCFS, did not cure him.  Over the next several months the son grew more and more ill.  Eventually, the son was returned to his mother.

The sad thing was that a mother-child relationship was unnecessarily interfered with.  It makes one wonder how many more times DCFS has made this type of tragic mistake.

Opening the juvenile courts to scrutiny by the press and public is a good thing.

The Utah Court of Appeals has sustained a trial court decision throwing out a wrongful death lawsuit against the Utah Department of Transportation.  The full opinion can be found here.

The case arose on January 27, 2007 when Rayn Ewing was killed in a car accident.  Her parents hired Siegfried and Jensen to represent her (It’s not clear to me exactly what happened but it looks like Siegfried and Jensen may have associated with Parker & McConkie to litigate the case.  P & M frequently litigates cases that S & J doesn’t want to litigate).

Whenever a claim is brought against a governmental entity there are several hoops that must be jumped through.  First, the claimant must file a notice of claim.  The notice of claim must contain certain information and be addressed to the correct governmental entity.  This was done for the Ewings on December 11, 2007.  Because it was done within a year, it was timely.

The next step is that UDOT is supposed to respond to the notice of claim.  Because governmental entities rarely, if ever, respond to notices of claim, they are deemed to have denied the notice if no response is made by the governmental entity within 60 days.  A lawsuit must then be filed within one year of the denial.

In the Ewing case, that was done timely on June 10, 2008.  This is when things started to fall apart for the Ewings.  UDOT pointed out that the Ewings filed in the wrong court.  When the Ewing’s attorneys recognized this, they agreed to dismiss the case without prejudice (in other words, they were allowed to refile the case in another court).  The dismissal was filed on September 4, 2008.

The attorneys then refiled the case in the right court on February 12, 2009.  UDOT asked the judge to dismiss the lawsuit because the statute of limitations had run.  Judge Fratto, the trial court judge, agreed and dismissed the case.

The Court of Appeals agreed with Judge Fratto.  Here is their logic.

The statute of limitations on the case ran on February 9, 2009. That was exactly one year after the notice of claim was deemed denied or one year and 60 days after the notice of claim was made.  Because the statute of limitations ran on February 9, 2009, they were late when the filed on February 12, 2009.  With the statute of limitations, it doesn’t matter how late your are, even one day is fatal.

The attorneys for the Ewings pointed out that when a case is dismissed without prejudice, a statute, commonly referred to as the “savings clause,” allows it to be filed up to one year after the date of dismissal.  The Court of Appeals agreed, but pointed out that a long line of cases have held that the one year “savings clause” only comes into play if the original statute of limitations had run previous to the dismissal.

Let me explain that another way.  Because the statute of limitations ran on February 9, 2009, the statute of limitations was not affected by any dismissal prior to that date.  If the dismissal had occurred on February 9 2009 at 10:00 a.m., the statute of limitations would still run on February 9, 2009 at midnight.

If, however, the dismissal happened on February 10, 2009, the statute of limitations would be extended to February 10, 2010.

This is a very weird result and doesn’t make any sense from a public policy point of view.  It is the law, however, and attorneys must always be careful when a case is dismissed without prejudice.

I’m sorry that the Ewing’s lost their right to bring the case following the death of their daughter.

Senator Adams R-Layton has sponsored SB150.  It aims to grant immunity to hospitals who knowingly hire bad doctors and then hide that fact from patients.

A little background might help.  Traditionally, employers have always been liable for the negligence of their employees.  If a UPS delivery truck gets in a crash due to the negligence of the driver, both the driver and UPS are liable.

In order to escape liability for the negligence of doctors, many hospitals have decided not to hire doctors as employees.  Instead, they hire them as independent contractors.  The law for independent contractors is different.  The law for independent contractors is that the company who hires the independent contractor is only liable for the negligence of the contractor if the company doing the hiring had reason to know that the contractor was dangerous.  In that event, both the contractor and the hiring company are liable for the negligence of the contractor.

Under this long standing law, hospitals have always been liable when they knowingly hire bad doctors.  For short, many people call this negligent credentialing.  In fact, many Utah cases have been tried and won under that legal theory in the past.

Recently, St. Mark’s hospital decided to challenge that long standing law.  The hospital claimed that the legislature had abolished liability of hospitals for knowingly hiring bad doctors.

In May 2010, the Utah Supreme Court published its opinion on the case.  Here is a link to that opinion.  The Supreme Court divided its decision into three sections.  They were entitled:

“I.  THE PLAIN LANGUAGENT OF UTAH CODE SECTION 58-13-5 DOES DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS”

“II. THE PLAIN LANGUAGE OF UTAH CODE SECTION 58-13-4 DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS”

“III. THE PLAIN LANGUAGE OF UTAH CODE SECTION 26-25-1 DOES NOT BAR NEGLIGENT CREDENTIALING CLAIMS”

Now comes the deception.  In an article in City Weekly, Senator Adams is quoted as saying, “I think this is a clear case of [the courts] legislating from the bench” and then added that health care will increase because hospitals will be forced to buy additional insurance that they weren’t required to purchase before the May 2010 decision.

