Medical Malpractice

Court Holds that Medical Battery Claim Constitutes a Medical Malpractice Claim and Must Meet Heightened Requirements

August 23, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Nevada issued an opinion in what turned out to be a medical malpractice case, although the plaintiff filed the case as a battery case. In the case, Humboldt General Hospital v. Sixth Judicial District Court, the appellate court hearing the case determined that the lower court should have dismissed the plaintiff’s case because she failed to comply with the requirements of a medical malpractice case.

The Facts of the Case

Ms. Barrett had an intrauterine device (IUD) implanted in her body at the defendant hospital. About one year after the procedure, the hospital sent a letter to Barrett, explaining that the IUD implanted in her body had not been FDA-approved. As it turns out, the IUD was made in the same facility as the FDA-approved devices. However, since it was shipped to Canada prior to its arrival in the U.S., rather than directly to the U.S., the exact device was not approved.

Barrett filed a negligence claim against the hospital, claiming that it had a duty to only use FDA-approved devices. Barrett also filed a battery claim against the hospital, claiming that the hospital should have known that she would not consent to a non-approved device being implanted in her body. She did not file any expert affidavit or any other supporting documentation because she saw this not as a medical malpractice case but as a battery case.

Statute of Repose Bars Medical Malpractice Plaintiff’s Case

August 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Alabama decided a case discussing how a statute of repose can prevent a plaintiff’s case from proceeding forward to trial, even if the evidence against the defendant is very strong. In the case, Cutler v. University of Alabama Health Services Foundation, the court determined that since the plaintiff’s case was filed too late, he would not be permitted to seek compensation for the injuries allegedly caused by the defendant’s failure to tell him he noticed a tumor on his brain.

The Facts of the Case

The plaintiff was involved in a serious motorcycle accident and was taken to the hospital afterward. While at the hospital, he was treated by the defendant doctor, who ordered an MRI to be performed. After looking at the results of the MRI, the doctor told the plaintiff that it looked like a bruise. However, in the doctor’s notes, there was evidence that he found a tumor on the plaintiff’s brain and noted that someone from the neurology department should follow up with the patient.

None of this was conveyed to the plaintiff, and no one followed up with him. It was not until about 10 years later, when he was involved in another car accident, that it was discovered that the plaintiff suffered from a brain tumor. Indeed, that accident was caused when the plaintiff had a seizure that was caused by the brain tumor. Once he found out about the tumor, another doctor determined that it was the same tumor that was present on the previous MRI. The tumor was then determined to be malignant. The plaintiff sued the doctor who ordered the MRI, claiming it was medical negligence to not tell the plaintiff about the tumor.

Family of Victim Not Prevented From Filing Wrongful Death Case Even When Victim Filed Personal Injury Case While Alive

July 27, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Maryland decided a very interesting case involving the parents of a young boy who died after complications involving his birth. In the case, Spangler v. McQuitty, the court determined that although the young boy had successfully recovered compensation for his injuries in a medical malpractice case against the defendants, that did not prevent the boy’s parents from pursing a wrongful death case against the same defendants based on the same conduct.

The Facts of the Case

The McQuittys filed a birth injury case against the defendant doctors after their son was born with the severe condition of cerebral palsy. While the McQuittys were actually the ones who were filing the paperwork, the lawsuit was brought in the name of their son. Ultimately, this case was successful, and their son recovered $5 million for his injuries.

After the boy recovered for his injuries, he passed away from complications related to the injuries he sustained at birth. After their son’s death, the boy’s parents then filed a wrongful death lawsuit against the same defendants, claiming that they were responsible for their son’s death. In response to the allegations, the defendants claimed that they had already been held liable for their negligence in delivering the boy, so they should not be subject to liability again.

State Appellate Court Upholds Dismissal of Malpractice Claim Against Public Hospital

July 6, 2016 | Lebowitz & Mzhen

The New York Court of Appeals, the highest appellate court in the state, recently released a decision that affirmed two lower court decisions dismissing a plaintiff’s medical malpractice claim for the plaintiff’s failure to timely serve a notice of claim on the defendant, as required by statute. The plaintiff’s claim alleged that the defendant provided substandard prenatal care to the plaintiff’s mother while he was in utero, and that the defendants committed additional malpractice while delivering the child, resulting in permanent injury and disabilities. As a result of the most recent court of appeals decision, the plaintiff and his mother will be unable to recover damages for the alleged negligence of the defendant.

