Medical Malpractice Caps In Action: What’s A Discarded Kidney Worth?

Medical Malpractice Caps In Action: What’s A Discarded Kidney Worth?

Picture yourself in the hospital with life threatening renal disease. Doctors tell you that your brother is a perfect match for a kidney transplant. Picture yourself as the brother. You agree to donate a kidney to save your sister. You both go under anesthesia. When you wake up, you learn that the surgery to remove the kidney was a success. The surgery to transplant the kidney, however, was not so successful. Unfortunately, hospital employees accidently discarded the healthy kidney, disposing of it with other medical waste. How do you measure the cost of this error? How does one value a case involving this sort of medical negligence?

This is a true story. It happened to Paul Fudacz Jr. and his sister Sarah A. Fudacz in August of 2012 at the University of Toledo Medical Center (UTMC). The entire Fudacz family filed suit against UTMC in July of 2013 (Ohio Court of Claims, case no. 2013-00441). They recently settled the case.  UTMC, which did not admit liability in settlement documents, agreed to pay $650,000.00 to the Fudacz family.  According to a May 29, 2014 news story in the Toledo Blade, plaintiff's counsel explained that the settlement was restricted by state-imposed limits because the incident happened at a public facility. Attorney James E. Arnold explained, “I think they are disappointed the state imposes those types of limitations in these types of cases,” he said. “It goes to the old sovereignty that you can't sue the king unless the king wants you to, and that's who the state is in this case.”

For the last several decades, the issue of caps in medical malpractice suits has been hotly debated in this country. A few months ago, the Florida Supreme Court struck down caps in medical malpractice wrongful death suits. See a prior article on the topic  here . Meanwhile, the Kansas Supreme Court upheld medical malpractice caps in 2012. A recent article on the This is Real Law home page set out the current landscape and the issues in play. See  here .

The plaintiffs’ bar and consumer rights groups argue for elimination of caps and the constitutional right to a jury trial. The defense bar, medical providers, and insurance groups argue that the caps help keep down spiraling and unnecessary medical costs associated with medical negligence claims. And in front and center of the debate are the individual cases involving people like the Fudacz family. We can use tools like the Verdict and Settlement Analyzer (link below) to assess the value of the cases we handle. That is easy. But as legal professionals, we must look to underlying issues of policy and fairness and ask the truly hard question: “How do we want to measure the cost of this error?”

On Aug. 10, 2012, Paul Fudacz Jr. and his sister Sarah A. Fudacz underwent surgery at The University of Toledo Medical Center (UTMC). Sarah was a 24-year-old woman who suffered from end stage renal disease. She was there for a kidney transplant. Paul was there to donate one of his kidneys to her. The surgery, however, did not go as planned, and a UTMC employee threw Paul's kidney away by mistake. While the kidney was later recovered, it was deemed unusable because it was intermingled with other infected and/or non-sterile medical waste. Although Sarah later underwent kidney transplant surgery, the kidney she received was of poorer quality and also a poorer match. 

On July 29, 2013, Sarah, Paul, their siblings, and their parents, Paul Fudacz, Sr. and Ellen Fudacz filed an action against UTMC in the Ohio Court of Claims. The complaint included claims for medical negligence, parental loss of consortium, sibling loss of consortium, and negligent infliction of emotional distress. The action was assigned to Judge Dale A. Crawford. 

The parties reached a settlement and on May 20, 2014, they filed their settlement agreement with the court. Under the terms of the parties' accord, UTMC agreed to pay $ 650,000.00 to settle the matter. According to a May 29, 2014 news story, plaintiff's counsel explained that the settlement was restricted by state-imposed limits because the incident happened at a public facility.

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