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LOSS OF CONSORTIUM
By Kevin McGillicuddy - Parker & Associates

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SUPREME COURT RULES NO LOSS OF CONSORTIUM CLAIM FOR PARENTS OF INJURED CHILD

ROBERTS v. WILLIAMSON, 111 S.W.3d 113 (Tex. 2003)

FACTS – The day after she was born, Courtnie Williamson began suffering from severe acidosis, which can cause damage to the heart and brain. The attending physician called on Dr. Karen Roberts, a consulting pediatrician at Laird Memorial Hospital in Kilgore, and advised her that Courtnie was in respiratory distress. When Dr. Roberts arrived at the hospital, she placed Courtnie on a pediatric ventilator, but it was not functioning properly and Courtnie did not receive oxygen for several minutes. About an hour after her arrival, a colleague suggested to Dr. Roberts that sodium bicarbonate should be given to Courtnie to counteract her worsening acidosis. Dr. Roberts consulted with a neonatologist in Shreveport, and about 2 hours after it was suggested, administered the sodium bicarbonate. Shortly thereafter Courtnie was transferred to another hospital in Shreveport. Courtnie now has a permanent shunt implanted in her skull to drain fluids to her abdomen, and also suffers from a weakened left side, needs braces to walk, has significant scarring, and is developmentally delayed.

CASE HISTORY – Courtnie’s parents sued Dr. Roberts, individually and on behalf of their daughter. They alleged that Courtnie was injured by the malfunctioning ventilator, the delay in administering sodium bicarbonate, and the doctor’s failure to immediately transfer Courtnie to a better-equipped hospital. After a finding that Dr. Roberts (among other defendants) was negligent in her care for Courtnie, the jury awarded $3,010,001 in damages, including $75,000 to the parents for past loss of filial consortium, and $1 for future loss. The trial court rendered judgment on this verdict. Dr. Roberts appealed, arguing that Texas law does not permit a parent to recover for loss of consortium for non-fatal injuries to a child. There were other bases for appeal, not only by Dr. Roberts, but also by the Williamsons. However those will not be discussed here. The court of appeals ruled that Courtnie Williamson’s parents were entitled to recover for loss of consortium and affirmed the judgment against her.

HOLDING – Dr. Roberts appealed, and the Texas Supreme Court reviews prior cases involving a child’s claim for loss of parental consortium when a parent suffers a serious, permanent and disabling injury. In Reagan v. Vaughn, 804 S.W.2d 463 (Tex. 1990), the Court held that a child’s relationship with a parent was similar to that of one spouse with another. The Court noted in Reagan that spousal loss of consortium claims had previously been recognized. The Court also noted the particularly vulnerable and dependent role of a child and the great harm that might result to a child who has been deprived of a parent’s love, care, companionship and guidance. The Supreme Court writes that the court of appeals held that since the Supreme Court had previously emphasized in Reagan that the parent-child relationship deserved special protection, the Court must have intended parents to have consortium rights as well. The Court notes that it had not previously addressed this issue. The Court concludes that a parent-child relationship is not reciprocal like husband and wife, and that the child needs special protection that parents do not require. The Court states that not all consequential damages are recoverable, as it has previously held that siblings and stepparents cannot recover for loss of consortium, and the Court declines to extend such rights to parents in non-fatal cases. Recovery for loss of affection and society of a child is permitted to parents in wrongful death actions, but when a child survives, the child’s own cause of action against the tortfeasor survives, and there is no need in the Court’s opinion to recognize actions by other family members in order to prevent the tortfeasors from escaping liability. The Court concludes that there is no compelling social policy that impels it to recognize consortium actions by parents.

SIGNIFICANCE – This is a case of first impression by the Supreme Court and is somewhat surprising. Three judges dissented and would have allowed a loss of consortium claim by parents, arguing that this case creates an anomaly in the common law, where loss of consortium claims for death are permitted but not for serious and permanent injuries. The dissenters also note that prior cases have permitted adult children to claim loss of consortium for death or serious injury to a parent, which runs counter to the majority’s argument that only children need the protection of loss of consortium claims - because of their presumed dependent status. The dissent also provides a handy discussion of prior decisions extending loss of consortium claims to various family members, and therefore is a good reference to the state of the law in this area.

