RECENT MEDICAL MALPRACTICE CASE LAW OF NOTE
The unpublished decision of Tello -vs- U.S.A. (decided March 19, 2009) from the U.S. District Court, Western District of Texas, San Antonio Division is of particular interest to med mal attorneys. This Federal Tort Claims Act malpractice lawsuit involved the death of a woman leaving behind a husband and child. A bench trial resulted in a verdict in favor of the plaintiffs in the amount of $1,769,500 a portion of which was attributable to the loss of services previously provided by the deceased wife/mother.
Plaintiffs' counsel argued that those services had a distinct pecuniary value and therefore should be excluded from the $250,000 non-economic damages cap applicable to med mal claims. Although the Court did not directly address whether the loss of domestic services necessarily qualified as an economic loss, it nonetheless found that such claim was subject to the $250,000 cap. The Court's logic was that before a loss of this nature can be recovered, there must be proof that the plaintiffs truly did experience a direct financial loss. In other words, the Court reasoned that there must be evidence of actual payment for the replaced household services before it could qualify as an economic loss. Absent such proof, the Court determined that such claim fell under the non-economic damages cap. The decision borrowed from the "actually paid or incurred" language in Section 41.0105 of the Texas Civil Practice & Remedies Code which limits recovery of medical expenses to that amount which has been specifically paid or incurred. Extrapolating the logic of that statute, the Court reasoned that the value of lost domestic services can only qualify as economic damages if they have been actually paid or incurred. As such, the Court denied Plaintiff's request and held that the loss of services claim was subject to the $250,000 cap.
For a copy of the decision, click this icon.
