KIDNEY TRANSPLANT

Family in kidney case could sue UT

Medical staff negligence would be claim

8/24/2012

The family at the center of a botched transplant surgery could sue the University of Toledo on a negligence claim, according to attorneys practicing medical malpractice, but any lawsuit would have to be decided in the state Court of Claims and not by a jury.

University of Toledo Medical Center officials acknowledged this week that "human error" led to ruining a kidney removed from a living donor. The organ was slated to be transplanted into the donor's sister when it became unusable, resulting in the suspension of the living kidney transplant program at the medical center.

Toledo lawyer Gary Osborne, who is not involved in the case, said that the known facts of the failed surgery indicate negligence on the part of the staff involved. A medical malpractice lawyer for 30 years, Mr. Osborne said the family could be awarded financial damages if they sued but that the case would have restrictions because UTMC, the former Medical College of Ohio, is a state institution.

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Namely, the case would be filed in the Court of Claims of Ohio and be heard by an appointed judge, he said. Additionally, the medical staff involved in the alleged negligence would not be named as parties to the lawsuit because state employees are given civil immunity.

"I suspect that this is a case that they'll want to settle as quickly as they can," Mr. Osborne said. "But ultimately, any award will depend on the harm that is sustained. That's the unknown here, the harm that [the intended recipient] may encounter."

According to the state Court of Claims Web site, the court was created in 1975 to permit "actions to be brought against the state which were previously barred by the doctrine of sovereign immunity."

Justice Andy Douglas, who is retired from the Ohio Supreme Court, said in his opinion without specifically studying the corporate entity, that UTMC and the college became one entity when they merged and therefore, the hospital became a state agency subject to being sued. The university and the hospital merged July 1, 2006.

Justice Douglas said a better path for the plaintiffs would be to sue UTMC in both the Court of Claims and state court on the chance that the claims judge would rule that the hospital doesn't have immunity under the state law.

That course of action, he said, would satisfy the statute of limitations required for filing the lawsuit in state court.

"If I were doing this, I would file in both courts," he said. "Just to be sure because you don't know what the court of claims may rule."

Mr. Osborne also said that the case would be bifurcated, or split into two parts. During the first phase, the merits of the case would be argued to the judge, who would decide if the state entity should be held liable. If so, a second phase would be argued to determine what, if any, monetary damages should be awarded.

Not only does each phase potentially take months to even years, but the plaintiff in the suit likely will be impacted by caps on the amount of money they can receive, Mr. Osborne said.

According to state law, while there is no limit on compensatory damages that represent economic loss in medical claims, noneconomic loss can not exceed $250,000, unless there is a "catastrophic injury" in which the cap rises to $500,000.

A "catastrophic injury" is defined as "permanent and substantial deformity, loss of use of limb, loss of bodily organ system, or permanent physical functional injury that prevents one from being able to independently care for self or perform life-sustaining activities."

Justice Douglas has spoken out against caps on claims in the past. A Toledo native still active in the legal arena, he said the recent Toledo case had unusual facts but was not atypical in that it is one of many medical errors that occur frequently.

"This is not something with which I am unfamiliar," he said when questioned about how caps could impact a lawsuit regarding the kidney surgery. "My experience tells me that difficult facts present difficult cases, and this is why there are circumstances where it would appear that the caps on damages would bring about an unfair result, particularly given the facts that two lives have been forever altered."

A Harvard Medical School study published in 2006 concluded that incidents of malpractice occur more often than thought. When analyzing medical malpractice in New York state, the study concluded that claims were paid for one in every 16 "adverse events" and that many times patients were not aware that they were "subjected to bad or incompetent medical services."

Among the largest hurdles for someone suing the University of Toledo is being directed to a court that does not permit trial by jury, said Allen Schulman, a Canton, Ohio, civil attorney practicing medical malpractice for 40 years.

And because of caps, not only are parties not often fully compensated but often cases aren't brought forward because the expense of trying it is more significant than the possible payout.

Mr. Schulman added that also lost because of caps in damages is the incentive for facilities to change practices and create policies to make for safer procedures.

"It's almost as if a Boeing 747 crashed every day. If that happened, there's no question that the government would say this is unacceptable. Unfortunately, in the medical side of the occasion, it's accepted," he said. "…The idea that we're going to then cap any damages takes away that incentive.

"You can't return people to their past selves," he added. "But under the law, compensation is the only thing we can do."

Contact Erica Blake at: eblake@theblade.com or 419-213-2134.