Kelly on Malpractice

Litigation of companion medical malpractice cases can be troublesome because collateral estoppel is always lurking in the background. In Mullins v. State, 2009 WL 3126232 (Tenn.), the plaintiff filed a medical malpractice claim (a) in the Claims Commission that had earlier been adjudicated (b) in federal court. The federal jury returned a defense verdict and declined to assign fault to a nonparty resident physician (“Dr. Mejia”), who had been dismissed because he was immune from suit in federal court. After the federal verdict, the State asserted that collateral estoppel barred the plaintiff from pursuing her claim of malpractice against Dr. Mejia in the Claims Commission. Collateral estoppel bars a party from re-litigating an issue when that issue has been actually and necessarily determined in an earlier proceeding between the parties. The State had the burden of proving: (1) that the issue to be precluded was identical to an issue decided in an earlier proceeding, (2) that the issue to be precluded was actually raised, litigated, and decided on the merits in the earlier proceeding, (3) that the judgment in the earlier proceeding had become final, (4) that the party against whom collateral estoppel is asserted was a party or is in privity with a party to the earlier proceeding, and [mutuality] (5) that the party against whom collateral estoppel is asserted had a full and fair opportunity in the earlier proceeding to contest the issue now sought to be precluded and (6) the issue must have been necessary to the judgment. Determination of an issue that is not necessary to a judgment is dicta and will not be given preclusive effect.

The Supreme Court found that the State could not prove element (5) because the plaintiff did not have a full and fair opportunity to litigate her medical negligence claims against Dr. Mejia in federal court. The plaintiff could not, as a matter of law, recover monetary damages from either Dr. Mejia or the State in the federal case. It would have been “foolhardy” for the plaintiff to press her claim that Dr. Mejia had been negligent in the federal case. That would have “diluted” the strength of her claims against the remaining defendants. Thus, the plaintiff had little incentive, if any, to litigate her negligence claim against Dr. Mejia in the federal case. Moreover, it was the defendants, not the plaintiff, who was pressing the claim against Dr. Mejia in the federal case to deflect their fault. Dr. Mejia was not a party to the federal proceeding. By the time the federal trial commenced, the plaintiff had already filed her claim against Dr. Mejia with the Tennessee Claims Commission. The parties were aware and “reasonably anticipated” that there would be additional litigation before the Claims Commission regarding plaintiff’s medical negligence claim against Dr. Mejia. At the time of the trial in federal court, both the plaintiff and Dr. Mejia knew that there would be a later opportunity to be heard before the Claims Commission. Therefore, the Supreme Court held that the State could not use collateral estoppel to bar the malpractice claim against Dr. Mejia in the Claims Commission.

The Court’s reliance on the expectations of the parties could be problematic in future cases. This seems like a subjective analysis to me. Nevertheless, you should read Mullins and beware of collateral estoppel when you have companion cases.

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