The Plaintiff Was Born Prematurely by an Emergency Cesarean Section

The plaintiff in the case of Wally G. v. NY City Health and Hospitals Corporation was born at a hospital operated by the defendant in June 2005. According to the facts discussed in the appellate opinion and an accompanying dissenting opinion, complications arose in the pregnancy, and an emergency cesarean section was performed to deliver the baby prior to the expected delivery date. The complaint filed in the case alleged that the defendant failed to act quickly enough upon noticing the complications of the pregnancy and then negligently failed to treat the fetal distress. As a result of the defendant’s alleged negligence, the plaintiff developed several neurological and cognitive disorders, including cerebral palsy, seizures, and problems with speech.

Plaintiff’s Mother Serves a Notice of Claim After the 90-Day Time Limit

Approximately 18 months after the plaintiff was born, his mother filed a notice of claim with the defendant, stating her intention to seek compensation for the medical malpractice that allegedly resulted in the plaintiff’s injury and disabilities. Under New York municipal law, medical malpractice claims against a public medical provider such as the defendant require a notice of claim to be issued no later than 90 days after the alleged malpractice occurred. After the plaintiff filed the medical malpractice lawsuit against the defendant in 2008, the plaintiff requested the court grant leave to file a late notice of claim, but the court did not grant the motion. Shortly afterward, the lawsuit was dismissed based on the plaintiff’s failure to meet the 90-day notice-of-claim requirement.

Motions for Summary Judgment in Washington, D.C. Courts

May 9, 2016 | Lebowitz & Mzhen

In many personal injury and medical malpractice cases, the bulk of the litigation actually occurs before a case reaches the trial phase. Much of this pre-trial litigation occurs over discovery-related matters, when the parties essentially argue over which evidence will be considered at trial and which evidence should be kept out. After the evidentiary issues have been resolved, either party is free to move for summary judgment based on the evidence presented to the court thus far in the proceeding.

In Washington, D.C., the Rules of Civil Procedure explain that summary judgment is appropriate when “there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Simply put, this means that the party filing for summary judgment is claiming that the other party cannot win the case, even if the court resolves all issues in their favor. The credibility of a witness or document is not at issue in a summary judgment proceeding.

Of course, if the evidence does present an issue of material fact, the moving party cannot legally be entitled to summary judgment, since that issue must be resolved by a fact-finder (either by a judge or jury) at a trial. A recent medical malpractice case out of Indiana illustrates the point well.

Plaintiff’s Medical Malpractice Damages Limited by State Statute

May 2, 2016 | Lebowitz & Mzhen

Earlier this month, an appellate court in Missouri issued a written opinion illustrating how a state’s statute limiting non-economic damages in medical malpractice cases can act to significantly limit a plaintiff’s recovery amount. In the case, Dodson v. Ferrara, the plaintiffs were initially awarded approximately $1.8 million in economic damages and $9 million in non-economic damages after the loss of their loved one. However, due to the state’s cap on non-economic damages in medical malpractice cases, the court reduced the non-economic portion of the award from $9 million to just $350,000.

The Facts of the Case

Ms. Dodson went to the hospital complaining of shortness of breath. Upon arrival, she was initially diagnosed with bronchitis, and a stress echocardiogram was ordered. The results of that test indicated that there might be an abnormality with her heart, so the attending physician ordered a heart catheterization to further investigate.

The defendant, Dr. Ferrara, performed the catheterization. However, during the process, Ms. Dodson’s left main coronary artery was severed, cutting off blood flow to vital portions of her body. The doctor called for assistance. However, it was not until 30 minutes had passed that doctors arrived. They then unsuccessfully attempted to put a stent in the artery. From there, Ms. Dodson was transported to the operating room for emergency surgery. However, once there, the surgery to repair the damaged artery was unsuccessful, and she died as a result.

