Medical Malpractice

Court Rejects Defendant’s Appeal Based on Plaintiff’s Late Filing Because No Objection Was Made at Time of Alleged Error

Published on: February 16, 2017 | by Friedman, Rodman & Frank, P.A.

“Better late than never” is not always true in the legal world. Sometimes, failing to object to an issue in a case may mean being barred from raising the issue at a later date. In a recent case, one state’s supreme court found a defendant’s claim that the plaintiff’s affidavits were filed late could not be raised on appeal and had been waived.In that case, a man had filed a medical malpractice claim against a hospital, alleging he was mishandled by an occupational therapist during a post-operative stay at the hospital and that he became quadriplegic as a result. The case went to trial, and the jury found the hospital was negligent in caring for the man but that it did not cause his quadriplegia. The man later died, and his wife took his place in the lawsuit.

The wife requested a new trial because her husband’s autopsy purportedly contradicted the jury’s decision on causation. The wife filed required affidavits from experts explaining the significance of the autopsy report, but she failed to pay the required filing fee. Two days later, the court canceled the time stamp and did not process the submissions, at which time the filing date had passed. The next day, the wife’s submissions were stamped as received with the required filing fees, and the affidavits were filed four days later. Importantly, the hospital did not object to the memorandum or affidavits as being untimely at the time. The court then granted the motion for a new trial based on the new evidence.

Court Affirms Dismissal of Multiple Wrongful Death Cases Arising From One Incident

Published on: January 26, 2017 | by Friedman, Rodman & Frank, P.A.

The Supreme Court of Mississippi recently published a decision in which the court found a circuit court appropriately dismissed three wrongful death lawsuits that had been filed by a family member of a man who died while under the care of the defendant doctors and hospital. The three lawsuits were dismissed because they were filed after a separate lawsuit was filed against another doctor based on the same death, and state law only permits one wrongful death lawsuit to be pursued at a time for each death. As a result of the recent ruling, the woman’s claims against all of the defendants not included in her first lawsuit will be difficult or impossible to pursue.

The Plaintiff’s Loved One Allegedly Dies as a Result of Medical Negligence

The plaintiff in this case is a woman who lost a loved one in September 2013. The plaintiff alleged that her loved one’s death was a result of medical negligence and sought relief from the doctors who were caring for the man before his death, as well as the hospital where the man was being treated. Since the doctors were private parties employed by the state-run hospital, the woman followed different procedures and filed different lawsuits against each doctor, as well as two separate lawsuits against the state-run hospital.

Court Determines Negligence Lawsuit Against Ambulance Company Was Time-Barred

Published on: November 7, 2016 | by Friedman, Rodman & Frank, P.A.

The California Court of Appeals recently released an opinion affirming a lower court’s decision to dismiss a lawsuit filed against an ambulance company and hospital by a man who was injured while under the care of the defendants. The appellate court agreed with the district court’s finding that the claim was subject to the one-year statute of limitations for medical malpractice claims and was time-barred by the statute of limitations.

The Plaintiff’s Injuries Resulted in a Personal Injury Lawsuit

The plaintiff in Nava v. Saddleback was dropped from a gurney while being transported into the hospital from an ambulance and suffered from broken bones and severe pain as a result of his fall. He contacted an attorney and filed a personal injury and negligence lawsuit against the defendants 23 months after the fall occurred. The defendants asked the court to dismiss the case, arguing that the plaintiff’s claim was for medical malpractice and needed to be filed less than one year after the plaintiff was injured under the state’s statute of limitations for medical malpractice cases. The district court agreed with the defendants and entered judgment in their favor, and the plaintiff appealed.

The Court of Appeals Defines the Claim as One of Medical Malpractice

On appeal, the high court accepted the ruling of the district court, noting that any personal injury claim “related to” medical care that alleges the professional negligence of a health care provider is subject to the shorter, one-year statute of limitations. Since the plaintiff was receiving professional medical care from the defendants when his injuries occurred, the court ruled that his case was time-barred because the one-year statute of limitations applied. As a result of the recent appellate ruling, the plaintiff will not receive compensation for his injuries.

Court Applies “Discovery Rule” to Allow Plaintiff’s Wrongful Death Claim to Proceed

Published on: October 17, 2016 | by Friedman, Rodman & Frank, P.A.

The Supreme Court of the State of Illinois recently released a decision reversing two lower court rulings and ultimately preserving a wrongful death plaintiff’s right to recover damages from a defendant against whom he did not file a claim until the state’s statute of limitations had appeared to expire. The court found that the “discovery rule” applies to wrongful death by medical malpractice claims in that state, and the plaintiff’s right to hold medical providers accountable for their negligence would be unfairly taken away if the claim were not permitted to proceed. Since the dismissal of the plaintiff’s claim has been reversed, his claim for compensation will proceed toward a settlement or trial.

