Haimes and Vandervender

Introduction

Personal injury cases are often in the news—car accidents, a fall in a grocery store, someone gets hurt at a theme park. Sometimes the reasons people sue others sounds rather silly when printed in the newspapers or on the internet. These cases are legally called “torts” or civil wrongs. They are not criminal matters, but one person claims another person or business harmed them through some type of negligence or other wrongful actions. Should people sue when they are harmed by someone else? Everyone has an opinion. Some of these lawsuits are understandable; some not so much. ***

Many personal injury lawsuits that are recounted in the paper sound ridiculous to the readers. To a person who does not know all the facts, another person’s injury can seem trivial. For instance, a story of a person who files a lawsuit because he slipped on a wet floor at a restaurant seems like “no big deal” but what if that person sustained a fractured skull, had no insurance, and the restaurant’s insurance would not help with the bills? It sounds different in that scenario.

Haimes v Temple University

Plaintiff Judith Richardson Haimes and her husband, Allen N. Haimes, began this medical-malpractice lawsuit to win damages for injurieswhich were suffered by Mrs. Haimes. She claimed to have sustained these injuries as a result of undergoing a computerized axiotomography (CT scan), a type of diagnostic x-ray. The main damages claimed by plaintiff (Ms. Haimes) consisted of constant and disabling headaches which totally prevented her from practicing her livelihood which was a practicing psychic.

There was no “out of court settlement” made, so after a period of time, the case was ready for trial. A jury trial was held and it took four days to complete. They came in with a verdict in the amount of $600,000 in favor of the plaintiff and against Judith Hart, M.D., the physician who was in charge of the CT scan, and also against Temple University Hospital.

During the trial when she testified, Judith Richardson Haimes told the jury that she had psychic powers since she was born. According to her, having psychic powers means he or she has the ability to call on an extra “sense,” in addition to the four that most people are born with. She explained that there are different kinds of psychic powers. Ms. Haimes’ particular special gift was to read auras. An aura is a certain glow or sort of light that surrounds people and inanimate objects. She could interpret the shapes, sizes, colors, and flecks of the aura and by doing so, tell things about the person she was “reading” including the past and the future.

The plaintiff, Ms. Haimes, had opened her professional office in 1969 in New Castle, Delaware and this is where she practiced psychic counseling. Also, she assisted law enforcement agencies one day per week, and occasionally lectured, appeared on radio and even on television.

One of the plaintiff’s clients, a medical doctor, suggested she go to an ear, nose and throat specialist due to some suspected tumors. In September, 1976, she did consult an otolaryngolist, Dr. Max Ronis. Plaintiff had previously undergone approximately 14 surgeries for tumors on various parts of her body. Dr. Ronis conducted various tests and referred plaintiff for a CT scan. Judith Hart, M.D., who had completed a residency in radiology and was then a fellow in neuroradiology, prepared to give the test. Prior giving the CT scan, a type of dye had to be introduced into plaintiff's bloodstream. As Dr. Hart was about to inject plaintiff with the dye, plaintiff told Dr. Hart that she had found through previous medical procedures that she was allergic to those particular dyes. After using the dye prior to her other surgeries she had suffered hives, vomiting, and difficulty breathing. Dr. Hart and the plaintiff also talked about whether or not to go ahead with the test at all, due to plaintiff’s being nervous about it.

Dr. Hart set up an IV (intravenous) line in order to administer drugs quickly if a problem came about. She also tried a test dose of the dye that was going to be used in the CT scan. At first, two drops of dye were put into the IV, and a few minutes later, eight more drops were released. Almost instantaneously, plaintiff developed breathing problems, tightness in her throat, pain, hives and welts. Dr. Hart stopped the dye and gave plaintiff epinephrine and benadryl to counteract the reaction from the dye.

Ms. Haimes remained under observation for about 20 minutes in the radiology department. Dr. Hart examined her and told her that she could go home. Plaintiff was then driven home by a friend. During the next 48 hours, plaintiff went through a very bad period of vomiting, nausea and headaches. She had some welts on her body for three days and hives for several weeks. Additionally, plaintiff testified that she still suffered from headaches and nausea at the time of the trial.

Much of plaintiff's testimony concerned her psychic abilities and her inability to practice following the CT scan incident. To read an aura, according to plaintiff, it is necessary to go into an “altered state”--a state of deep concentration. However, after the reaction to the dye, whenever plaintiff entered this altered state she developed debilitating headaches. As a result, she had to stop reading auras. Obviously, she closed her office in Delaware and stopped assisting law enforcement officers. She also blamed herself for not being able to see her son’s aura, and he was killed in an automobile accident.

Plaintiff's husband, Allen N. Haimes, D.D.S., testifiedabout the headaches his wife was going through, the changes he observed in her and the effect these changes have had on the lifestyle of the entire family. At the close of both sides of the case, the court instructed the jury about the law.

