Medical Malpractice

Defense lawyers have successfully fended off medical negligence cases focused on bystanders' emotional distress at seeing a loved one die - until Markus B. Willoughby, of Willoughby Law Firm, representing the sister and daughter of a malpractice victim, won a jury verdict that survived an appellate challenge in such a situation.

California's $250,000 cap on non-economic damages in medical malpractice cases often keeps lawyers from litigating those claims because the award is too small to make the task economically viable. Typically the $250,000 sum must be split among a victim's heirs. "But I found a way to stack several $250,000 claims and end up with an aggregate award that is much greater," Willoughby said.

In the first case of its kind, he did it by convincing an Alameda County Superior Court jury to award $200,000 to the sister and $175,000 to the daughter after they witnessed Madeline Knox's death in a hospital medical-surgical unit.

The case could serve as a blueprint for lawyers seeking to navigate negligent infliction of emotional distress claims. Keys v. Alta Bates Summit Medical Center, 235 Cal. App.4th 484 (1st Dist. Ct. of App., March 25, 2015).

Following thyroid surgery, Knox was in obvious paid and had trouble breathing, the plaintiffs said. Both plaintiffs said they asked a nurse to call Knox's surgeon. He suctioned her throat, then removed bandages and began removing sutures on her incision to remove pressure. Knox stopped breathing. Officials called a code blue but Knox was without a pulse for minutes, suffered a permanent brain injury and died two weeks later after life support was withdrawn.

The sister and daughter sued for negligent infliction of emotional distress. The hospital argued that for such claims to succeed, plaintiffs must see or perceive the injury as it happens.

The defense contended that the plaintiffs could not see a hematoma that developed in Knox's throat, occluding her airway. But Willoughby successfully countered that his clients well knew that Knox was suffering because of the hospital staff's failure to take appropriate action.

The negligence of the defendant was failing to respond to an obvious need for immediate medical care, the appellate court agreed.

"These cases of loved ones witnessing medical errors are more common than people may think," Willoughby said. Since the Keys opinion appeared, he said he's seen at least three cases where lawyers could have made what are known as bystander NIED claims but did not do so. "They don't know how, but I am slowly getting the word out," he said.

Willoughby said he was recently called in to take over a case in Los Angeles in which a man lost his leg due to negligent hospital care. "I have the victim's claim and the wife's consortium claim, but that's it," he said.

"It would have been a great NIED case because the man's children visited the hospital daily and kept asking what was wrong and why his leg hurt and wasn't getting better," he said. "They saw it all. But the lawyers who filed the case originally did not submit any bystander NIED claims. They didn't know they had one. I could have stacked at least three, but by the time I saw the case, the statute of limitations had expired."

Willoughby called the $250,000 medical malpractice cap "draconian" and the one-year malpractice statute of limitations an unfair legislative gift to the medical profession. "It's very gratifying to contribute to ways in California we can enhance our remedies," he said.