Articles Posted in Medical Negligence

Earlier this month, one state’s appellate court issued a written opinion in a medical malpractice case that required the court to determine whether the single doctor named as a defendant should be able to introduce evidence that there had originally been several other doctors named as defendants, but they had all settled with the plaintiff before the case reached trial. Ultimately, the court determined that the contested evidence was relevant to the case and should have been admitted.

Surgeon's ToolsThe Facts of the Case

The plaintiffs were the surviving loved ones of a man who died while he was being treated by the defendant doctor after he slipped and fell while playing racquetball. The defendant was one of several doctors who treated the plaintiffs’ loved one, and each of the other treating physicians had originally been named in the lawsuit. However, the plaintiffs agreed to settle the cases against the other physicians out of court and proceed to trial against only the defendant.

In a pre-trial motion, the plaintiffs asked the court to prevent the defendant from explaining to the jury that there were originally several other doctors named in the lawsuit, but they had reached settlements with the plaintiffs. Additionally, the plaintiffs asked the court to prevent the defendant from arguing that the subsequent acts of these other non-present doctors acted as an intervening cause of their loved one’s death. The trial court denied both of the plaintiffs’ motions, and the case proceeded to trial. The jury found in favor of the defendant, and the plaintiffs appealed.

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A United States District Court recently issued a decision that denied a plaintiff’s request to impose sanctions against a defendant for destroying evidence before trial on the plaintiff’s pharmacy error claim. The plaintiff had alleged that the defendant, who had already admitted to accidentally dispensing the wrong medication to the plaintiff, destroyed the evidence in order to gain an advantage in litigation against the plaintiff. The court ultimately rejected the plaintiff’s request for additional sanctions and damages against the defendant, ruling that the defendant’s admission of the pharmacy error made the evidence sought by the plaintiff irrelevant to the issues presented in the case. The court ruled that since the plaintiff’s case was not prejudiced by the defendant’s actions, the requested sanctions would not be appropriate.

Blue PillsPlaintiff’s Claim Arises After Pharmacy Accidentally Dispenses the Wrong Medication

According to an article discussing the court’s recent ruling in the case, the plaintiff in the case of Burton v. Walgreen Co. was a customer of the defendant who filled a prescription for valsartan tablets but was instead given a bottle containing both his prescribed medication as well as lithium tablets. The plaintiff consumed five of the pills before noticing the error and returning the medication. The plaintiff subsequently filed a pharmacy error lawsuit against the defendant, alleging that he suffered injuries as a result of the wrong medication being dispensed by the defendant.

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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.

Pregnant WomanWhy 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.

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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.

Operating RoomLiposuction 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.

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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.

SurgeryPoorly 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.

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file000388465185 morguefile MetalliXIn Shands Teaching Hospital and Clinics, Inc. v. Estate of Lawson, a woman with a history of mental illness was admitted to a hospital’s locked psychiatric unit in 2013. Unfortunately, the woman somehow got access to a facility worker’s keys and escaped the building. After that, the woman ran onto a nearby highway and was struck by a vehicle. Sadly, the woman died as a result of her injuries.

Following the woman’s death, her estate filed an ordinary negligence lawsuit against the hospital in a Florida court. The hospital filed a motion to dismiss the case and asserted that the estate’s lawsuit was actually a medical negligence complaint. According to the medical facility, the estate’s case was subject to dismissal because it failed to comply with the pre-suit notice requirements enumerated in Chapter 766 of the Florida Statutes. The trial court denied the hospital’s motion, and the facility sought a writ of certiorari to quash the lower court’s order from Florida’s First District Court of Appeal.

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file0001279191486 morguefile bamagirlIn Allstate Insurance Company v. Theodotou, a young man suffered head trauma and other injuries when he was struck by a motorist while riding his scooter in Florida. Following the collision, the boy was treated at a local hospital. Unfortunately, his injuries were apparently made worse as a result of medical negligence.

Not long after the accident, the young man’s guardian sued the motorist who struck him as well as the owner of the vehicle. At trial, the defendants were precluded from presenting evidence that the young man’s condition was made significantly worse due to negligent medical care in accordance with prior Florida precedent. Ultimately, the defendants were ordered to pay the young man more than $11 million. After that, the driver’s auto insurer paid the boy’s guardian the full accident policy limits of $1.1 million.

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124811_medical_series_3 sxchuIn Duong v. Ziadie, a woman filed a medical malpractice lawsuit on behalf of her incapacitated son against his doctor, the practice where the doctor was employed, and other defendants. According to the woman’s complaint, the physician’s negligent care caused her son to become permanently paralyzed. In her lawsuit, the mother sought damages related to her son’s medical bills, pain and suffering, and loss of earning capacity. She also asked the court to award his minor children financial compensation for their loss of parental services and other damages.

Prior to trial, the mother submitted a formal proposal for the settlement of each person’s claim to the allegedly negligent physician. The woman also stated she would seek sanctions against the doctor if he refused the offer and a jury issued an award against him for at least 25 percent more than her $1 million proposal. The man’s doctor refused to settle the case, and the lawsuit proceeded to trial. After reviewing the evidence, jurors issued an award of approximately $10 million in favor of the plaintiffs. In addition, the jury found that the physician was 75 percent responsible for the incapacitated man’s harm. The jurors also determined that another doctor was 25 percent at fault.

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heartbeat morguefile PrawnyFlorida’s Fifth Circuit Court of Appeal has refused to grant a hospital’s petition for a writ of certiorari. In Holmes Regional Medical Center, Inc. v. Dumigan, a man was apparently injured by a drug that was used on him during a surgical procedure even though it was previously recalled. As a result of the hospital’s alleged failure to dispose of the recalled drug, the man and his wife filed a negligence and products liability action against the medical facility where his surgery was performed. After a trial court refused to grant the hospital’s motion to dismiss the case, the hospital asked Florida’s Fifth District Court of Appeal to review the lower court’s order.

According to the hospital’s petition for a writ of certiorari, the plaintiffs’ lawsuit was inappropriately characterized as a products liability and negligence action. The medical facility claimed that the statutory presuit notice requirements enumerated in the Florida Medical Malpractice Act (“FMMA”) instead applied to the case. Since the plaintiffs failed to comply with the FMMA’s notice requirements, the hospital argued that the trial court should have dismissed the case.

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file0002014909352 morguefile xandertThe Middle District of Florida in Tampa has remanded a products liability case back to state court. In Wier v. DePuy Orthopaedics, Inc., a man was allegedly hurt by a medical device that was surgically implanted in his hip. As a result, he filed a lawsuit against the manufacturer of the device and the distributor in the Twelfth Judicial Circuit in Sarasota County. In the man’s case, he asserted the two companies were negligent, failed to warn him, committed breach of an implied warranty, and should be held strictly liable for his harm. He also claimed that the medical device manufacturer was guilty of breach of express warranty.

Although the device manufacturer hailed from a different state, the defendant distributor was a Florida citizen for purposes of diversity jurisdiction. Under 28 U.S.C. § 1332(a), a lawsuit that was filed in state court may be removed to federal court if the parties are citizens of different states, and the amount in controversy exceeds $75,000. In general, any doubts regarding whether federal jurisdiction is proper should be decided in favor of a lawsuit proceeding in state court. Despite this, the manufacturer successfully removed the case to the Middle District of Florida based on diversity of citizenship.

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