Medical Malpractice

Appellate Court Determines “Full Disclosure” for Medical Procedure Requires a Discussion of Who Will Be Performing the Procedure

July 18, 2017 | Lebowitz & Mzhen

Many Washington, D.C. medical malpractice cases ultimately come down to whether a doctor adequately informed the patient of the risks involved with a procedure. This is called informed consent. Earlier this month, an appellate court in Oklahoma issued a written opinion in a medical malpractice case dealing with the issue of informed consent. The court had to determine if a patient can give informed consent to undergo a surgery without knowing who will be actually performing the surgery. Ultimately, the court determined that in order for a patient’s consent to be valid, the doctor must inform the patient of anyone who will be performing the significant portions of the procedure.

The Facts of the Case

The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff signed a form indicating her consent to the procedure. The consent form stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” There was also a dedicated section to list who would be assisting with the procedure, but that portion was left blank.

The defendant enlisted the help of a certified nurse with whom she had worked many times in the past. The nurse was not a hospital employee but was an independent contractor hired by the defendant.

Not All Medical Release Waivers Will Be Upheld by the Courts

June 23, 2017 | Lebowitz & Mzhen

Anyone who has ever had a medical procedure or surgery performed has likely been confronted with a medical release waiver. These contracts are designed to limit – or altogether eliminate – a health care provider’s liability in the event something goes wrong during the procedure. While the intention of these contracts is to prevent a patient’s ability to proceed with a medical malpractice case, the reality is that courts often look upon these agreements with disfavor. A recent case out of Florida illustrates how one court struck down one such agreement on the basis that it was too vague.

The Facts of the Case

The defendant was a doctor who performed a spinal fusion surgery on the plaintiff. During the surgery, something went wrong, and the plaintiff’s ureter was severed. The plaintiff filed a medical malpractice case against the doctor, claiming that the doctor’s negligence resulted in his injuries.

Maryland Court Allows Defendant to Admit Evidence of Previously Named Defendants Who Settled with the Plaintiff Out of Court

June 16, 2017 | Lebowitz & Mzhen

Earlier this month, a Maryland appellate court issued a written opinion in a medical malpractice case brought by the surviving loved ones of a man who died while in the care of the defendant doctor. The case required the court to determine if the lower court was proper to allow the defendant doctor to admit evidence that there had previously been other doctors named as defendants, but they all settled the case out of court prior to the case reaching trial. Ultimately, the court concluded that the lower court was proper to allow the evidence, and it affirmed the jury’s verdict in favor of the defendant doctor.

The Facts of the Case

The plaintiffs filed a wrongful death by medical malpractice case against the defendant physician, claiming that he was negligent in the interpretation of X-ray images that eventually led to their loved one’s death. The case was filed against the defendant doctor as well as the three doctors who treated their loved one after the defendant. The cases against the three other doctors were all settled out of court.

At trial, the one remaining doctor wanted to explain to the jury that there had originally been four named defendants, but three of them had settled the cases against them. The defendant doctor also wanted to claim that these non-present parties were the ones who were ultimately responsible for the plaintiffs’ loss. The plaintiff filed a motion to prevent the defendant from discussing the non-present parties, but the trial court denied the plaintiffs’ motion and allowed the evidence. The jury returned a verdict in favor of the defendant.

Court Applies Burden-Shifting Analysis in Medical Malpractice Case Where Foreign Object Is Left in Plaintiff’s Body

March 21, 2017 | Lebowitz & Mzhen

Earlier this month, one state’s supreme court issued an opinion in a medical malpractice case alleging that the defendant hospital was responsible for leaving a four-inch piece of tubing in the plaintiff’s body after a surgery. The case required the court to discuss the burden-shifting framework applicable in foreign-object cases, ultimately holding that the framework should apply in all cases of foreign objects being left in a patient’s body, and not just in those cases where the plaintiff cannot recall who left the object in his body.

The Facts of the Case

The plaintiff was admitted to the defendant hospital for a colon resection surgery after it was discovered that he had several cancerous polyps. The surgery went as planned, and afterwards some drainage tubing was placed into the plaintiff’s body to help get rid of extra post-surgical fluids.