The Plaintiff’s Mother Dies While Under the Care of the Defendants

The plaintiff in the case of Moon v. Rhode is the son of a woman who died on May 29, 2009 after she was hospitalized to treat a gastrointestinal issue. After her death, the plaintiff had an investigation performed and was notified by medical experts that two of the attending physicians were likely negligent in failing to diagnose or treat respiratory problems that arose after she was admitted to the hospital, which ultimately led to her death.

The plaintiff filed a medical malpractice and wrongful death lawsuit against the physicians, seeking damages for his mother’s death. During the course of the lawsuit, the plaintiff requested that a different expert review his mother’s diagnostic imagery reports, and he was notified on March 4, 2013 (after the statute of limitations appeared to expire) that the likely cause of his mother’s death was a previously undiagnosed condition that should have been noticed by her radiologist, who was not a party to the ongoing lawsuit.

Medical Malpractice, Birth Injuries, and the Recent Increase in the Rate of Home Births

Published on: October 4, 2016 | by Friedman, Rodman & Frank, P.A.

A national news outlet recently published an article that is the second in a multi-part series on pregnancy and birth. The article discusses both the causes and the effects of the recent increase in the rate of families who decide to plan a birth at home or in a non-hospital birth center. Data from a study cited by the article shows that the rate of planned out-of-hospital births has increased by 56% in less than a decade. The steep increase in the home-birth rate raises several questions concerning the effect on medical malpractice and birth injury claims.

The Main Reasons for the Recent Increase in Home Births

According to the author of the recent article, one of the primary reasons for the recent increase in home-birth rates is the general decline in the level of trust afforded to institutionalized medicine and corporate care, especially as it applies to the act of delivering a child.

Complaints have proliferated from patients who were subjected to unnecessary or unwanted interventions in the name of “medical necessity” while giving birth at a hospital. Many professional medical providers are quick to recommend or order complicated and sometimes dangerous procedures during a hospital birth, and mothers and families may not be afforded the opportunity to give informed consent for these procedures in the heat of the moment. It is often not until after a hospital birth is completed that the mother is able to understand the procedures that were performed, and they may not have been necessary.

State Supreme Court Affirms Verdict for Defendant in Medical Malpractice Lawsuit, While Possibly Expanding the Statute of Limitations for Future Plaintiffs

Published on: September 30, 2016 | by Friedman, Rodman & Frank, P.A.

The Massachusetts Supreme Court recently released an opinion affirming a jury’s decision that a plaintiff’s claim was time-barred because she should have known malpractice was being committed and filed the lawsuit within the state’s statute of limitations. Although the high court ruling affirmed a final judgment in favor of the defendants, the court’s analysis and application of what is known as the “continuing treatment doctrine” left the door open for future medical malpractice plaintiffs to legally pursue claims over three years after the date of the alleged act of medical malpractice if the requirements for the doctrine are met. The Massachusetts Supreme Court found that the plaintiff’s claim in the case of Parr v. Rosenthal did not meet the requirements to extend the statute of limitations, and therefore it affirmed the jury’s verdict in favor of the defendant.

Complications Treating a Tumor on the Plaintiff’s Son’s Leg Results in Amputation

The plaintiff in the case of Parr v. Rosenthal is the mother of a child who lost his leg after receiving treatment from the defendant for a benign tumor on his leg. After the plaintiff’s son was diagnosed with the rare and quickly growing tumor, she sought out the defendant, who specialized in a treatment known as radio frequency ablation, or RFA, to have the tumor removed.

The plaintiff’s son was seriously burned during the procedure and eventually required two amputation surgeries on his leg because of the damage allegedly caused by the defendant. On March 9, 2009, over three years after the RFA procedure was performed, the plaintiff filed a medical malpractice and negligence lawsuit against the defendant. After a trial, the jury found that the plaintiff’s claim should have been filed within the three-year statute of limitations for medical malpractice claims, and the plaintiff should have discovered the doctor’s negligence within the limitations period.

The Rate of Low-Risk Cesarean Sections Continues to Decline

Published on: September 27, 2016 | by Friedman, Rodman & Frank, P.A.

The first of several articles that are being released as part of a new series on pregnancy and birth-related issues by a popular national news network has a startling title. The piece, entitled “Why I Regret my Scheduled C-Section,” was written by journalist Lisa Ling as part of a larger segment that is being published by CNN called “This Is Birth,” which will address many issues that American families face when seeking professional medical care during a pregnancy.

