ww2.justanswer.comww2.justanswer.com/.../2012-08-22_184030_haimes_and… · web...
TRANSCRIPT
Haimes and Vandervender1
Haimes and Vandervender
Haimes and Vandervender2
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 injuries which 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.
Haimes and Vandervender3
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
Haimes and Vandervender4
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.
Haimes and Vandervender5
Plaintiff's husband, Allen N. Haimes, D.D.S., testified about 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
Haimes and Vandervender6
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
Haimes and Vandervender7
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.
Haimes and Vandervender8
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
Haimes and Vandervender9
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 promotion to second
assistant manager. When she was working on January 4, 1991, Appellee hurt 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,
and told 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
Haimes and Vandervender10
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.
Appellee went 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 good for 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.
Haimes and Vandervender11
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.
In June 1995, Ms. Vandevender amended her complaint to say that Sheetz, Inc. failed to
realize and assist her with her restrictions during the period between 1991 and 1995 in violation
of the Human Rights Act and that Ms. Imler's request that she stock the cooler on her return to
work, constituted an unlawful retaliation in violation of the Human Rights Act. See W. Va. Code
§ 5-11-9(7)(C). A three-day jury trial took place in September 1995 and came out well for the
Appellee. She was awarded $130,066 in compensatory damages, $170,000 for noneconomic
damages, and $2,699,000 in punitive damages. Sheetz, Inc. filed a motion for a judgment
notwithstanding the verdict (overturning the verdict and go the other way) or in the alternative, a
new trial. This appeal came after the court denied Sheetz’s motion.
Haimes and Vandervender12
2. What are the issues?
The main issue is that the Defendants/Appellants claim that the Plaintiff/Appellee should not
receive over $2m in punitive damages. Punitive damages are a sort of a punishment the court
awards due to the behavior of the defendant.
3. What laws apply?
The plaintiff must prove the defendant’s actions were the direct cause of her injuries and
must verify how much those injuries actually were. Also, the plaintiff (Vandervender) had to
show the actions which would give rise to any punitive damages.
4. What did the judge and jury decide?
The trial jury awarded Vandevender $130,066 in compensatory (compensation) damages,
$170,000 for noneconomic damages (pain, mental anguish) and $2,699,000 in punitive
(punishment) damages. They found the employer was at fault for her losing wages, being hurt a
second time, and for the actions they took which were obviously mean spirited and retaliatory.
The appeals court stated that there are certain “guideposts” to decide punitive damages
and that the Due Process Clause concerns of fair notice of the type of conduct that will subject a
defendant to punishment and fair notice of the severity of the penalty that may be imposed for
such conduct. These "guideposts", according to the appeals court are: (1) the degree of
reprehensibility of the defendant's conduct; (2) the ratio of punitive damages to the actual harm
inflicted on the plaintiff; and (3) a comparison of the punitive damages award with the civil or
criminal penalties that could be imposed for comparable misconduct. The Appellate court
lowered the punitive damages to $2 million, and left the other amounts the same.
Haimes and Vandervender13
5. Did the judge and jury make the appropriate decision based on the applicable laws
controlling the case? Why or why not?
The trial court made the appropriate decision, even though the appellate court lowered the
punitive damages somewhat. The employer and the supervisor at the store were at fault
personally really. At first, they would not take her back to work, they would not pay her medical
bills, and then they insisted on trying to intimidate her when they finally did give her the job
back. One of the things mentioned by the appellate court was that when she finally did get her
job back, they made her do heavy work right away, almost in a mean spirited way. In fact one of
the higher supervisors was there on the job to order her to do the heavy work.
6. What are the ethical issues in the cases? Do the ethical issues differ from the legal issues?
If so, how?
In Vandervender, the company clearly did everything they could to force Ms.
Vandevender out of her job and not pay Workers’ Compensation. Even when she brought in the
correct medical reports they made her stock shelves on her first day back to work. Their
company policy allegedly would not let her come back to work and then gave her difficulty when
she finally got her job back. This went beyond being illegal and was clearly a breach of any
business ethics.
Haimes case was different. When notified that Ms. Haimes had previously had a reaction
to a similar substance that was to be used in her CT, the doctor carefully did tests of minute
amounts to see if there was a reaction. No attempt was made to deceive or to do anything
unethical.
7. I do not believe that either of these cases were frivolous or a waste of time. In the
Haimes and Vandervender14
Vandervender case, the Appellee hurt her back while trying to open a very large jar of pickles
which was just part of her job. Using the word “pickles” might tend to make the whole case
seem silly, but the facts are not silly at all. A large number of medical professionals were
involved in Ms. Vandervelder, including one who actually did surgery, verifying that the injury
was real. If she had been in a car accident, or been burned by a steam pipe, her injuries would
have not seemed to be frivolous at all.
The other case played out differently. Many witnesses testified as to plaintiff’s psychic
abilities. Ms. Haimes had practiced her profession for over seven years and actually did make
her living reading auras. The loss of her ability to do this meant she could not continue to
practice her profession. Whenever someone loses something of value such as this, they have a
right to seek damages from the person responsible.
In the Haimes situation, the hospital may not have been able to do things any differently
if the injection of this dye was the only way to identify the suspected tumors. But, when Dr. Hart
saw the reaction to the dye, she could have insisted Ms. Haimes stay, perhaps even overnight, to
watch her symptoms and provide medical attention. There is not enough information in the case
to know if more or different medical care would have changed the outcome of the plaintiff’s
medical condition.
However, the Sheetz company would have plenty of things they could have done
differently to prevent the same outcome. When someone is hurt on the job the workers’
compensation law must be followed. Medical bills are to be paid according to the law. And the
employer must follow the laws and rules about offering a position to the employees who can
Haimes and Vandervender15
come back and do the job, even if some accomodations are necessary. There was little this
company did correctly.
Conclusion
Reading headlines in the newspaper or a short synopsis of a possible personal injury case
does not always tell the whole story. What seems trivial or “frivolous” can sometimes belie a
true story of injury and harm to a person, not to mention the almost “evil” intentions of the
people who are supposed to follow the law. A serious injury can result from what at first might
sound like a small incident and it can ruin someone’s career or cause lifelong injury. All the
details should be examined before a decision is made.
Haimes and Vandervender16
References
http://www.leagle.com/xmlResult.aspx?xmldoc=198642039PaDampC3d381_1354.xml&docbase=CSLWAR2-1986-2006
*******
http://pa.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19900327_0041094.PA.htm/qx
*******
http://lawhaha.com/plaintiff-sues-for-loss-of-psychic-powers/