Articles Posted in Medical Malpractice News

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The Madison St. Clair Record has an article on a medical malpractice case that is in its sixth day of the second time trying the case. The case alleges failure to diagnose skin cancer.

Interestingly, the first case ended in a mistrial after a defense verdict when it was discovered that a juror lied about his role in two pending personal injury lawsuits. Usually, when the issue of jury honesty in voir dire is raised, it is almost invariably the defendant after a plaintiff’s verdict.

The article also provides some highlights from this medical malpractice trial including this one: “So, you think there are some situations where the doctor can play Russian roulette with the revolver?” As you can imagine, this one drew an objection.

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A Florida appeals court gave an interesting ruling in Kristensen-Kepler v. Cooney on the question of whether there was potential liability against an ambulatory surgical center.

Plaintiff’s wrongful death claim was that the ambulatory surgical center’s anesthesiologist negligently caused an infection in decedent’s spine. The court found that the surgery center was not directly the patient’s injuries and death because the patient did not choose the surgical center as the site of his surgery. Instead, the patient chose the doctor who directed the patient to the surgical center.

You can read the full opinion here.

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The AP reports that President Obama’s says he’s willing to start from scratch on health care — and will consider medical malpractice caps sought by most Republicans. I don’t think the President really supports malpractice reform. My fear is that, at this point, he would sacrifice too much – including small puppies, I think at this point – to enact anything resembling real health care reform.

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The Washington Supreme Court unanimously (9-0) threw out a 2006 law that requires an injured patient to get a certificate of merit from an expert before suing for medical malpractice, finding that RCW 7.70.150, usurped the judicial branch’s power to determine the procedures by which courts adjudicate medical malpractice lawsuits. In other words, requiring a certificate of merit in medical malpractice cases in Washington violates the separation of state powers in Washington’s constitution.

I’m not necessarily against the idea of certificates of merit in medical malpractice cases – which have been required for years as a condition precedent to filing medical malpractice lawsuits in Maryland – even though I’m a little queasy about the idea of treating doctors in civil lawsuit differently that the rest of us. (The justification? We have been doing it that way for a while. Which is really no justification at all when you think about it. But let’s move on.) But if you read the opinion, it is hard to argue that a certificate of merit is anything other than a procedural rule.

Washington state constitution, similar to Ohio’s – is clear that procedural rules are for the judiciary.

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President Obama’s speech on malpractice both left Republicans demanding more and Democrats worried that President Obama will sell the rights of the few for health care reform. Clarifying his thinking (sort of), President Obama said on 60 Minutes on Sunday that there was no evidence that malpractice caps would make a meaningful difference in the costs of health care.

“What I would be willing to do is to consider any ideas out there that would actually work in terms of reducing costs, improving the quality of patient care. So far the evidence I’ve seen is that caps will not do that.”

But President Obama chose – as he always does – his words very carefully. “So far the evidence” means this is what I think…. but I might change my mind if I have to for health care reform to go through. President Obama is keeping his options open on health care tort reform.

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A lawsuit by former CBS “Early Show” personality Mark McEwen against a Maryland doctor and Baltimore Washington Hospital has been dismissed on summary judgment. The Maryland medical malpractice lawsuit alleged that Baltimore Washington Medical Center should have recognized that McEwen was suffering from stroke-like symptoms and treated him with anti-coagulates. U.S. District Judge J. Frederick Motz granted summary judgment for the doctors, finding that there was not sufficient evidence that anti-coagulates would not have prevented McEwen’s stroke.

Interestingly, the doctor at Baltimore Washington Medical Center (formerly North Arundel Hospital) admitted in his deposition that he spent time looking up McEwen on the Internet during his stint in the emergency room. The doctor told McEwen he had the stomach flu and advised him not to fly for two days. McEwen followed the doctor’s orders, then traveled home to Florida and suffered a stroke in mid-air.

It is relatively rare to lose a medical malpractice case in Maryland on summary judgment because usually the doctor’s opinion are set out before the case is filed. Honestly, and I’m just going off the press coverage, I doubt there was much of a malpractice case here although the temporal relationship between the ER visit and the stroke is compelling.

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Former New England Patriots defensive back Tebucky Jones has filed a medical malpractice lawsuit claiming Patriots team doctors, and another doctor failed to diagnose his career-ending 2006 preseason knee injury, effectively ruining his pro career.

Jones’ malpractice lawyers can expect a prompt motion for summary judgment claiming the players’ collective bargaining agreement with the NFL requires that these claims be subject to arbitration and, oh by the way, the statute of limitations for claims against a team under the CBA is 90 days.

I won this exact motion in a medical malpractice case against the New England Patriots. The Patriots settled after we won the motion. But the facts of my case were different because the team waited an incredible two years to file the motion claiming the CBA defeated Plaintiff’s claim. The judge seemed to rely upon this waiver argument in her ruling.

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