Reflections on the Movement in California to Repeal the State’s Ban on Affirmative Action

VIKRAM DAVID AMAR

Illinois law dean and professor Vikram David Amar offers three observations on a measure recently approved by the California legislature that would, if approved by the voters, repeal Proposition 209, the voter initiative that has prohibited affirmative action by the state and its subdivisions since its passage in 1996. Amar praises the California legislature for seeking to repeal Prop 209 and for seeking to do so using the proper procedures, and he suggests that if Prop 209 is repealed, legal rationales for the use of race should be based not only on the value of diversity (as they have been for some time now), but also on the need to remedy past wrongs against Black Americans.

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Zhao v. United States

Court: US Court of Appeals for the Seventh Circuit

Docket: 19-3071

Opinion Date: June 29, 2020

Judge: HAMILTON

Areas of Law: Government & Administrative Law, Medical Malpractice, Personal Injury

When Zhao gave birth to her son “S.,” he suffered an avoidable brachial plexus injury that severely and permanently impaired the function of his right arm. During her pregnancy and S.’s birth, Zhao was attended by an obstetrician employed by a federally supported grant clinic in southern Illinois, who is considered an employee of the U.S. Public Health Service under 42 U.S.C. 233(g), Zhao sued for medical malpractice under the Federal Tort Claims Act. The court found that the obstetrician had been negligent and awarded Zhao, on behalf of S., $2.6 million in lost earnings and $5.5 million in noneconomic damages. S. was not five years old at the time of trial. The Seventh Circuit affirmed, rejecting the government’s argument that the calculation of S.’s future lost earnings was improperly speculative, given the uncertainties inherent in projecting a five‐year‐old’s career opportunities. The question may have been difficult, but there was no reversible error. The court took a reasonable approach to estimate the lost earnings award based on data provided in expert testimony. The government also challenged the award of non-economic damages as arbitrary and excessive in comparison to similar cases. The court could have provided a more detailed explanation of its comparative process, but its reasoning did not amount to reversible error.

Ex parte Kathy Russell, R.N.

Court: Supreme Court of Alabama

Dockets: 1180317, 1180319, 1180318

Opinion Date: June 26, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Medical Malpractice

Lamerle Miles ("Miles"), as the personal representative of the estate of her deceased mother Tameca Miles ("Tameca"), sued Coosa Valley Medical Center ("CVMC") and other named and fictitiously named parties, alleging that they had engaged in negligent, wanton, and outrageous conduct that caused Tameca's death. Miles specifically alleged that multiple CVMC employees had breached the applicable standards of care, resulting in the Sylacauga Police Department removing Tameca from the CVMC emergency room before she was treated for what was ultimately determined to be bacterial meningitis. Miles did not identify any specific CVMC employees in her original complaint, but she later filed a series of amendments substituting Kristen Blanchard, Teshia Gulas, Carla Pruitt, and Kathy Russell for fictitiously named defendants. After being substituted as defendants, the CVMC petitioners moved the trial court to enter summary judgments in their favor, arguing that they had not been named defendants within the two-year period allowed by the statute of limitations governing wrongful-death actions. The Talladega Circuit Court denied those motions, and the CVMC petitioners sought mandamus relief from the Alabama Supreme Court. After review, the Court denied petitions filed by Blanchard, Gulas, and Pruitt. The Court granted Russell's petition because Miles' complaint did not state a cause of action against her.

Williams v. Barry

Court: Supreme Court of Alabama

Docket: 1180352

Opinion Date: June 26, 2020

Judge: Alisa Kelli Wise

Areas of Law: Civil Procedure, Medical Malpractice, Personal Injury

Angela Williams, as mother and next friend of Li'Jonas Earl Williams, a deceased minor, appealed a judgment as a matter of law entered in favor of the remaining defendants, Dr. Wesley H. Barry, Jr., and Advanced Surgical Associates, P.C. Li'Jonas Williams was a 17-year-old with sickle-cell disease. In June 2014, Li'Jonas went to the emergency room at Southern Regional Medical Center in Georgia ("the Georgia hospital") complaining of back and chest pain. A CT scan performed at the Georgia hospital showed that Li'Jonas had cholelithiasis, which is stones in the gallbladder. Li'Jonas and Williams saw Li'Jonas's pediatrician in Montgomery, Dr. Julius Sadarian. Dr. Sadarian referred Li'Jonas to Dr. Barry for gallbladder removal. Dr. Barry testified that Li'Jonas tolerated the procedure well; that Li'Jonas did not experience any complications during the surgery; and that Li'Jonas had only about 10ccs (two teaspoons) of blood loss during the surgery. Li'Jonas did not experience any problems when he was in the post-anesthesia-care unit or when he was in the outpatient recovery room. On the evening of August 4, 2014, Li'Jonas was found unresponsive at his home. He was transported by ambulance to the emergency; ultimately efforts to revive Li'Jonas were unsuccessful and he died a half hour after admission to the ER. In her fourth amended complaint, Williams asserted a wrongful-death claim based on allegations of medical malpractice pursuant to the Alabama Medical Liability Act against defendants. Judgment was entered in favor of defendants, and Williams appealed. The Alabama Supreme Court found that when the evidence was viewed in a light most favorable to the plaintiff, Williams presented substantial evidence to create a factual dispute requiring resolution by the jury as to the issue whether the surgery performed by Dr. Barry was the proximate cause of Li'Jonas's death. It therefore reversed the trial court's judgment and remanded for further proceedings.

McLeod v. Millette

Court: Supreme Court of Mississippi

Citation: 2019-CA-01001-SCT

Opinion Date: July 2, 2020

Judge: Griffis

Areas of Law: Medical Malpractice, Personal Injury

Lula McLeod and her husband, John McLeod, appeal the circuit court’s dismissal of their medical-negligence case on grounds that it was filed outside of the limit in the applicable statute of limitations. The Mississippi Supreme Court found that because the record reflected the case was timely filed, the circuit court’s judgment should be reversed and the matter remanded for further proceedings.

Magney v. Pham

Court: Washington Supreme Court

Docket: 96669-9

Opinion Date: July 2, 2020

Judge: Charles Wiggins

Areas of Law: Civil Procedure, Medical Malpractice

The issue this case presented for the Washington Supreme Court's review centered on whether petitioners-parents waived the marital counseling privilege when they filed a claim for damages against the doctors who treated their infant son on the ground that the child was misdiagnosed with cancer. Prior to the alleged misdiagnosis, Brian and Emily Magney had engaged in and completed marital counseling. Defendant doctors sought discovery of the records, but the Magneys filed a motion for a protection order to prevent disclosure given that the records were privileged. The superior court denied the motion and ordered disclosure. analogizing the marital counseling privilege to the psychologist-client privilege, which the Court of Appeals has held is automatically waived when emotional distress is at issue. The Supreme Court reversed the superior court, holding the Magneys did not automatically waive privilege because filing a lawsuit is not one of the enumerated exceptions under the "marital counseling" privilege statute. The Court could not determine on the record whether the privilege was impliedly waived by the actions of the Magneys at this point in litigation. The matter was remanded to the superior court for an in camera review of the records and evidence the parties submitted to determine whether the privilege was impliedly waived.