Courtroom Weekly: Healthcare and hearts

September 5, 2013

by: the State Court Staff

Obamacare, wildfires, sexual-assault and a two-state child custody case

Courtroom Weekly The latest and greatest in court cases around the nation In this issue... Featured case News from Iowa News from Montana News from Oklahoma News from Texas

Featured case Obamacare survives Tea Party challenge in Kentucky   Court: Kentucky Circuit Court 48 A Kentucky judge has ruled that both the expansion of Medicaid and the creation of the Kentucky Health Benefit Exchange, a state-run healthcare exchange program, can proceed according to schedule, paving the way for the program to begin open enrollment in October. Judge Phillip Shepherd of the Franklin County Circuit Court denied a motion by Tea Party activist David Adams that contended the creation of the exchange violated the Kentucky constitution, as did the expansion of Medicaid, the government-run healthcare program for the poor. Both the expansion of Medicaid and the exchange — online marketplaces where Kentucky consumers can shop for and compare health insurance plans — are part of Governor Steve Beshear’s executive order to implement Kentucky’s portion of the Patient Protection and Affordable Care Act, more commonly known as Obamacare. At issue was a Kentucky law that states “…it is the policy of the Commonwealth to take advantage of all federal funds that may be available for medical assistance.” In throwing out Adams’ challenge, Shepherd stated that “the goal of the statute, self-evidently, is to provide for expanded healthcare benefits for indigent citizens, which is clearly a valid state directive." Shepherd went on further to explain that “here, there are adequate safeguards on the exercise of the governor’s discretion,” and that “the Kentucky Supreme Court has held that this legislative power may be delegated to the executive branch of government in these circumstances.” Shepherd reasoned that though the state legislature had the power to repeal the law in question, this would require the enactment of a bill and that “this court cannot invalidate the Governor’s actions by judicial fiat.” Adams plans to appeal the ruling. “I’m just glad to get the show on the road,” he remarked. “We were headed to the Kentucky Supreme Court from the outset.” In a statement, Adams claimed that Beshear had lied in court and had broken state law to grant himself authority to expand Medicaid and create the health exchange, and simply needed one judge to ignore the facts of the case. In the meantime, the expansion of Medicaid and the creation of the health exchange will continue, according to Beshear. “All our systems to assist Kentuckians in finding quality, affordable health insurance will be ready to go on Oct. 1,” Beshear said in a statement. Beshear’s proposed Medicaid expansion will extend healthcare coverage to 308,000 Kentuckians, according to state figures, and more than 330,000 uninsured Kentuckians are expected to gain coverage through participating in the exchange.

News from Iowa Iowa Supreme Court upholds termination of university's dean of students   Court: Iowa Supreme Court On August 23, 2013, the Supreme Court of Iowa affirmed the Sixth District Court's grant of {{{{{{{{summary judgment}}}}}}}} in favor of the University of Iowa. The opinion, authored by Justice Bruce B. Zager, upheld Judge Fae Hoover-Grinde's decisions on all of the claims and motions presented on appeal. The ultimate rulings by both the Iowa Supreme Court and the Sixth District Court determined that the University of Iowa was justified in firing Phillip Jones, its dean of students, for his mishandling of certain sexual-assault allegations. The facts which gave rise to Mr. Jones' termination involve a female student who was sexually assaulted by other student-athletes on October 14, 2007, while in her dorm. Although Mr. Jones learned about the allegations of sexual assault the day after the incident, formal charges were not brought against the alleged perpetrators, who were university football players, until more than three weeks after the ordeal. Even then, the charges were brought only because the victim spoke with the University Department of Public Safety and the Johnson County attorney. The victim's and her family's dissatisfaction with the handling of the matter, and the amount of harassment and threats she faced in her own dorm, essentially forced the victim to report the incident to others. It was then that the victim learned that, after she went unconscious during the initial assault, she was assaulted a second time by a second assailant. To make matters even worse, the second assailant lived in the same dorm as the victim, just down the hall. According to University of Iowa President Sally Mason, Mr. Jones' termination resulted from "[his] failure to perform the duties and responsibilities of [his] position...in response to the 2007 sexual assault." That failure was evidenced by a mid-November conversation with the victim's mother in which Mr. Jones disavowed all knowledge of the incident and informed the victim's mother that he was unable to do anything "without a complaint, specific information, or credible allegations sent to his office." Further evidence arose as early as 5 days after the event, when Mr. Jones stated, "[W]ell, let’s see if we get a complaint," and expressed his concern for the two perpetrators since they had been suspended from the football team. When the harassment of the victim continued, the handling of the event became public, and the insufficient management of the issue by Mr. Jones continued, the Board of Regents for the State of Iowa hired an outside law firm to analyze the University's response to the entire ordeal. Mr. Jones was terminated after the investigation uncovered just how poorly he, and possibly other members of the staff, had handled the incident. This led to his lawsuit against the university and the investigating law firm, which alleged wrongful termination, defamation, and a bevy of other related claims. None of Mr. Jones' claims survived appeal and, according to an article on the United Press International website, both of the assailants were convicted for the assault.