COURT OF APPEALS RULES ON DEFAMATION CLAIM BY WC DOCTOR

PISHARODI v. BARRASH, 116 S.W.3d 858 (Corpus Christi-Edinburg 2003, pet. filed)

FACTS – Juan Escobedo was a workers’ compensation claimant (his claim was one to be presented to the U.S. Department of Labor). A neurosurgeon, Dr. Madhaven Pisharodi, recommended extensive surgery to correct his condition. The carrier sought three other medical opinions, and two of the doctors, one of whom was Dr. Martin Barrash, recommended a more limited procedure than the one ultimately done by Dr. Pisharodi. The carrier refused the surgery recommended by Dr. Pisharodi, but consented to an alternative surgery. After receiving the carrier’s consent, Dr. Pisharodi performed surgery and then recommended additional surgery and treatment. The carrier forwarded his records to Dr. Barrash, along with Dr. Pisharodi’s bills, and through its attorney asked that Dr. Barrash supply his “thoughts and opinions regarding the medical course undergone by Mr. Escobedo.” The carrier also asked Dr. Barrash to opine on whether the surgery performed exceeded the treatment to which it had consented. Dr. Barrash responded to the carrier through its attorney. Among a number of other things, Dr. Barrash stated that Dr. Pisharodi “disregarded everything that was discussed with him and recommended and just went ahead and did a poorly executed, improperly done operation.” In addition, Dr. Barrash opined that the surgery was “totally unreasonable and substantially failed to meet the professional, recognized standards of that which was allowable and authorized.” Dr. Barrash also stated that Dr. Pisharodi’s charges amounted to “gouging,’ and concluded by stating that “In my opinion, Dr. Pisharodi has assaulted this man under the guise of medical treatment.”

CASE HISTORY – Dr. Pisharodi sued Dr. Barrash and Houston Neurosurgical Associates, P.A., a group Dr. Barrash practices with. Dr. Pisharodi claimed that Dr. Barrash’s comments in the letter were libelous. Dr. Barrash moved for summary judgment, arguing that the statements in the letter were pure expressions of opinion and made in connection with a judicial proceeding, and therefore not actionable. Dr. Pisharodi answered the motion for summary judgment, arguing that the statements in the letter were not pure expressions of opinion and that Dr. Barrash did not show that the letter was written in contemplation of a judicial proceeding. Dr. Pisharodi further argued that even if the letter was written for a judicial proceeding, a question of fact remains whether it was published outside that privileged context. The trial court granted summary judgment for Dr. Barrash, holding that the statements made were pure opinions, and their publication to examiners working at the U.S. Department of Labor could not be the basis of a libel claim because that occurred in connection with a quasi-judicial proceeding and was privileged.

HOLDING – Dr. Pisharodi appealed, and the court of appeals holds that whether or not statements are defamatory and actionable depends on a reasonable person’s perception of the entire publication. The court of appeals states that the letter, taken as a whole, is capable of defamatory effect. It was “not only a scathing evaluation of Dr. Pisharodi’s performance but an accusation that his actions in treating Escobedo amounted to nefarious criminal conduct, namely, assault.” To charge someone falsely with a crime that may be punished by imprisonment is libel per se. Although Dr. Barrash made his statements in the context of professional opinion, “such hedging does not mitigate the defamatory impact of a criminal accusation.” Therefore, the court of appeals holds that the trial court erred in holding that the letter was not defamatory. The court of appeals goes on to hold that the statements were made in connection to a judicial proceeding and were absolutely privileged. However, there was also some evidence that Dr. Barrash’s letter was passed on to persons other than the hearing examiner and the parties to the claim (there is no indication in the opinion that Dr. Barrash was responsible for circulating the letter). Therefore, the court of appeals reverses the judgment in favor of Dr. Barrash and remands the case for trial.

SIGNIFICANCE – It is not unusual for a doctor to write a letter critiquing the medical treatment of another doctor. This is frequently done in the context of carrier-requested peer reviews or required medical examinations. And sometimes treating doctors, attorneys and others write similarly strident letters on a number of subjects. Although this case holds that otherwise libelous statements in such letters are absolutely protected if made in connection with a quasi-judicial proceeding, they are not protected if distributed to parties outside the proceeding. Therefore, such opinions in cases involving claims under the Texas WC Act should not be circulated by anyone, not only because of issues involving libel, but also due to the confidentiality provisions of the Texas WC Act.


Submitted by:

J.T. Parker & Associates, L.L.C.

1341 W. Mockingbird Ln., Suite 300W

Dallas, TX 75247

214.631.1000

214.631.3700 Fax

www.parkerclaims.com

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