Included in the court's instructions were the following things:

"First, I must explain to you, since this was done out of your presence yesterday that, as a result of a legal ruling I made, certain issues are no longer present in this case and they are not for your consideration. Specifically, you need not decide whether or not plaintiff, Judith Richardson Haimes, suffered from or presently suffers from headaches. You also need not decide whether or not plaintiff ever possessed psychic powers or whether, if she did, she lost her psychic powers as a result of a reaction to the dye administered to her during the CAT scan. That is not for your consideration and you are not to concern yourself as to the reasons for my ruling because they all pertain to matters of law."

The court also told the jury that they could not aware the plaintiff damages for her suffering due to headaches or the loss of her psychic abilities, resulting in the loss of her profession. ***
2. What are the issues?

The defendants (Dr. Hart and the Hospital) appealed the case because want the jury verdict to be reversed due to what they say is a decision contrary to applicable legal standards and not supported by evidence. The jurors have the responsibility to listen to the evidence and evaluate sometimes complex and conflicting statements, and then come up with a fair and accurate verdict. But, they said in their brief, the trial court must grant a new trial when the verdict is practically opposite to what the evidence showed. They went on to say, if the trial court did not do this, it would be a serious injustice. It is the trial court’s duty to do this. But, a new trial should not be granted just because there are a few minor errors or conflicts in the testimony.

Although the granting of a new trial is within the sound discretion of the trial judge who is present at the offering of the testimony, that discretion is not absolute. A new trial should not be granted because of a mere conflict in testimony or because the trial judge on the same facts would have arrived at a different conclusion. Rather, a new trial should be awarded only when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and a new trial is necessary to rectify the situation. Defendants offer two possible explanations for the $600,000 verdict. First, this award might represent compensation for plaintiff's legally proven injuries. If this explanation is accurate, the verdict is excessive. Second, the jury disregarded the court's instructions and took into account the damages that were precluded by virtue of the judge’s order. If this explanation is accurate, a new trial should be awarded because the jury disregarded the law. Regardless of which explanation of the jury's verdict is correct, for the reasons explored below, a new trial is warranted. Since we are certain that one of the above two scenarios occurred, we need not ascertain which rationale actually supported the jury verdict.

EXCESSIVENESS OF VERDICT

3. What laws apply?

There needed to be expert medical testimony regarding the causal relationship between defendants' alleged negligent acts and plaintiff's continuing headaches. It is the plaintiff's job , in this case Ms. Haimes’, to establish a direct connection between defendants' conduct and her injury. In other words, "defendant's conduct must be shown to have been the proximate cause of plaintiff's injury." In personal injury cases, it is usually out of the realm of the average person to be able to tell, without medical testimony, “what causes what.” In other words without testimony from a medical expert, saying that the problems of the plaintiff was actually caused by the defendants, the defendants claim the jury could not legally find as they did. To sum up, the plaintiff must present expert medical testimony establishing the causal relationship between defendants' conduct and plaintiff's injury. She presented one medical expert only and nothing pertaining to the loss of her psychic powers. Therefore, the defendants basically said the appellate court must reverse the verdict because the jury was wrong.

4. What did the judge and jury decide?
The trial jury awarded Ms. Haimes $600,000, but the appellate court turned that verdict over and she ended up getting nothing at all.

5. Did the judge and jury make the appropriate decision based on the applicable laws controlling the case? Why or why not?

According to the appeals court, the trial court awarded an excessive amount based on the fact that Ms.Haimes did not present an appropriate amount of medical evidence, in the form of expert medical testimony, as to her actual injuries. Her basic contention was that the loss of her psychic powers were a big part of what she sustained as an injury and did not concentrate on the headaches so much. However, the jury was instructed not to consider that in their decision. Nevertheless, the appellate court overturned the verdict and award of the money. Part of the Appellate court decision follows:
“Assuming that the jury verdict represented compensation for plaintiff's legally proven damages, we must determine whether the award is excessive. In reviewing defendants' claim that the damages awarded by the jury are excessive, we recognize that the duty of assessing damages is within the province of the jury and should not be interfered with except where it clearly appears that the amount awarded resulted from a misconception of law or evidence, caprice, prejudice, partiality, corruption or some other improper influence. Tonik v. Apex Garages, Inc., 442 Pa. 373, 275 A.2d 296 (1971); Jenkins Towel Service, Inc. v. Fidelity Philadelphia Trust Co., 400 Pa. 98, 161 A.2d 334 (1960). A court should not find a verdict excessive unless it is so grossly excessive as to shock the court's sense of justice. Thompson v. Anthony Crane Rental, Inc., 325 Pa. Super.386, 473 A.2d 120 (1984). In determining whether this standard is met, one court has remarked that "[w]hen the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to judicial conscience." Swartz v. Smolowitz, 400 Pa. 109, 116, 161 A.2d 330, 333 (1960). Although this court did not manifest any of the aforementioned gyrations, we nonetheless find the verdict to be so grossly excessive as to shock the court's sense of justice.”

