Different types of personal injury cases have different procedural requirements. For example, medical malpractice cases in most jurisdictions require that the plaintiff provide some affidavit or other expert opinion explaining that the plaintiff’s case has merit in the expert’s opinion. Medical malpractice cases also often have shorter statutes of limitations than other cases brought under a theory of negligence. If a plaintiff fails to comply with these requirements, the case may be thrown out by the court before reaching trial.

ParamedicA recent case in front of a California appellate court shows, however, that not every negligence case involving a medical professional should be subject to the heightened medical malpractice requirements.

Aldana v. Stillwagon:  The Facts

Aldana was involved in a serious accident when she was struck by Stillwagon, who was an on-duty paramedic on his way to the scene of an accident. Aldana then filed a lawsuit against Stillwagon under a theory of negligence, claiming that Stillwater’s negligence in operating his vehicle resulted in her injuries.

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Earlier this month, an appellate court in Idaho issued an opinion in a medical malpractice case that illustrates how strictly courts construe statutes of limitations in medical malpractice cases. In the case, English v. Taylor, the court determined that the plaintiffs’ amended complaint, rather than the motion for leave to amend the original complaint, was what “commenced” the case. Since this filing of the amended complaint was past the allowable time under the statute of limitations, the case was dismissed as untimely.

CalendarThe Facts of the Case

Mrs. English suffered a stroke while undergoing surgery at the defendant’s facility. A little less than two years after her stroke, the Englishes filed a strict product liability case against the manufacturer of one of the medical devices involved in the surgery. At this time, neither the medical facility nor the doctor was named in the lawsuit.

One day before the two-year statute of limitations was set to expire, the Englishes asked a medical review panel to review the performance of the doctor who conducted the surgery. This effectively paused the time from running under the statute of limitations and added 30 days after the review was complete to the allowable time to file. During those 30 days, the Englishes filed a motion asking the judge to allow them to add the doctor and the medical facility as additional parties. That motion was granted.

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Under a product liability theory, manufacturers can be held liable for dangerous products that they release into the stream of commerce. However, not only can manufacturers be held liable, but also retailers and distributors may be held liable under certain circumstances. When a court considers a product liability case, there are several factors that may come into play, as was evidenced by a recent case in front of the Eighth Circuit Court of Appeals.

LawnmowerParks v. Ariens:  The Facts

Parks was fatally injured when the riding lawnmower he was operating rolled while Parks was negotiating a sloped surface. Parks’ wife then filed a product liability case against the dealer who had sold her husband the lawnmower, arguing that the dealer was negligent in failing to supply the mower with a roll cage and seatbelt.

The defendant answered the claim by explaining that it was not his duty to supply the roll cage and seatbelt. Indeed, the defendant presented evidence that it was his normal practice to ask customers if they want to purchase the roll cage and seatbelt as optional equipment at an additional cost. While there was no documentation that Parks turned down this offer, the dealer explained that it was his normal practice to explain this to his customers, and he could not recall anything different occurring in this case.

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Over the course of the last few years, General Motors has recalled over 26 million vehicles, spanning over 55 models. This series of recalls, the largest in U.S. history, covers all but three of GM’s main vehicle models. Many of the vehicles that were recalled had serious problems with the ignition switch. Indeed, it is difficult to gauge exactly how many deaths have been caused by the ignition switch problem, but by most estimates the number is well over 100.

Car KeysWhat makes this recall extraordinary is not just the volume of vehicles recalled but also the fact that there is evidence suggesting GM knew about the dangers of the ignition switches but failed to do anything. This has led to a series of personal injury cases that, according to GM’s own estimates, will cost the company about $2.5 billion. It cost the company so much, in fact, that GM actually entered a form of bankruptcy.

According to a recent news article covering the bankruptcy, under an appellate court’s decision, accident victims’ claims against the “new” GM may be viable despite GM’s assertion that the claims dissolved along with the “old” GM. The court had to decide several important questions of law, just one of which was:  what happens to the claims filed by all those people who were injured by faulty ignition switches? Should those claims be dismissed because the corporation that manufactured the vehicle is technically no longer in existence? Or should the claims be able to be asserted against the new GM corporation?

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Earlier this month, an appellate court in Michigan decided an interesting case involving the type of evidence that is sufficient to survive a summary judgment challenge by the defense in a slip-and-fall case arising from an allegedly uneven sidewalk. In the case, Bernardoni v. City of Saginaw, the court held that photos taken 30 days after the woman’s injuries were insufficient to prove the dangerous condition of the sidewalk on the day of her injury.

Sidewalk

The Facts of the Case

Ms. Bernardoni was walking on the sidewalk in Saginaw, Michigan when she tripped and fell. Upon inspecting the sidewalk when she got up, she noticed that there was a 2.5-inch differential in the height between two adjacent slabs on concrete, creating the “lip” on which she had tripped. She filed a premises liability lawsuit against the local government, seeking monetary compensation.

In response, the government asked the court to dismiss the case based on the immunity it possesses under state law. Specifically, the government pointed to the state statute that requires anyone suing based on a dangerous sidewalk to prove that the government knew of the dangerous condition for at least 30 days prior to the accident.

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Earlier this month, a federal appellate court in California affirmed a lower court’s decision in a product liability case involving an allegedly defective door-knob guard that the plaintiffs claimed was responsible for their young son’s death. In the case, Coterel v. Dorel Juvenile Group, the court determined that even if the plaintiffs were correct, and the challenged evidence should not have been submitted to the jury, the effect of including the evidence had only a speculative effect, and reversal was not therefore required.

