Law and Non-Legal Entitlements: Kate Manne’s Entitled: How Male Privilege Hurts Women

LESLEY WEXLER

Illinois law professor Lesley Wexler comments on philosopher Kate Manne’s recent book, Entitled, in which Mann tackles “privileged men’s sense of entitlement” as a “pervasive social problem with often devastating consequences.” Wexler praises Manne’s work as “illuminating” and calls upon lawyers and law scholars to ask how such entitlements might best and safely be challenged and reallocated, and how new more egalitarian entitlements might be generated and enforced.

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Ex parte Gulf Health Hospitals, Inc., d/b/a Thomas Hospital.

Court: Supreme Court of Alabama

Docket: 1180596

Opinion Date: September 4, 2020

Judge: Mitchell

Areas of Law: Civil Procedure, Health Law, Medical Malpractice

Deborah Faison ("Deborah") died from cardiac arrest while she was a patient at Thomas Hospital in Fairhope, Alabama. Her husband Larry Faison ("Faison") then sued Gulf Health Hospitals, Inc. ("Gulf Health"), which owned and operated the hospital. Over a year after filing suit, Faison was allowed to amend his complaint by making additional factual allegations to support his claims. Gulf Health petitioned the Alabama Supreme Court for a writ of mandamus to direct the trial court to strike the amended complaint. Gulf Health argued the the amendment was untimely and without good cause. The Supreme Court determined Gulf Health did not meet its burden of showing that a postjudgment appeal was an inadequate remedy. Therefore, petition was denied.

Spencer v. Remillard

Court: Supreme Court of Alabama

Docket: 1180650

Opinion Date: September 4, 2020

Judge: Mendheim

Areas of Law: Civil Procedure, Medical Malpractice

Kimberlee Spencer ("Kimberlee"), as personal representative of the estate of James Scott Spencer ("Scott"), her deceased husband, appealed a judgment as a matter of law entered by the circuit court at the close of Kimberlee's medical malpractice case against Michael Remillard, M.D., and Helena Family Medicine, LLC, the entity through which Dr. Remillard operated his family-medicine clinic ("the clinic"). On a visit in 2006 for a physical, Scott informed Dr. Remillard that his father had been diagnosed with early-stage prostate cancer. Scott had blood work and lab tests done during the 2006 visit, including a blood test used to assess a man's risk for developing prostate cancer. At that time, Scott's PSA level was 1.9, which was within the normal range for a man his age, 46 years old. In 2009, Scott again visited Dr. Remillard. Scott told Dr. Remillard that he had seen some blood in his stool, and Dr. Remillard performed a rectal examination on Scott. Dr. Remillard concluded from that exam that Scott's prostate was firm and normal, so he recommended that Scott get a colonoscopy to determine if there was a problem with his colon. Scott also had blood work done during the 2009 visit. At that time, Scott's PSA level was 14.3, which Dr. Remillard and Kimberlee's medical experts agreed was an elevated PSA level for a 49-year-old. A pivotal factual dispute in this case centered on when Dr. Remillard and Helena Family Medicine first informed Scott of the 2009 elevated PSA level. Scott next visited the clinic in 2011. During that visit, Dr. Remillard did not tell Scott about his 2009 elevated PSA level, but he did perform a rectal examination, and he determined that Scott's prostate was enlarged. Dr. Remillard diagnosed Scott with benign prostatic hyperplasia, and he prescribed Scott some medication for the condition. Scott was ultimately diagnosed with stage IV metastatic prostate cancer; he died as a result of the cancer on March 6, 2014. The Alabama Supreme Court concluded Kimberlee presented competent expert-witness testimony regarding the standard of care and causation. In the interest of judicial economy, the Court also addressed other rulings by the trial court challenged by Kimberlee in this appeal. Concerning those rulings, Kimberlee's CMA nursing expert should have been permitted to testify, but the trial court properly excluded Kimberlee's counsel from directly questioning Dr. Remillard about his failure to tell Scott about his 2009 abnormal PSA lab-test result during his April 7, 2011, visit to the clinic. The judgment of the trial court was reversed, and the case remanded for a new trial.

Burchell v. Faculty Physicians & Surgeons etc.

Court: California Courts of Appeal

Docket: E071146(Fourth Appellate District)

Opinion Date: September 10, 2020

Judge: Raphael

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

In 2014, plaintiff-respondent Keith Burchell underwent what was supposed to be a simple, outpatient procedure to remove a small mass in his scrotum for testing. His surgeon, Dr. Gary Barker, discovered that the mass was more extensive than expected, believing the mass was malignant. Without consulting either Burchell (who was under anesthesia) or the person Burchell had designated as his medical proxy, Barker removed the mass from both the scrotum and the penis, a different and substantially more invasive procedure than had been contemplated. Burchell suffered serious side effects, some of which are permanent and irreversible. The mass turned out to be benign. Burchell brought suit, alleging professional negligence and medical battery. A jury returned a verdict for Burchell on both causes of action, awarding him $4 million in past noneconomic damages and $5.25 million in future noneconomic damages against Dr. Barker and defendant-appellant Faculty Physicians & Surgeons of the Loma Linda University School of Medicine (FPS). On appeal, FPS argued the award of noneconomic damages should have been reduced to the $250,000 limit on such damages in “any action for injury against a health care provider based on professional negligence” provided by Civil Code section 3333.2(a), part of the Medical Injury Compensation Reform Act of 1975 (MICRA). In the alternative, FPS argued the award of noneconomic damages was excessive and the product of improper argument by Burchell’s counsel, so the Court of Appeal should reverse and remand for new trial unless Burchell accepts a reduction of the award to an amount we deem reasonable. Finally, FPS argued Burchell’s offer to compromise pursuant to Code of Civil Procedure section 998 was invalid, so the award of expert witness fees and prejudgment interest should also be reversed. After review, the Court of Appeal rejected FPS' first two arguments, but concurred that Burchell’s section 998 offer was invalid, and therefore reversed the award of expert witness fees and prejudgment interest.