MAN CLAIMS EMOTIONAL DISTRESS AFTER BRINGING DAUGHTER TO ER
Medical malpractice lawyers normally assert claims that their clients were injured by a botched medical procedure. Or maybe by a failure to diagnose a disease on time. But there are other types of claims that malpractice lawyers bring. Here is a summary of a court decision involving one such case.
At about 8:30 p.m. on a September evening, J.D. found his seventeen-year-old daughter, whom we’ll call Vicki, unconscious. She was not breathing. J.D. told Vicki’s friend to call 911. The First Aid Squad was sent at 8:48 p.m. Vicki resumed breathing as the paramedics arrived. She was placed in the back of the ambulance. The ambulance took her to Overlook Hospital. They arrived at Overlook at 9:24 p.m.
On the way to the hospital, Vicki told the paramedics that her father choked her. She said she was afraid of him. After they arrived, Vicki was removed from the ambulance. J.D. was placed in a separate room. He received medical attention for chest pains. When he asked for his daughter, he was told he was not allowed to see her. J.D. became “very upset.” He feared Vicki had died.
A police officer told J.D. he no longer had custody of his daughter.
Father Threatened with Arrest.
The officer escorted J.D. to J.D.’s room and told him if he left the room he would be arrested. J.D. later claimed he was not allowed to leave the room, until he was discharged at approximately 4:00 a.m.
The Overlook emergency record states that Vicki’s time of triage was 9:43 p.m. When Vicki was assessed at 9:45, her “chief complaint” was that her father tried to choke her.
J.D.’s son, a police officer, told J.D. that Vicki had claimed that J.D. had choked her. J.D. was interviewed by state social workers at approximately 3:00 a.m. at about 9:00 a.m., J.D. received a call from Overlook. The hospital told J.D. that the social workers had cleared him of abuse.
Lawsuit Filed by Malpractice lawyers.
J.D. hired malpractice lawyers to sue Overlook. He claimed to have suffered emotional distress from the incident.
Overlook, pursuant to state law, demanded that J.D. provide it with an affidavit of merit (AOM). An AOM is an affidavit from a non-involved physician. It must state that the care exhibited in the incident fell outside acceptable medical standards.
J.D. failed to provide an AOM. Overlook then filed a motion to dismiss the claim against it, based upon J.D.’s failure to provide an AOM. The trial judge granted Overlook’s motion, and dismissed the lawsuit against Overlook.
Accordingly, J.D. malpractice lawyers appealed. They argued that the AOM requirement did not apply. J.D. was asserting a claim for intentional or negligent infliction of emotional distress, not a claim for medical malpractice.
But the appeals judges ruled against J.D. They followed a previous court ruling, requiring an AOM to be provided whenever three requirements were met. First, if the party suing asked for compensation for personal injuries. J.D. was asking for such compensation.
Second, if the lawsuit is for “malpractice or negligence [carelessness].” J.D. was claiming such carelessness.
Third, if the care exhibited in the treatment fell outside acceptable medical standards.
Therefore, the malpractice lawyers argued that the applicable standard of care that was violated was not provided by the medical profession. Rather, they claimed, it was provided by a state law, which provides:
“Any physician examining … any child … is empowered to take the … child into protective custody when the child has suffered serious physical injury … and the most probable inference from the medical and factual information supplied … is that the … injuries were inflicted … by a person into whose custody the child would normally be returned.”
Accordingly, the malpractice lawyers argued, the affidavit of merit requirement didn’t apply.
Appeals Court Rules.
In their ruling, the judges disagreed. They ruled that the determination as to what is “the most probable inference from the medical and factual information supplied” requires the exercise of medical judgment. Thus, an AOM was required.
I disagree with the judges. The AOM requirement is supposed to prevent frivolous lawsuits for medical malpractice. It was never intended to apply to claims about carelessness in detecting child abuse. I’m not saying that J.D. was necessarily justified in his claims. It may well be that the doctors acted reasonably. But J.D. should have been allowed his day in court.
That said, this case illustrates why it important to hire experienced malpractice lawyers. Whenever there is any doubt as to whether an AOM is required, one should be obtained.