Medical Malpractice

Medical Malpractice Case Dismissed on Timeliness Grounds for Failure to Name Additional Defendants in Time

August 15, 2016 | Lebowitz & Mzhen

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.

The 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.

State Supreme Court Expands Statute of Limitations in Medical Malpractice Case

July 5, 2016 | Lebowitz & Mzhen

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.

The 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.

Evidentiary Issues in Maryland Medical Malpractice Cases

June 22, 2016 | Lebowitz & Mzhen

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.

The 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.

Court Finds Post-Mortem Misconduct Falls under Medical Malpractice Umbrella and Must Comply with Applicable Procedural Requirements

June 1, 2016 | Lebowitz & Mzhen

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.

The 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.

Joan Rivers’ Family Reaches Confidential Settlement with Doctors and Medical Clinic

May 23, 2016 | Lebowitz & Mzhen

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.

A 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.

Doctors Must Obtain Informed Consent Before Performing Any Operation or Procedure

May 9, 2016 | Lebowitz & Mzhen

Doctors hold a very trusted position in society. In part, this is because they have tremendous power to cure diseases and ailments through a variety of means, one of which is surgery. However, surgery also presents a significant amount of risk in many situations. And before a doctor can perform any kind of surgery, operation, or procedure on a patient, that doctor needs to obtain informed consent from the patient after explaining to the patient all the risks involved with having the procedure done. If informed consent is not obtained by a doctor, and a procedure does not cure the patient’s condition or makes it worse, the doctor may be liable under a theory of medical malpractice, specifically medical battery.

One Recent Example of a Medical Battery Claim

Earlier this month, a Hawaii appellate court issued an opinion allowing a plaintiff’s medical battery case to proceed against a defendant surgeon on the basis of the surgeon’s failure to obtain informed consent to perform the surgery. In the case, Garcia v. Robinson, the plaintiff underwent a back surgery at the advice of the defendant surgeon. However, the surgery did not go as planned.

According to the court’s written opinion, the plaintiff had suffered a back injury at work and was seeking treatment. He consulted with the defendant doctor, who, according to the plaintiff, told him that if he elected to have a specific surgery he would no longer experience pain in his back and would be “up and dancing” within three days. The doctor denied telling the plaintiff that he would be pain-free after the surgery, explaining that such an assessment would be preposterous, since back surgery is some of the most painful surgery to undergo. The surgeon also presented the court with a form he claimed to have provided to the plaintiff, explaining that the surgery may not be successful and that it could actually worsen his condition.

Birth Injury Plaintiff’s Failure to Timely Serve Defendant Nearly Results in Dismissal

February 22, 2016 | Lebowitz & Mzhen

Earlier this month, one state’s supreme court issued a written opinion in a birth injury case that had been dismissed by the lower court because the plaintiff failed to serve the defendant with notice of the lawsuit in a timely manner. In the case, Collins v. Westbrook, the plaintiff was a mother suing the defendant doctor for the wrongful death of her still-born daughter. The court ultimately held that, although the defendant was never served, the plaintiff showed “good cause” justifying the failure, and the case should not be dismissed on that basis.

The Facts of the Case

The defendant was the plaintiff’s treating physician during her pregnancy, which resulted in a still birth. The plaintiff then filed suit against the defendant doctor, alleging that his negligence was the cause of her child’s still birth. As is required by the rules of procedure, the plaintiff set out to serve the defendant with notice of the lawsuit. The applicable rule requires notice to be provided within 120 days.

The plaintiff’s attorney charged his assistant with serving the defendant. However, shortly before the 120 days had elapsed, her attorney realized that the assistant had not effectuated service due to “great personal problems.” The attorney then hired a professional process server to track down and serve the defendant.

Medical Malpractice Case Dismissed for Failure to Comply with Medical Expert Requirements

February 15, 2016 | Lebowitz & Mzhen

Earlier this month, a state supreme court issued an opinion in a medical malpractice case, preventing a plaintiff’s case from moving forward based on the plaintiff’s failure to comply with the state’s medical expert requirement in medical malpractice lawsuits. In the case, Easterling v. Kendall, the court did not allow or consider the plaintiff’s medical expert’s testimony because it was not properly disclosed during pre-trial discovery.

The Facts of the Case

The plaintiff was a young girl who suffered a fall at a local YMCA. When emergency personnel arrived, she was vomiting, had numbness in her left arm, and suffered from a severe headache. She was taken to the hospital, where the defendant doctor determined that the girl had hit her head and that she had suffered a concussion. He provided her with anti-nausea medication and sent her home.

The next day, the girl was re-admitted to the hospital. She complained of a severe headache and uncontrollable twitching. The radiologist on duty performed an MRI and discovered that the girl had actually suffered from a dissection of the right internal carotid artery, rather than a concussion. The attending physician determined that the girl had suffered a stroke in the past six hours. She was transferred to a more specialized hospital, where she remained in the hospital for almost a month. The girl, through her parents, sued the treating physician, arguing that had the physician properly diagnosed the girl with a dissection of the right internal carotid artery in the first place, she would not have suffered the permanent neurological damage she did.

Court Holds Hospital Slip-and-Fall Accident Does Not Trigger Medical Malpractice Requirements

January 4, 2016 | Lebowitz & Mzhen

Earlier last month, one state supreme court handed down an opinion distinguishing accidents that occur at a hospital but do not involve a breach of a professional medical duty from actions brought under a theory of medical malpractice. In the case, Galvan v. Memorial Hermann Hospital System, the plaintiff was a woman who was injured when she slipped and fell while visiting a loved one in the defendant’s hospital.

According to the court’s written opinion, the plaintiff was walking from the hospital’s pharmacy to her loved one’s room when she slipped and fell after stepping in a puddle of water that had formed outside the door to a restroom. The plaintiff filed suit against the hospital under a premises liability theory.

The Pre-Trial Motion for Summary Judgment

The hospital claimed that, since the injury occurred at a hospital, the heightened requirements of a medical malpractice lawsuit applied. Specifically, the plaintiff in this case did not submit an expert’s affidavit supporting her position. Thus, in a pre-trial motion, the hospital asked the court to dismiss the lawsuit because the plaintiff failed to comply with a necessary procedural requirement that applies to all medical malpractice lawsuits.

How to Tell Whether You Have Been the Victim of Medical Malpractice

December 15, 2015 | Lebowitz & Mzhen

Doctors, nurses, and other medical professionals are charged with the venerable duty to keep their patients healthy to the best of their ability. Of course, sometimes there is nothing that a medical professional can do to prevent illness or death, since it is the inevitable course of the human existence. However, sometimes the treatment that a medical professional provides raises questions, such as did the doctor do everything he could to diagnose the condition in time for effective treatment? Or was the patient adequately informed of the risks of the procedure prior to agreeing to go through with it?

In these cases, there may be a viable medical malpractice action against the medical professional. However, it is well known that these cases are complex and often involve expert testimony. For that reason, it is best to get an experienced medical malpractice attorney involved early in the process, preferably as soon as the patient notices that there may be something wrong.

A successful medical malpractice case requires, among other things, that the patient prove that the care provided by the medical professional fell below the accepted professional standards in the industry. Often, this is where the bulk of litigation occurs.