Prior to his discharge, a nurse came to remove the tubing. She pulled the tubing out, discarded it, and then sent the plaintiff home. Four months later, the plaintiff returned with complaints of pain in the area where the tubing had been. It was subsequently discovered that there was approximately four inches of tubing left in his body. Another surgery was scheduled and performed to remove the tubing.

Appellate Court Upholds $21 Million Verdict in Medical Malpractice Case

February 2, 2017 | Lebowitz & Mzhen

Earlier this month, a Georgia appellate court issued an opinion that upheld a jury verdict of upwards of $21 million in a medical malpractice case. In upholding the jury’s liability and damages determinations, the court rejected all of the defendant doctor’s claims of error below. As a result of the court’s ruling, the plaintiff will receive the award as delivered by the jury.

The Facts of the Case

The plaintiff was the surviving spouse of a woman who died while undergoing a medical procedure that was conducted by the defendant doctor. The plaintiff’s wife was seeing the defendant doctor for chronic back pain. The doctor recommended she undergo an epidural steroid injection procedure to reduce inflammation and relieve her pain. The procedure consisted of the localized delivery of steroids directly into the spine.

The plaintiff’s wife arrived with her daughter-in-law at 10:00 a.m. She was seen by the nurse at 2:45 p.m., when she was prepped for the procedure. Afterwards, she took a nap while she was waiting for the procedure to begin. Immediately before the procedure, she was provided fentanyl and versed, which were to help with any pain and assist in relaxation. The procedure began at 5:45 p.m.

Court Reverses Defense Verdict in Medical Malpractice Case Due to Inadmissible Expert Testimony

November 30, 2016 | Lebowitz & Mzhen

Earlier this month, a federal appellate court issued a written opinion in a medical malpractice case, reversing the jury’s verdict in favor of the defendant and ordering the lower court to conduct a previously overlooked analysis. In the case, Hall v. Flannery, the court reversed the jury’s verdict based on the fact that the defendant’s expert witness did not possess the proper training and experience to offer expert testimony on the subject on which he testified.

The Facts of the Case

The plaintiff’s 17-year-old child passed away three days after having a surgery to repair a skull injury she sustained as a child. The exact circumstances of the girl’s death were uncertain. However, the medical examiner determined that a seizure was the likely cause of death. After her daughter’s death, the plaintiff filed a medical malpractice lawsuit against the doctor who performed the surgery, claiming that her daughter should have been prescribed anti-seizure medication prior to being discharged from the hospital.

The defendant notified the court that several expert witnesses would testify on his behalf. In response to the designation of the defendant’s witnesses, the plaintiff filed a motion asking the court to limit the experts’ testimony. Specifically, the plaintiff wanted to prevent the experts from testifying as to the cause of death. The plaintiff claimed that the experts did not have sufficient qualifications to make that determination.

Appellate Court Finds Sufficient Evidence to Uphold Plaintiffs’ Verdict in Medical Malpractice Case

October 12, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Idaho issued a written opinion affirming a jury’s verdict in favor of the plaintiffs, finding that there was sufficient evidence to support the verdict. In the case, Hoffer v. Shappard, the court affirmed the jury’s determination that the defendant doctor was liable for the injuries sustained by the plaintiffs’ daughter after she was misdiagnosed by the defendant doctor.

The Facts of the Case

The plaintiffs’ daughter was born five weeks before she was due. For the first six weeks after her birth, various doctors treated the girl and did not notice anything wrong with her. However, her mother took her to one of the defendant doctors when the girl was two months old for a regular check-up. That doctor saw the girl for five visits in total.

During the visits, the plaintiffs expressed concern that their daughter had an asymmetrical skin fold, had one leg that was significantly longer than the other, and walked on her “tippy toes.” The defendant doctor dismissed the plaintiffs’ concerns, telling them that it was normal for a child under two years old.