Court Determines Case Alleging Injury after Improperly Sterilized Surgical Instruments Was Properly Considered a Medical Malpractice Case

April 8, 2016 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Louisiana issued a written opinion in a case involving a man who developed a serious infection after having a routine back surgery performed at the defendant’s hospital. In the case, Dupuy v. NMC Operating Company, the court ultimately determined that the case was properly considered a medical malpractice case, and it was thus subject to the additional procedural hurdles applicable to all medical malpractice cases.

The Facts of the Case

After his surgery, the plaintiff filed a claim against the defendant hospital, alleging that the hospital failed to properly sterilize the tools used during the surgery. The plaintiff sought damages for medical expenses, pain and suffering, mental anguish, loss of earning capacity, disability, and loss of enjoyment of life, and for his wife’s loss of society, support, and companionship.

In response, the hospital explained that it was a qualified medical provider under the state’s medical malpractice statute, and therefore the plaintiff needed to comply with the statute. Since the plaintiff had not complied with the requirement to submit the case to a medical review panel, the defendant argued that the case was prematurely filed.

Medical Malpractice Case Dismissed after Expert’s Testimony Deemed Inadmissible

December 3, 2015 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Alaska heard a case brought by a patient against the doctor and anesthesiologist who performed his open-heart surgery. In the case, Brandner v. Pease, the court ultimately determined that the plaintiff’s failure to provide admissible evidence from an expert required that the case be dismissed.

The Facts of the Case

According to the court’s written opinion, the plaintiff suffered a heart attack in 2009 and had a subsequent open-heart surgery that was conducted by the defendants. From the beginning, there were complications, starting with the fact that it took the anesthesiologist two attempts to intubate the plaintiff. Upon successfully intubating the plaintiff, the anesthesiologist administered propofol to induce anesthesia. After the medication was administered, the plaintiff’s blood pressure dropped, nearly sending him into another cardiac arrest. However, with CPR and additional drugs, his condition was stabilized.

Once the plaintiff was stabilized, the doctor attempted to place a transesophageal echo (TEE) to take images of the plaintiff’s heart for diagnostic purposes. The TEE placement was unsuccessful, but the doctors decided to continue forward with the surgery nonetheless. The procedure was completed, and 12 days later the plaintiff was discharged.

Medical Malpractice Case Dismissed as Untimely After Late Filing

October 14, 2015 | Lebowitz & Mzhen

Earlier this month, the Supreme Court of Mississippi released a written opinion in a case, Thornhill v. Ingram, holding that a medical malpractice plaintiff’s case was untimely because the statute of limitations had run. This left the plaintiff with no way to recover for the injuries he allegedly sustained as a result of the defendant’s negligence.

The Facts of the Case

Back in 2002, one of the plaintiff’s loved ones passed away after being treated by the defendant doctor at the defendant hospital. However, after her treatment at the hospital, the plaintiff’s loved one passed away from a condition that was not diagnosed until it was too late. The plaintiff filed suit against the doctor and hospital.

Eight years later, the case had not gone to trial and was not making significant progress, and the defendants asked the court to dismiss the case for lack of prosecution. The court agreed and dismissed the case without prejudice, meaning that it could be refiled if and when the plaintiff chose to do so.

Ambulance Response Times in D.C Cause Concern

April 14, 2015 | Lebowitz & Mzhen

There have been several recent incidents where slow ambulance response times resulted in seriously injured individuals having to wait a significant amount of time before receiving any type of emergency treatment. One Washington D.C. news source reported that during one week in March there were three incidents where injured people had to wait over 20 minutes before an ambulance arrived.

In the first incident, an injured police officer called for an ambulance. However, it never arrived. Finally, fellow officers ended up taking the injured officer to the hospital. D.C.’s 911 center stated that unfortunately there were no ambulances available when the officer called for assistance. After the fact, the center claimed that generally ambulances should arrive within eight minutes of dispatch.

That same week, a motorcycle crashed into a car and became airborne as it was leaving a garage near 7th and E streets. The man suffered serious injuries, yet ambulances did not arrive until about 22 minutes after they were called to the scene. Finally, an individual was stabbed in southeast D.C. and needed emergency medical treatment. That victim had to wait almost 30 minutes for an ambulance to arrive.