Articles Posted in Medical Malpractice

Earlier last month, an appellate court in California issued a written opinion in a medical malpractice case that illustrates how important it is for parties to object to perceived errors as they occur. In the recent case, the court held that a defendant hospital’s failure to object to the plaintiff’s untimely payment of a mandatory filing fee prevented the court from reviewing the defendant’s claim on appeal that the untimely payment deprived the court of jurisdiction.

Wall ClockThe Facts of the Case

The plaintiff was the surviving loved one of a man who had become quadriplegic and then died after being treated at the defendant hospital. Initially, the man himself brought a lawsuit against the hospital, alleging that the hospital was responsible for his quadriplegia. However, while the jury determined that the hospital was negligent in treating the man, it also found that the hospital’s negligence was not the cause of the man’s quadriplegia.

Shortly after the initial trial, the man died. After his death, additional evidence was discovered indicating that the hospital’s negligence may have actually been the cause of the man’s quadriplegia and subsequent death. The current plaintiff was then named the plaintiff, and the case was changed to a wrongful death case. As a part of this process, the plaintiff was required to pay court filing costs by a certain date.

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Earlier this month, one state’s appellate court issued a written opinion in a plaintiff’s case against the hospital where he was injured when he fell off a gurney while being transported. In the case, Nava v. Saddleback Memorial Medical Center, the court determined that the plaintiff’s injury was “related to” his medical care, and therefore he should have complied with the stricter one-year statute of limitations. Since the plaintiff filed his lawsuit after the one-year period, he will not be entitled to compensation for his injuries.

Hospital BedThe Facts

Nava was a patient at Saddleback Memorial Medical Center. One day in February 2012, when hospital staff was transporting Nava, the gurney he was being carried on tipped to one side, causing Nava to fall onto the floor. As a result of the fall, Nava suffered fractures to his clavicle and patella.

In February 2014, a few days before the two-year anniversary of his injury, Nava filed a personal injury lawsuit against the hospital. In his jurisdiction, the statute of limitations for ordinary negligence was two years, so Nava thought his lawsuit was timely. However, the statute of limitations for medical malpractice lawsuits was one year. In response to the case filed against it, Saddleback argued that the case should be considered a medical malpractice lawsuit, and it was filed too late.

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Earlier this summer, the Nebraska Supreme Court ruled that a land surveyor was not liable for injuries suffered by a man who tripped and fell on a wooden stake used to mark the property’s boundaries. The stake was tied with a ribbon and stood approximately one foot above the ground. The stake, which was one of four marking the property, was visible to the naked eye.

Surveying ToolsIn ruling for the defendant, the court found that land surveyors are “professionals” and thus subject to professional negligence laws, which require that professionals perform their services with reasonable care. However, the court also found that the surveyor in this case did not owe the plaintiff a duty to act with reasonable care, since the surveyor was hired by a third party, rather than the plaintiff. The plaintiff owned the property in question, but the surveyor was hired by the prospective buyers of the property, who wanted to know the property’s exact boundaries prior to the purchase.

A Professional’s Duties in Maryland

In Maryland, individuals and companies hired to perform professional services also owe their customers a duty of reasonable care. Professionals who are required to meet this standard include architects, engineers, lawyers, dentists, and doctors, to name a few.

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Earlier this month, an appellate court in Idaho heard a medical malpractice appeal brought by the husband of a woman who had died from a serious infection she developed after being treated by the defendant doctor. In the case of Ballard v. Kerr, the court ultimately dismissed the defendant’s appeal and upheld the jury’s verdict in favor of the plaintiff for approximately $3.75 million.

Hospital RoomThe Facts of the Case

Ms. Ballard went to the defendant’s cosmetic clinic for a procedure that would remove fat from her stomach and deposit it in her buttocks. Prior to her procedure, she consulted with the defendant, who explained that she would be a good candidate for the procedure. However, shortly after the procedure, Ms. Ballard began experiencing “immense pain” in her buttocks. Initially, the defendant doctor did not see any signs of infection, but he provided Ms. Ballard with antibiotics just in case.

A few days later, she awoke in the middle of the night, asked her husband to call 911, and was hospitalized. She was only in the hospital a short time before her respiratory and renal systems began failing. She was placed on life support but died a short time later.

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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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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, the Texas Supreme Court issued a written opinion broadly interpreting what constitutes a medical malpractice claim, holding that a hospital’s alleged fraud in obtaining consent to perform a private autopsy was subject to the additional procedural requirements of a medical malpractice action. In the case, Christus Health Gulf Coast v. Carswell, the court dismissed the plaintiffs’ claim because it was filed after the applicable two-year statute of limitations for medical malpractice lawsuits.

ContractThe Facts of the Case

The Carswells alleged that the defendant nursing home was negligent in the care it provided to their loved one, which ultimately led to his untimely death in 2004. These claims were filed about a year after the death of their loved one, in compliance with the state’s medical malpractice statute.

In addition, the family claimed that the nursing facility fraudulently obtained the family’s consent to conduct a private autopsy so that the facility could determine their loved one’s cause of death. However, these claims were only raised in the family’s third amended complaint, which was filed nearly three years after the death of their loved one.

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Back in 2014, actress and comedienne Joan Rivers died while undergoing a routine medical procedure in a New York clinic. The 81-year-old was suffering from some minor symptoms when she visited the defendant clinic for what was supposed to be a quick procedure. According to a recent New York Times article, the family of Rivers accepted a confidential settlement offer, and, as a result, the case against the doctors allegedly responsible for Rivers’ death will not go to trial.

Medical InstrumentsA Routine Endoscopy Gone Wrong

Back in August 2014, Rivers visited Yorkville Endoscopy, complaining of a hoarse voice and a sore throat. The medical staff on duty suggested Rivers undergo a laryngoscopy and an endoscopy so that doctors could see what was causing her discomfort.

During the procedure, several doctors were present. One doctor in particular was concerned that Rivers’ vocal cords were extremely swollen and alerted senior doctors of her observation. Other doctors dismissed this doctor as “paranoid” and continued with the procedure. Fearful that she might be blamed for anything that went wrong during the procedure, that doctor then began taking copious notes that were later passed to the plaintiffs during the discovery phase of the case.

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