You can’t make this stuff up. A man went to the ER with seizures. While he was on the exam table, his dad brought him a cup of coffee. You guessed it – he had another seizure and spilled the coffee on himself. This caused second and third degree burns, which, according to the court opinion, were not diagnosed until three days later. After a plastic surgery consultation, the patient was discharged with instructions to follow up in 1 -2 weeks.

The inevitable negligence and medical malpractice lawsuit resulted in a confusing verdict. The jury rejected the claim that the hospital was negligent for permitting the man to have hot coffee. The jury did find malpractice by the hospital in failing to take immediate measures in response to the coffee spill, and in discharging the patient prematurely. The jury found that the premature discharge was not the proximate cause of the claimed injuries. As to the failure to promptly treat the burns, the jury assigned 90% of the fault to the plaintiff, and 10% to the hospital.

The Appellate Division, Third Department,  refused to disturb the jury’s finding that the premature discharge was not the proximate cause of any injury:

 . . . there was ample other evidence from which the jury could reasonably have found that the severity of plaintiff’s pain was caused by the initial injury rather than the premature discharge, and that his pain was not increased by the timing of his admission to the burn center a week after his discharge . . . Thus, granting defendant the benefit of every favorable inference that can reasonably be drawn from the trial evidence, as we must . . . we cannot say that “the evidence so preponderated in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence . . .

As for the rest of it, the majority panel ordered a new trial on damages in the interest of justice. The appeals court could not figure out how the jury arrived at its $25,000.00 award. Two concurring justices urged that, in light of the finding of no negligence in permitting the coffee in the first place, the jury should be specifically instructed that the hospital is liable only for any exacerbation of the injuries and additional pain caused by lapses in the treatment given while the patient was in the hospital.

Vallone v Saratoga Hospital (July 14, 2016)


ARS § 12-820.02(A)(1) says that a public entity cannot be liable for failure to make an arrest unless it was grossly negligent. Victims of the “Baseline Killer” sued the City of Phoenix. They claimed that the police department was grossly negligent in failing to conduct timely DNA testing on samples taken from an earlier victim. The Superior Court granted judgment in favor of the City.

The Court of Appeals, Division 1, affirmed. The COA held that the purpose of the statute was not to affirmatively impose a duty, but to immunize public entities against tort liability to which they were generally subject. The COA found that police departments do not have a duty that would support tort liability unless there is a special relationship, such as when a person calls 911 and is assured that help is on the way.

Hogue v Phoenix (July 14, 2016).


OCR put out an end-of-Monday email blast touting new guidance for covered entities and business associates on ransomware. Ransomware is malware that threatens to permanently encrypt your files or otherwise make them permanently unusable unless a payment is received. OCR says there is an upswing in these attacks in the healthcare sector. Most infections occur when a user opens an email attachment or clicks on a link in a bogus email.

The guidance document points out that general compliance with the Security Rule will offer protection against ransomware. A couple of things are mentioned that, while obvious, are noteworthy.

1) Regular backup greatly reduces vulnerability to ransomware extortion.

2) Encryption applied at the drive level on a device such as a laptop makes the EPHI* protected when the device is powered off and disconnected from the internet. So if it is lost or stolen in that condition, no breach. But if a hack occurs after the encryption key is applied while the device is in active use, you may well have a breach.

You can obtain the complete guidance document here.


*Electronic protected health information.


The wrongful death action against the State arose from the death of a motorist in a collision with a vehicle chased by police at high speed. The plaintiffs were the parents of the decedent. The jury pegged the compensatory damages at $30 million, and found the State 5% at fault.

The State moved for a new trial on damages or remittitur on the grounds that plaintiffs’ counsel made improper send-a-message type arguments, and that the award was clearly excessive. The Superior Court granted a remittitur reducing the damages to $10 million, resulting in a $500K obligation on the State. The Superior Court explained that “based on the evidence presented at trial and the damages recoverable . . . the thirty million dollar award was excessive.”

The Court of Appeals, Division One, reversed on appeal and instructed the Superior Court to enter judgment on the verdict. The COA noted that if a verdict is the result of passion or prejudice, the proper remedy is a new trial. A remittitur is appropriate where the verdict reflects an exaggerated measurement of damages, but not when it is shockingly or flagrantly outrageous.

The COA rejected the notion that a canvass of damages awarded in similar cases was an appropriate standard for remittitur: “each jury is required to give each litigant individual consideration”. The court further noted that the statutory measure of wrongful death damages- “fair and just” – was quite broad, and could not be constrained by an “unarticulated subjective concept of reasonableness.” The COA sends this message to the bench and bar:

This case, like most wrongful death cases, did not permit precise measurement of damages. The statutory measure of damages wasnot related to any demonstrated economic loss, and we read thelegislature’s commitment of damages to the jury’s sense of justice as a broadappeal to the jury’s conscience. We do not know what evidence the court evaluated to arrive at its conclusion that the jury award was “on the highside,” nor how it arrived at the $10 million sum.

*                               *                         *

Because the court found no concrete defect in the jury’s award, we reverse its remittitur and remand for entry of judgment on the verdict.

Ahmad v State (July 12, 2016)



A patient with a dreadful combination of serious conditions, requiring a variety of interventions, wound up with a stage IV pressure ulcer while in the ICU.   Litigation against the hospital ensued.


Expert qualification and disclosure.

Well before the deadline for initial expert disclosure, plaintiffs designated a wound care nurse as their sole expert on standard of care, causation and prognosis. After discovery was closed, the hospital won summary judgment on the grounds that plaintiffs’ expert was disqualified under ARS § 12-2604. The Court of Appeals agreed that wound care nursing is a specialty which did not match that of the ICU nurses, who were either generalists or ICU specialists. Still, all was not lost for the plaintiffs, because the COA held that they should have been granted time to designate a new expert. If the hospital had objected to the preliminary expert opinion as provided by ARS § 12-2603, that statute would have required the Superior Court to allow a reasonable time to cure the deficiency.

It appears from the opinion that plaintiffs invoked the “never event” status of the bed sore as an alternative ground for relief, but the COA found that argument was not sufficiently developed.

PRACTICE NOTE: Plaintiffs’ counsel did not procrastinate; the initial expert disclosure was provided early. This opened an opportunity to fix what otherwise might be a big problem. This lesson transfers to almost every aspect of legal practice.


Discovery of prior adverse events.

The hospital sought review of the Superior Court’s ruling directing disclosure of similar incidents of patients developing decubitus ulcers in the ICU in the 4 years before plaintiff’s admission. The COA held that redaction would address the privacy rights of the patients involved. The COA rejected the hospital’s contention that the materials were protected by various statutes governing quality assurance/peer review materials. The COA reasoned that the medical records themselves were not covered by those statutes. The fact that the hospital might have to refer to protected material in order to identify the medical records subject to redaction and disclosure did not bring the medical records themselves within the statutory protection.

The COA held that the records of prior adverse events could uncover evidence of habit or routine, and that since this ruling was directled only to discovery, not admissibility at trial, the relevancy standard was loose.

Rasor v Northwest Medical Center (May 17, 2016)