That is an outright deception.  The Supreme Court did not legislate from the bench.  It did not create a new cause of action in Utah.  It merely recognized a long standing rule of law and analyzed whether the legislature had abolished it.  The Supreme Court determined that no legislation had been passed to immunize hospitals for knowingly hiring bad doctors.

This brings us to the final issue.  Should hospitals be immunized for knowingly hiring bad doctors?

 Dave Gessel, vice president of government affairs for the Utah Hospital Association, claims that hospitals need immunity.  He claims that many hospitals have no choice but to hire doctors that they know are not safe.  If they aren’t hired, some people might not be able to get medical care.

I disagree.  Hospitals shoudl not be given immunity for hiring bad doctors.  It’s hard to drive around town without seeing an ad about how great the medical care is at some hospital.  If the shortage of good doctors is so acute that hospitals are forced to hire dangerous doctors, those ads are an outright lie.

Under the current law, a hospital can protect itself from liability by disclosing to patients that it has hired dangerous doctors and give details on why the doctor is dangerous.  The patient can then choose whether to seek medical care at that hospital or choose a different hospital.  If the patient chooses to seek care from the bad doctor, the hospital is off the hook.

I think that is a better alternative than allowing hospitals to advertise that their care is excellent and then grant them immunity for hiring dangerous doctors.

Since my last post, I’ve had a few people contact me about other articles in which conservatives question the Republican support for tort reform.

Ken Connor recently wrote:

“Ironically it is the Republican Party (of which this writer is presently an embarrassed member) that is often found leading the charge for “civil justice reform.” These self-proclaimed “defenders of the Constitution” have no use for the Seventh Amendment, which protects the right to trial by jury in civil cases. And they pay only lip service to the Ninth and Tenth Amendments, which are aimed at protecting the rights of the people and the states to make policy decisions for themselves without unauthorized interference from the Feds.

The most recent example of constitutional hypocrisy being put forward by the party of Lincoln comes from Reps. Phil Gingrey and Lamar Smith in the form of H.R. 5, or the HEALTH Act. Their bill is an affront to the Bill of Rights and would result in the imposition of a federally imposed, top-down, one-size-fits-all, special-interest driven emasculation of fundamental constitutional rights, turning victims of medical malpractice and dangerous drugs into constitutional eunuchs.”

Here’s an excerpt from a post by Andrew Cochran.

“Here are a set of reasons why Tea Partiers, Constitutional conservatives, Main Street Republicans and Blue Collars should vigorously oppose H.R. 5 and any federal law limiting medical malpractice lawsuits:

1. The Constitutional basis for medical malpractice tort reform is also the basis for ObamaCare, and both violate the 10th Amendment’s protections of states’ rights. When he introduced H.R. 5, Rep. Phil Gingrey cited the language of the Commerce Clause: of the Constitution. I wrote about the abuse of the Commerce Clause of the Constitution in separate posts on December 6, on December 14, and on January 4. Simply put, the pro-medmal-reform and pro-ObamaCare forces depend on the theory that the Commerce Clause trumps the protection of individual and states’ rights in the Bill of Rights. That’s a formula for a slide into dictatorship. And as I wrote on December 6, Founding Father George Mason foresaw the holes in the Constitution and argued against ratification of the Constitution without a Bill of Rights.

2. A better name for any such bill is the “Abortion Butchers & Sexual Abusers Civil Immunity Act of 2011.” If enacted, doctors who kill babies and their mothers (see the Gosnell case) could leave jail after their sentence is up, then stop by the bank to pick up their blood money and start over. Why would a pro-lifer (like me) ever want to limit the amount of money an abortion victim could take from killers and butchers in a civil suit?! And it even protects doctors who commit intentional torts, such as sexual abuse! The broad scope of H.R. 5 also protects bad drug and device companies which have been criminally prosecuted.

3. The bill does nothing to stop medical malpractice, which kills up to 100,000 Americans annually and injures up to ten times that number. The bill doesn’t improve hospital hygiene, medical records technology, or any other medical practice. Medical malpractice lawsuits can’t exist if there’s little or no medical malpractice.

4. We have a medical malpractice crisis, but not a medical liability crisis. The number of medical malpractice claims has been headed down – yes, DOWN – for years, down 15 percent from 1999 to 2008. The insurance industry’s own data reveals that the amount they’ve paid out for malpractice claims dropped by over 40% between 2002 and 2008, when adjusted for inflation. H.R. 5 is like fixing a flat tire by emptying the radiator. It misses the point and attacks a non-problem.

5. This bill would increase government spending, because those unable to hold wrongdoers accountable will become dependent on Medicare and Medicaid for payment of their medical costs. The taxpayers will be forced to pay for incompetent doctors and for drugmakers’ and medical device manufacturers’ faulty products.