News from Montana Montana firefighters sued for burnout gone awry   Court: Montana Supreme Court In various parts of the country, wildfires are often kept at bay by "burn out" or "backburn" methods. Both involve an intentionally lit, controlled fire, which burns up all the fuel in an area in order to stop the main fire. Firefighters have had success protecting land and property from forest fires using these methods. However, a recent incident in Montana may require some firefighters to change their ways. During the Ryan Gulch fire of 2000, which ended up burning over 17,000 acres of land, firefighters conducted a burn out to try to gain control of the fire. They ended up burning about 900 acres of land that was owned by the Weaver family and was part of the family's ranch. The Weavers sued the state for damages, claiming negligence on the part of the firefighters. In 2012, the case came before Judge Ray Dayton of the 3rd District Court in Granite County. A jury awarded the Weavers $730,000 in damages. This month, the state supreme court unanimously upheld the award. The decision was authored by Justice Beth Baker. In trial court, the state attempted to claim immunity from the lawsuit under the public duty doctrine, which states: "When a governmental entity owes a duty to the general public, that duty is not owed to any specific individual." However, Judge Dayton did not allow this defense, saying that the state's lawyers brought it up too late in the trial. The supreme court upheld Judge Dayton's decision, explaining that "the district court did not abuse its discretion in striking the defense under the circumstances presented here." The justices did not rule on whether or not the public duty doctrine would have been applicable if it had been brought up earlier in the trial. State Forester Bob Harrington explained the concerns of firefighters. Regarding the 2012 decision, he said: “ It implies that every time firefighters use burnout or backfire operations, they’re potentially liable for damages or even worse. ” However, he also stated: “ [W]e’re not going to be changing our operations in terms of fire management strategies…We’re going to continue to use all the tools in the toolbox, including burn-outs, in coordination with line officers and affected landowners. ” Quentin Rhoades, the attorney for the Weavers, explained: “ I know firefighters are afraid that ‘if we goof up, we’re held liable.’ But think about it from the landowners’ perspective. ‘If the firefighter goofs up, we have to eat it.’ There’s always tension between the two sides, and what it boils down to is the behavior in the individual case. ”

