Articles Posted in Medical Malpractice

Earlier this month, a Vermont appellate court issued a written opinion in a wrongful death by medical malpractice case, involving allegations that a doctor was negligent in prescribing multiple doses of opioid medications to a patient who later died from ingesting a lethal combination of prescription and non-prescription medication. However, the court did not reach the issue of whether the doctor was negligent because the plaintiff failed to file the required certificate of merit in a timely fashion. As a result of the plaintiff’s failure to file the certificate of merit, the case was dismissed.

Blister PacksThe Facts of the Case

The plaintiff was the surviving loved one of a woman who had died after she ingested a lethal combination of prescription and non-prescription medication. The prescription medication that the woman had taken was prescribed to her by the defendant physician. After learning about her loved one’s cause of death, the plaintiff filed this wrongful death lawsuit against the prescribing physician.

The case was filed three days before the statute of limitations was set to expire. However, when the plaintiff filed her case, she did not attach a certificate of merit, which is a document certified by another doctor or medical expert stating that, in the expert’s opinion, the plaintiff’s case has merit.

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Earlier this month, an appellate court in Georgia issued a written opinion in a medical malpractice lawsuit, affirming the dismissal of the plaintiff’s claims based on the plaintiff’s failure to establish that the defendants’ allegedly negligent actions caused the plaintiff’s injuries. Specifically, the court held that since the medical experts called by the plaintiff could not testify to a reasonable degree of medical certainty, their opinion failed to establish causation.

Operating RoomThe Facts of the Case

The defendant was scheduled to have a robotic-assisted laparoscopic prostatectomy (RALP), which was to be performed by the defendants. On the day of the surgery, the plaintiff was positioned with his hands placed behind his back. During the surgery, none of the defendants repositioned the plaintiff’s body, and the surgery was completed after about 9.5 hours.

After the surgery, the plaintiff complained of pain in both of his shoulders and arms. He was later diagnosed with compartment syndrome in his right arm. A subsequent surgery was performed to relieve the pressure, but the plaintiff never regained the full use of his right arm.

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All personal injury plaintiffs must follow strict procedural rules when filing their case. However, medical malpractice cases in particular are subject to a different set of rules that, if ignored, may result in the early dismissal of an otherwise meritorious case. For example, medical malpractice cases in Maryland must be accompanied by a “Certificate of Merit.” A certificate of merit is a document filled out by a medical professional in the field of the alleged negligence, stating that there is a valid basis for the plaintiff’s case.

Exam RoomIn addition, Maryland medical malpractice cases are required to be brought with a certain period of time. In most cases, this is within three years of the alleged act of negligence. However, if a patient does not discover their injury until a later date, the patient has up to five years to file their case. In any event, the procedural rules in Maryland medical malpractice cases can be burdensome for plaintiffs and may even result in the dismissal of cases.

Doctors and hospitals are aware of these strict rules, and they may try to characterize any case even tangentially involving a doctor or hospital as a medical malpractice case in hopes of creating additional difficulties for the plaintiff. A recent case illustrates how a slip-and-fall accident was characterized as a medical malpractice case by a state appellate court.

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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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