“Stay-at-home” plaintiff in non-caps state binds caps-state defendant to home advantage in lengthy med mal suit

by • November 1, 2007 • UncategorizedComments Off on “Stay-at-home” plaintiff in non-caps state binds caps-state defendant to home advantage in lengthy med mal suit1230

By Dan Clifford, publisher

© 2007 The Medical-Legal News

A Kentucky plaintiff has been successful in keeping litigation “at home” to avoid med mal tort caps imposed by Indiana law.

Jonathan Elder, a 6-year-old and a Kentucky resident, was treated at Perry County Hospital in Indiana in 1999. The hospital was about three miles from Jonathan’s home across the state line. Jonathan was eventually moved to another Indiana hospital where an infection, linked to care at Perry, could not be contained. Jonathan’s parents sued in Kentucky after his death from the infection.

Several years of complicated litigation followed Jonathan’s death, largely a volley of motions and appeals fighting about which jurisdiction was the proper venue for the suit. The defendants preferred Indiana, a caps state, while the decedent’s parents preferred Kentucky, a non-caps state. See Elder v. Perry County Hospital, 2005-CA-000591-MR.

In both 2004 and in 2005, a Kentucky circuit court ruled in favor of moving the suit to Indiana based on the forum non conviens (inconvenient forum) doctrine.

The Kentucky Court of Appeals eventually heard the case and remanded it to the circuit court. The higher court held that the forum non conviens doctrine had been misapplied.

The court noted that the Indiana hospital had advertised in, and had sought business from, Kentucky, and had sought the “benefits and protections” of Kentucky law. The court cited Volkswagen v. Woodson, U.S., 1980, among others. The court noted that Kentucky’s laws are “designed primarily to protect its own citizens” and quoted the state constitution as saying “The General Assembly [Kentucky legislature] shall have no power to limit the amount to be recovered for injuries resulting in death….”

Using Gulf Oil v. Gilbert, U.S. 1947, the court explained when forum non conviens can be used and “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed….” The court noted other geographic and financial hardships on the plaintiffs if litigation were to occur in Indiana. The state high court cited Piper v. Reno, U.S., 1981, and Norwood v. Kirkpatrick, U.S. 1955, to further explain the circuit court’s misapplication of forum non conviens. The high court concluded that substantive law (the caps or lack of caps) should not be given “substantial weight” in such cases, and argued that forum non conviens delays litigation, citingU.S. v. National City Lines, U.S., 1948.

Jay Vaughn, an attorney with Busald Funk Zevely in Florence, Ky., said about the ruling, “This is a very important decision for all Kentucky citizens who sometimes have no choice but to receive medical care in a bordering state, such as Indiana or Ohio (both of which have enacted some version of tort reform capping damages). Although the Elder opinion still leaves the forum non conviens defense to the discretion of the trial court, at least now Kentucky citizens who are injured as a result of out-of-state medical negligence have a good-faith basis for filing their actions in Kentucky and arguing that Kentucky substantive law should apply.”

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