Why the Author Regretted Her Elective C-Section

Part one of the newly published series explains how and why the author came to regret her decision to have a scheduled cesarean delivery of her second child. According to the facts discussed in the article, a late ultrasound of her first pregnancy revealed that the child’s umbilical cord was wrapped around her neck and would need to be delivered by C-section. Her first C-section went as planned and without complications. When she became pregnant again, the author scheduled her second child to be delivered by C-section, a popular decision for mothers who have previously given birth by C-section. Unlike her first delivery, the author’s second C-section had complications and resulted in the author acquiring a dangerous and painful infection in the hospital. Although her baby and she ultimately recovered, the author clearly states that she did not thoughtfully consider the risks of a C-section compared to those of a natural birth, and shr regrets her decision to have the surgery.

State Court Affirms $4 Million Wrongful Death Verdict in Medical Malpractice Case

Published on: September 6, 2016 | by Friedman, Rodman & Frank, P.A.

The Idaho Supreme Court recently published an opinion affirming a $4 million jury verdict in a wrongful death and medical malpractice case filed by the husband of a woman who died after complications from a liposuction procedure performed by the defendant. The award, which includes over $1,250,000 in non-economic damages, was enhanced by the jury’s finding that the defendants acted recklessly in caring for the deceased woman.

Liposuction Patient Dies After Unknown Bacteria Is Introduced into Her System

The wife of the plaintiff in the case of Ballard v. Silk Touch Laser had a liposuction procedure performed by the defendant in 2010. Less than one week after the procedure, she died of septic shock from an unknown bacteria that was allegedly introduced into her system during the procedure. The plaintiff’s wrongful death lawsuit alleged that the defendant had negligently failed to sterilize equipment before performing the procedure and sought damages from the defendant. After a jury trial, the plaintiff was awarded a verdict totaling over $4 million. The defendant appealed the verdict to the Idaho Supreme Court.

The Defendant Challenges the Plaintiff’s Expert Testimony

On appeal, the defendant challenged the plaintiff’s use of an anesthesiologist as an expert witness to give testimony as to the appropriate standard of care that the plaintiff’s wife was entitled to receive. The appellate court found that the defendant never objected to the plaintiff’s proposed expert during the trial and could not raise the issue for the first time on appeal. Although the court noted that the plaintiff’s proposed expert was legally qualified to give testimony, the defendant’s failure to object to the testimony earlier made his arguments impossible on appeal.

Filing Error Causes Medical Malpractice Complaint to Be Dismissed

Published on: August 22, 2016 | by Friedman, Rodman & Frank, P.A.

The Idaho Supreme Court recently released an opinion affirming the dismissal of a plaintiff’s medical malpractice claim against a doctor who had not been included in the plaintiff’s lawsuit until after the statute of limitations had expired. The plaintiff’s contention that the court should have used a different date to determine if the claim had been timely filed was rejected by the appellate court, and as a result the plaintiff will be unable to collect any damages for the doctor’s alleged malpractice.

The Plaintiff Suffered a Stroke as a Result of Complications During a Surgery Performed by the Defendant

The plaintiff in the case of English v. Taylor was a woman who suffered injuries from a stroke after having a surgery performed by the defendant in September 2011. In the lawsuit leading up to this appeal, the plaintiff alleged that the defendant committed medical malpractice in performing the surgery, causing her stroke and resulting injuries. In September 2013, which was within the two-year statute of limitations for such claims, the plaintiff filed a product liability lawsuit against the manufacturer of a device that was used in the surgery. The plaintiff later obtained permission from the court to amend her complaint to allege medical malpractice and add the doctor as a defendant in the case, although the amended complaint was not filed or served on the defendant until after the two-year statute of limitations had expired.

Blatant Surgical Errors Remain Startlingly Common Despite Technological Advances in Medicine

Published on: August 18, 2016 | by Friedman, Rodman & Frank, P.A.

The technological advances in the medical field over the last 20 to 30 years have resulted in patients receiving improved care when treated for a variety of medical conditions and ailments. However, mistakes and errors by medical providers remain more common than many observers would believe. Although the incorporation of precision digital technology and improved medicines have benefited patients significantly, the human element of medical care leaves patients vulnerable to avoidable mistakes by medical professionals.Poorly designed information systems and over-worked, under-trained staff can result in patients receiving inapplicable, inadequate, or dangerous treatments that could have been avoided by the exercise of due care by medical professionals. If appropriate legal action is taken, patients and families who have been affected by such negligence can obtain financial compensation from the responsible parties.

Surgeons Remove Man’s Kidney Unnecessarily, Based on Physician’s Order

One type of preventable surgical mistake that can devastate patients and their families occurs when the wrong procedure is performed on a patient. In a recent article, CNN reported on such a situation that occurred at a Massachusetts hospital earlier this year. According to the news article, a physician’s order instructed surgeons to remove the patient’s kidney, and the surgery was performed successfully. Unfortunately, only after the kidney was removed did doctors discover that the patient did not need the procedure.