6. Why would the GOP immunize industry groups which endorsed ObamaCare and enabled its enactment? The AMA and Big Pharma gave us ObamaCare’s unconstitutional mandate, budget-busting spending hikes, and huge tax increases. THANKS FOR NOTHING.

7. Medical malpractice today, religious liberty and gun rights tomorrow? There is no differentiation regarding medical malpractice lawsuits under the Constitution. This would be the same as capping damages in suits against schools firing Christian professors or limiting the size of gun clips.

8. The Founding Fathers were never for tort reform. Back in September, I offered to buy the best dinner in Washington to anyone to shows me just ONE pro-tort reform quote by any Founding Father. I’ve had no takers and I’m not worried, because none of them proposed limiting our 7th Amendment rights.”

You can find the full articles at these links:

http://www.christianpost.com/article/20110128/the-gops-selective-constitutionalism/

http://www.wvrecord.com/arguments/232923-their-view-tea-party-conversatives-should-oppose-medmal-limits

I’ve long maintained that true conservatives oppose tort reform.  Looks like I’m not the only one.

Since my last post, I’ve been contacted and pointed to some additional information on defensive medicine.

In the Journal Health Affairs, 29, no. 9 (2010): 1578-1584, authored by J. William Thomas^,, Erika C. Ziller and Deborah A. Thayer, they attempted to determine whether defensive medicine does take place and if so, how much could be saved.

Their study concluded that some physicians do practice defensive medicine.  If Malpractice premiums could be reduced by 10%, they estimate that the cost of health care could be reduced by 0.132 percent.  If malpractice premiums could be reduced by 30 percent, the cost of health care could be reduced by0 .4%.  Both of these cost saving estimates would occur because doctors would be less likely to practice defensive medicine.

In other words, if tort reform measures could reduce malpractice costs by 30 percent, a $1,000 per month health insurance plan could be reduced to $996.00 per month. 

While we hear a lot about tort reform in the news and from some politicians, we shouldn’t expect tort reform to have much of an effect on the cost of health care.

One of the arguments for “tort reform” is that lawsuits increase the cost of medical care.  That is certainly true.  The next question is: “How much does the price go up?”

Numerous economists have studied this issue.  If one looks at malpractice insurance paid by doctors, the answer is less than one penny for every dollar spent on medical care.  That isn’t too bad.  When we compare what we pay for auto insurance and homeowners insurance, malpractice insurance is pretty reasonable.

Some doctors complain that the malpractice insurance premiums are outrageous.  For some doctors that may be true, especially if they have a history of claims.  On average, however, the cost is less than 1% of gross receipts.  While it may sound outrageous that a clinic is paying $100,000 in malpractice insurance per year, when one considers that the clinic is doing more than $10,000,000 in business, the $100,000 doesn’t seem quite as high.

The next argument is that defensive medicine increases the cost significantly.  Many claim that defensive medicine may increase the cost by more than 10%.  What is defensive medicine?  Defensive medicine is the practice of ordering unnecessary tests and procedures to protect a doctor from malpractice claims.

Clark Newhall is a physician and attorney.  He practices law and medicine in Salt Lake City.  In a recent letter to the editor, published in the Journal of the American Heart Association, Clark Newhall questions the truthfulness of these claims.

He explains that by definition, any doctor who practices defensive medicine without disclosing as much to the patient is committing malpractice.  Doctors are ethically bound to practice medicine in a way that is in the best interest of the patient.  A doctor may not order tests and procedures whose only benefit is to the doctor.

Next time a doctor claims that defensive medicine is driving up the cost of health care, the first question to that doctor should be, do you personally practice defensive medicine?  If not, do you have personal knowledge of colleagues who practice defensive medicine?  If yes, have you turned them in for unethical behavior?

Normally, we expect that the court house doors are open to everyone.  The courts are established to help us resolve disputes and to right wrongs.  They don’t discriminate against people based on race, religion, gender or age.  A recent Supreme Court decision proves that assumption wrong.

In the case, a pilot named Ostler was flying a private plane with several passengers.  The plane crashed through pilot error and everyone in the plane was killed.  One of the passengers had a girlfiend named Melissa Walker.  At the time of the crash, the Walker did not know she was pregnant.  Later she discovered she was pregnant and gave birth to a boy.  DNA testing proved that the boy was the son of one of the passengers.

Through his guardian, the child filed a wrongful death lawsuit.  He sought to recover money to help in his upbringing because his father had been killed.  The boy filed the case when he was about four years old.

The trial court threw the case out because the case had not been filed on time.  The Supreme Court agreed.  So when was the case supposed to filed?  The Supreme Court said it should have been filed before the boy was born.  Only problem is that an unborn child cannot file a claim.  The result is that the boy never had the right to file a claim for the wrongful death of his father.  Legally, he was completely denied a right given to the other passengers.  Why?  Because of his age.