News from Oklahoma Six courts in three weeks, but Baby Veronica child custody case still not resolved   Court: Oklahoma Supreme Court Despite a 5-4 ruling issued by the U.S. Supreme Court last summer (see Major Supreme Court Cases 2012, Adoptive Couple v. Baby Girl), and rulings in state courts in South Carolina and Oklahoma, a custody battle over a child known as Baby Veronica continues. Veronica's adopted parents, Matt and Melanie Capobianco, of Charleston, South Carolina, were granted custody of the child through a private adoption that was agreed to by Veronica's biological mother in 2009. The family took Veronica back to South Carolina, and she lived with them for two years. Veronica's biological father, Dusten Brown, filed a claim to regain custody. His attorney argued Brown had not known he was signing away his parental rights. Brown and Veronica are both Native Americans, and members of the Cherokee Nation, which claims jurisdiction over the case. Brown argued Veronica's adoption violated the Indian Child Welfare Act, a federal law. The South Carolina Supreme Court granted him custody of Veronica in 2011. He brought her back to Oklahoma, where they have both lived for two years. Veronica's adopted parents appealed the decision to award custody to Brown through the U.S. Supreme Court. This summer, the court determined Brown had no rights under the Indian Child Welfare Act. The Supreme Court indicated: “ [T]he South Carolina Supreme Court erred in finding that (the Indian Child Welfare Act) barred termination of Biological Father's parental rights. ” According to the Supreme Court's ruling, no one, including Veronica's father or her father's relatives, ever attempted to seek custody of Veronica. In fact, Brown gave up his parental rights in a text message he sent to Veronica's biological mother, and her birth parents ended their relationship during the pregnancy. Throughout the pregnancy and until Veronica was adopted at the age of four months, Brown never provided any financial support. The Indian Child Welfare Act was created to prevent harmful child welfare practices where Indian children were placed for adoption in non-Indian homes, even when there were Indian families willing to adopt the children. However, based on Brown's actions, the Supreme Court determined he had voluntarily given up his rights to retain custody of his biological child. The U.S. Supreme Court sent the case back to the South Carolina Supreme Court so the court could decide whether Brown or the Capobiancos should have custody. Since Veronica had not lived in South Carolina for two years, Brown argued a hearing should be held to decide which custody arrangement would be best for Veronica. However, no hearing was held, and the Capobiancos were once again granted custody by the court. District Judge Curtis L. DeLapp of Oklahoma's District 11 Court for Nowata County, ordered that Dusten Brown should turn over Veronica to her adoptive parents, in accordance with the court order issued in South Carolina. However, his order has been temporarily stayed while the Oklahoma Supreme Court decides the case. Several other courts in Oklahoma have also been involved in the custody battle. Before Brown left Oklahoma for National Guard duty in July, he requested that the Cherokee Nation Court grant custody of Veronica to his current wife, Robin Brown and his parents. Two other county courts in Oklahoma have also heard proceedings related to the case. Brown refuses to return Veronica to her adopted parents, and he currently faces a felony charge for custodial interference in South Carolina. On August 13, Nikki Haley, South Carolina's governor, asked that Brown be extradited from Oklahoma to South Carolina. Oklahoma Governor Mary Fallin announced, on September 4, that she was signing an order to extradite Brown to South Carolina to face the felony charges. She stated, “ I said previously that I was willing to delay Mr. Brown’s extradition to South Carolina as long as all parties were working together in good faith to pursue such a settlement...it has become clear that Dusten Brown is not acting in good faith. He has disobeyed an Oklahoma court order to allow the Capobiancos to visit their adopted daughter and continues to deny visitation. He is acting in open violation of both Oklahoma and South Carolina courts, which have granted custody of Veronica to the Capobiancos. ” In a statement published in the Tulsa World, Chuck Hoskin, Jr., Secretary of State for the Cherokee Nation, released a statement saying, in part: “ We all continue to pray that a court will determine what is in Veronica’s best interests, which has yet to happen. ” A gag order is in place and court documents relating to the case in Oklahoma have been sealed. No date has been set for the Oklahoma Supreme Court to issue a ruling in the case.

News from Texas Texas appeals court rules hospital must return dead husband's heart   Court: Texas District 165 A Texas district court has ruled against a hospital that has been preventing a Harris County widow from retrieving her husband's heart. In January of 2004, Linda Carswell's husband Jerry was admitted to Christus St. Catherine Hospital in Katy, Texas for severe pain in his right side. He was diagnosed with kidney stones and prescribed several painkillers, including morphine and Lortab, before being scheduled for release three days after his admission. On the day of his release, however, Jerry died unexpectedly. The cause of death was never determined, despite a hospital autopsy, which Linda was told was "just like" a forensics autopsy even though it did not include a toxicology test. Well after her husband's burial, she was horrified to discover that the pathologist that performed the autopsy kept Jerry's heart refrigerated in a hospital morgue where it remains today. Linda, upset when the hospital refused to turn over the heart or provide more information about her husband's cause of death, filed a lawsuit and won nearly two million dollars for medical malpractice in 2010. In the trial this past week, she fought the hospital's appeal as well as a stay of judgment they had issued to keep the heart. Intent on retrieving the heart out of respect for her husband's memory, Linda compared the suit to a search and rescue mission. She explained, “ It’s in the hands of the people that took his life...I don’t want them to have anything that belongs to Jerry. ” Attorneys for Christus argued that the heart cannot be returned because it could possibly be used as evidence—but the court saw no need for the hospital to hold onto it. Christus may yet again appeal. Linda commented, “ Clearly, wrong was done in Jerry’s death...And on top of that, clearly the hospital tried to cover things up. ” She looks forward to the closure that will come once Christus returns the heart, already having selected a box in which to bury it alongside Jerry's body.

See also

• Courtroom Weekly