6. What are the ethical issues in the cases? Do the ethical issues differ from the legal issues? If so, how? There are really few, if any ethical issues in this case. The doctor, Dr. Hart, did try using only a few drops of the dye that was going to be used in the CT to test Ms. Haimes’ sensitivity to it. When she seemed to have a reaction, they did not use the substance. However, shortly thereafter, the doctor did send her home where she proceeded to be sick for several days to, apparently to the testing of the dye. Whether the doctor should have sent her home, or not, might have been an ethical “call” but it did not seem to be emphasized in the case.

Cheryl Vandevender v Sheetz, Inc.
1. What are the facts?
Ms. Vandevender (Appellee) was hired to be a clerk by Sheetz, Inc. to work in one of its convenience stores on June 8, 1989. Within six months, she received a promotionto second assistant manager. When she was working on January 4, 1991, Appelleehurt her back when she tried to open a very large jar. She saw a doctor in about this back injury on January 21, 1991. Even with her injury, she continued to work for several months. Ms. Vandevender began receiving temporary total disability workers compensation ("TTD") benefits on July 30, 1991, because she was still in pain with the back injury. She did have back surgery on October 7, 1991.

In either August or October of 1992,Appellee met with the store manager, Karen Foltz, andtold her that she could come back to work but had the permanent limitation of performing no heavy lifting. Ms. Foltz told Ms. Vandevender that she could not return to work, because of company policy, unless she had no restrictions. Because the company would not allow her to go back to work with restrictions, Appellee's physician continued to consider her as totally temporarily disabled and therefore eligible for benefits.

Sheetz, Inc. sent Appellee a letter on March 15, 1993, telling her that according to their company, a twelve-month absence from work is treated as a resignation. The letter indicated that if Appellee was able to come back to work, she should contact the company's human resource department within one week and that she would be eligible for rehire upon appropriate medical release. That was, of course, subject to her qualifications and abilities regarding her job duties and responsibilities. Appellee did not contact either Sheetz' human resource department or her store manager. Just as the letter said they would do, Sheetz fired Appellee in March 1993.

Appelleewent to see a workers' compensation doctor on June 19, 1994, and decided that she had reached her maximum degree of medical improvement. As a result of this medical determination, Appellee's benefits were ended on October 11, 1994 since they were supposed to be temporary only.

On October 12, 1994, Trudy Rohrbaugh, a West Virginia Rehabilitation Counselor, called the manager at Sheetz, Inc. to inquire about Appellee returning to work. The manager told Ms. Rohrbaugh that it was her understanding that it would do no goodfor Appellee to apply for her job back, she did tell the rehabilitation counselor to call Sheetz' corporate office. It is not disputed that neither Appellee nor Ms. Rohrbaugh called Sheetz' corporate office to inquire about rehiring Ms. Vandevender. ***

On December 1, 1994, Appellee filed a civil lawsuit against Sheetz for refusing to rehire an employee discharged following a work-related injury. This was allegedly a violation of the anti-discrimination laws of the West Virginia Workers' Compensation Act ("Workers' Compensation Act") and in violation of the West Virginia Human Rights Act ("Human Rights Act"). During discovery in the lawsuit, Ms. Foltz testified that Appellee could have been put on a lighter duty since the job functions listed by Sheetz requiring employees to lift up to fifty pounds and to stand for eight hours a day were not particularly necessary. In response to these statements, Appellee demanded to be returned to her job under the restrictions that the doctor had set down previously.

Sheetz, Inc. offered to hire Appellee as a sales clerk on February 3, 1995, and she took them up on the job. The regional manager, Ms. Imler, was present on the date of Appellee's first day back and asked that Appellee provide her with a list of work restrictions. Ms. Imler demanded to see written restrictions even though the company had required Appellee to undergo an independent medical examination one month prior to her return to work and despite the fact that Ms. Imler and the district manager, Ms. Anslinger, had seen and discussed the report of Appellee's medical examination. Ms. Imler said that until she received an updated doctor's excuse, there were no restrictions. Ms. Imler ordered her to obtain a current medical examination by Friday of the same week, although Appellee was scheduled to work every day that week. Pursuant to Ms. Imler's orders, Appellee began to stock the cooler, but had to stop after only twenty minutes of work because of back spasms.Appellee continued to work for several more hours, but did not inform anyone at the store regarding her back problems while stocking. She called her job the next morning and said she would not be returning after speaking to her attorney.