Open DoorThe Facts of the Case

The defendant manufactured a door-knob cover marketed to parents of young children who are tall enough to reach door knobs but may not know better than to open the door and walk out of the house. On the day in question, the plaintiffs placed the defendant’s door-knob cover on the front door of their home and placed their young son in bed in his crib. Evidently, the young boy escaped his crib, approached the front door, negotiated the door knob cover, and then walked out the front door of the house. Tragically, the boy was later found dead in a pond.

The parents of the boy filed a product liability case against the manufacturer of the cover, alleging that the product was defective. At trial, the defendant presented evidence that the parents knew their son had been able to negotiate the cover, and they had installed a chain lock on the door as well. However, on the day in question, the plaintiffs failed to use the chain lock.

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Earlier this month, a state appellate court issued a written opinion discussing how the “public duty” doctrine can act to prevent a plaintiff from suing a government agency for alleged acts of negligence stemming from a breach of a duty owed to the general public. In the case, McFarlin v. State, the court determined that the state owed a general duty to maintain the lake where the accident occurred in a safe condition. Because there was no evidence that there was some additional duty owed to the plaintiff, the public duty doctrine prevented government liability.

Cityscape on WaterThe Facts of the Case

Ms. McFarlin’s young son was on a boat being operated by her boyfriend on a lake that was owned and operated by the state. Shortly after embarking, McFarlin’s boyfriend drove the boat near two “danger” buoys that were marking a shallow dredge pipe. The boat came too close to the pipe, struck it, and flipped over. As a result, McFarlin’s young son died.

McFarlin sued the state, alleging that it was negligent in the placement of the buoys, the placement of the pipe, and that the pipe was not adequately marked. The state took the position that it was not liable because it did not violate any duty owed to the plaintiff. Specifically, the state claimed that the duty to keep the lake safe was owed to the general public, and that there was nothing establishing that it owed the plaintiff a duty above and beyond that which was owed to the public. Because of that, the public duty doctrine prevented the state from being found liable.

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The Connecticut Supreme Court recently released a decision affirming a lower appellate court’s ruling that allowed a plaintiff’s medical malpractice case to proceed despite the fact that the plaintiff’s claim was not filed within the three-year statute of limitations for filing a medical malpractice claim in the state. The appellate rulings applied the “continuing course of treatment doctrine” to expand the statute of limitations and allow the plaintiff to pursue her claim.

As a result of the most recent appellate ruling from the highest state court in Connecticut, the plaintiff’s claim will return to the trial court and proceed toward a settlement or trial regarding her claim for damages.

SurgeonThe Defendant Left a Sponge Inside the Plaintiff’s Body During A Surgery, Causing Serious Pain and Discomfort

The plaintiff in the case of Ceferatti v. Aranow is a woman who had been receiving treatment by the defendants for her morbid obesity, which included a gastric bypass surgery that was performed in December 2003. According to the facts explained in the most recent appellate ruling, the defendant doctor inadvertently left a synthetic sponge inside the plaintiff’s abdominal cavity during the surgery. Although the plaintiff testified that she felt pain from the sponge about one year after the surgery, she did not discover the sponge until undergoing an unrelated CT imaging procedure over five years after the gastric bypass surgery. Approximately one year after discovering that the sponge had been left inside her, she filed a medical malpractice action against the defendants.

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Earlier this month, a Michigan court issued an interesting opinion regarding the admissibility of evidence in a medical malpractice case. In the case, Rock v. Crocker, the appellate court held that there is a very specific manner in which lower courts should approach questions of evidence admissibility, and since the court below applied the law in the wrong manner, the case was remanded to give the lower court the opportunity to do so correctly.

Open BookThe Facts of the Case

Crocker, the plaintiff, had ankle surgery performed by the defendant in 2008. Shortly after the surgery, the defendant advised Crocker he could put weight on his ankle without a problem. However, Crocker did not put weight on the ankle and continued to allow it to heal. Just a few months later, however, Crocker required an additional surgery because the defendant allegedly failed to fuse all the necessary bones during the first surgery. Upon hearing this, Crocker filed a medical malpractice lawsuit against the defendant.

At trial, Crocker presented an expert who testified that the defendant was negligent in failing to use enough screws to connect the bones and also in advising that Crocker can put weight on his ankle too early after the surgery. However, the expert also testified that these failures did not cause any injury to Crocker. The plaintiff acknowledged that the expert’s testimony did not prove causation – i.e., that the defendant’s negligence resulted in his injuries – but argued that it was relevant to the defendant’s general competence as a surgeon. The court agreed and allowed the expert’s testimony to be considered.

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Earlier this month, an appellate court in California issued an opinion in a case brought by the father of a boy who died after he sustained a traumatic brain injury when he fell off his skateboard after hitting a lip around a manhole cover. In the case, Bertsch v. Mammoth Community Water District, the court held that the doctrine of “assumption of the risk” prevented the boy’s father from successfully seeking compensation for his loss.

SkateboarderThe Facts of the Case

The plaintiff took his two boys on a trip to Mammoth County to enjoy a friend’s condo for a few days. While there, the plaintiff’s sons were out skateboarding around the neighborhood before they were going to meet back up and all go rock climbing. The boys were not performing any tricks, but they did push themselves up a hill so that they could enjoy the long, fast ride down to meet their dad.

Tragically, on the way down the hill, one of the boys’ skateboards hit a lip surrounding a manhole cover, causing the skateboard to come to a complete stop. The young boy flew off the board, striking his head on the pavement as he landed. He suffered a traumatic brain injury and shortly afterward passed away.

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