Application of the “Discovery Rule” in Medical Malpractice Cases May Require a Judge or Jury to Determine Exactly When the Statute of Limitations Began to Run

October 4, 2016 | Lebowitz & Mzhen

Earlier last month, one state’s supreme court issued a written opinion in a medical malpractice case that was dismissed by the lower court because that court determined it had been filed after the applicable statute of limitations. The court also held that the “discovery rule” did not apply in wrongful death cases caused by medical malpractice. However, the court hearing the appeal in the case of Moon v. Rhode held that the the discovery rule does apply and that the lower court failed to make a factual finding as to when the statute of limitations began to run. Therefore, it was an error to dismiss the case.

The Facts of the Case

The plaintiffs were the surviving family members of a 90-year-old woman who died while under the care of the defendant doctors. After the woman’s death on May 29, 2009, the plaintiffs submitted a request for medical records, had them reviewed by an expert, and was told that there was more that the doctors could have done to treat their mother. During the course of the plaintiffs’ investigation, an MRI was conducted, after which it became apparent that there may have been another doctor who was also partially responsible for their mother’s death. However, this discovery was made after the two-year statute of limitations had expired. The plaintiffs filed the lawsuit nonetheless.

The defendants argued that the two-year statute of limitations should start from the date of the plaintiffs’ mother’s death. They argued that there was enough evidence present at that time to put the plaintiffs on notice that there could be a potential medical malpractice or wrongful death lawsuit. The plaintiffs, on the other hand, claimed that the only way they could possibly know about the facts giving rise to the case was after reviewing the MRI. The plaintiffs argued that since they could not have discovered the potential lawsuit until their review of the MRI, the statute of limitations should not have started until they were made aware of the MRI results.

Continuing Course of Treatment Doctrine May Extend Statute of Limitations in Some Maryland and Washington, D.C. Medical Malpractice Cases

September 20, 2016 | Lebowitz & Mzhen

All medical malpractice lawsuits must be brought within a certain amount of time. This is generally known as the statute of limitations. In most cases, if a plaintiff files a case after the statute of limitations expires, the court must dismiss the case. However, there are certain exceptions to this rule that may allow a plaintiff to file a medical malpractice lawsuit after the applicable statute of limitations has technically run out.

The Continuing Course of Treatment Doctrine

In both Maryland and Washington, D.C., plaintiffs who allege medical malpractice against a doctor must bring that lawsuit within a certain number of years from the date of the injury or the date that they discovered the injury. However, if the same doctor continues to provide treatment for the same condition, the statute of limitations may not begin to run until that treatment stops. A recent example of the continuing course of treatment doctrine arose in the case of Parr v. Rosenthal.

The Facts of the Case

The plaintiffs’ son was born with a large bump on the back side of his calf. It took a few years to diagnose, but it was eventually determined in 2003 that the bump was a desmoid tumor, which is a rare but benign tumor that can grow to such a size that it may impair bodily function. In fact, the tumor did begin to alter the boy’s gait, and the parents discussed the removal of the tumor with the team of doctors treating their son.

State Appellate Court Permits Expert Testimony by Foreign Doctor in Medical Malpractice Case

September 13, 2016 | Lebowitz & Mzhen

The California Court of Appeals recently published an opinion reversing a lower court ruling favoring the defendant in a medical malpractice lawsuit. The trial court had granted summary judgment to the defendant and disposed of the plaintiff’s claim by ruling that the plaintiff’s proposed medical expert, who was a licensed physician in Mexico but not the United States, could not offer testimony in support of crucial elements of the plaintiff’s case. Since the appellate court has reversed the lower ruling, the plaintiff’s lawsuit will proceed toward a trial or settlement of her claim.

The Plaintiff Suffers Worsening Symptoms After Having a Surgery Performed by the Defendant

The plaintiff in the case of Borrayo v. Avery is a woman who sought treatment from the defendant in 2009 for chronic pain in her right shoulder and arm. She was diagnosed with thoracic outlet syndrome, which was said to be the result of repetitive stress on her joints from her history of working in clothing production. In September 2009, the defendant performed a surgery on the plaintiff, removing one of her ribs to alleviate her symptoms and treat the diagnosed condition. According to facts discussed in the appellate opinion, the plaintiff’s symptoms failed to improve, and she developed new medical problems approximately one year after the procedure. Based on her worsening condition, the plaintiff filed a medical malpractice lawsuit against the defendant in November 2012.