Articles Posted in Medical Malpractice Case Law

In a recent case, a plaintiff who was receiving treatment at a hospital was injured as he was being moved on a gurney within the hospital by medical personnel. While the plaintiff was being transferred, the gurney tipped over, and he suffered fractures as a result. The plaintiff filed a claim against the hospital. The complaint was filed more than a year but less than two years after the injury.

StretcherIn the plaintiff’s jurisdiction, general negligence cases were subject to a two-year statute of limitations, whereas medical malpractice cases were subject to a one-year statute of limitations. The defendants argued that the claim was filed too late, since there was a one-year statute of limitations for medical malpractice cases. The trial court agreed and dismissed the case.

After the case was decided, the state’s supreme court then decided that in negligence cases involving the use of medical equipment, a specific section of the state’s code applied. The case was reconsidered in light of the supreme court’s holding. The court found that since in this case the negligence was related to the plaintiff’s medical diagnosis and treatment, the negligence occurred “in the rendering of professional services,” and his case was subject to the one-year statute of limitations.

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Earlier this month, a Massachusetts court issued a written opinion in a medical malpractice case adopting the continuing course of treatment doctrine. The continuing course of treatment doctrine acts to toll the statute of limitations in medical malpractice cases while the defendant is still providing medical care for the plaintiff. Thus, if the doctrine is applied, only once the defendant stops providing medical care will the statute of limitations begin. In the case, Parr v. Rosenthal, the court ultimately adopted the doctrine but declined to apply it in the specific facts presented in the plaintiffs’ case.

HourglassThe Facts

The plaintiffs’ son was born with an unexplained lump on the back of his leg. After several years of unsuccessful diagnosis attempts, the plaintiffs found a group of doctors who were able to identify the lump as a desmoid tumor. While the tumor was identified, none of the doctors treating the boy was familiar with how to treat a desmoid tumor. The treating physicians referred the parents to the defendant, who was another doctor in the group who had not yet met with their son. After discussing the procedure with the boy’s parents, it was agreed that the defendant would perform an emerging procedure called radio frequency ablation.

Unfortunately, the boy was badly burned by the defendant during the procedure, and the procedure could not be completed. The original group of doctors continued to care for the boy, but the defendant provided no follow-up care. Eventually, the boy’s leg needed to be amputated due to the worsening condition of the burn. Several years later, the plaintiffs filed this lawsuit against the defendant, naming only him and none of the doctors in his practice group.

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In a recent case in front of a state appellate court, a woman filed a medical malpractice lawsuit after she was treated for a condition known as thoracic outlet syndrome. The illness caused her extreme pain around her shoulder and in her arm and also caused her numbness, swelling, and weakness. As a result, she was treated by a doctor who performed a surgery to try to ease the pain by removing one of her ribs. However, the woman suffered severe symptoms after the surgery, including pain whenever she moved her arm and difficulty swallowing food. The woman then sued the doctor for malpractice.

Doctor's CoatThe defendant presented an expert who said that the doctor performed the surgery correctly and provided proper post-operative care. The expert also said that the woman’s symptoms after the surgery were a result of her original illness. To rebut this, the woman presented her own expert, who was a doctor in Mexico. The doctor had examined her about one year before she sought treatment from the defendant. Her expert stated that the defendant had destabilized the woman’s right sternoclavicular joint during the surgery or had disrupted the ligaments that hold it in place.

The defendant objected to the plaintiff’s expert witness, arguing that he was not familiar with the “standard of care” in the United States. The trial court agreed and dismissed the case. However, a court of appeals found that her expert witness, who was licensed to practice medicine in Mexico, was qualified to give an opinion in this case. Importantly, the defendant doctor did not suggest that the standard of care in Mexico was different from the standard of care in the United States. In addition, the Mexican doctor had performed over 500 orthopedic surgeries and around 10 to 12 thoracic outlet syndrome surgeries. He also personally examined the woman before and after her surgery. Thus, the court found that he was qualified to give his opinion, and the jurors were free to give it as much weight as they determined was appropriate.

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In a recent case, a medical malpractice plaintiff had his case dismissed based on a procedural error. A boy was born prematurely by an emergency C-section surgery, and then he was transferred to the neonatal intensive care unit. He stayed in the unit for two months and was then discharged in stable condition. A year and a half later, a notice of claim was brought against the hospital for failing to properly treat and care for his mother prenatally and for failing to obtain informed consent regarding the boy’s care. The claim alleged that the boy suffered brain damage, development, speech, and psychomotor delays, cognitive defects, and respiratory distress and seizure disorder as a result.

DoctorThe plaintiff filed the claim in court another year and a half later, and four months later he sought permission to serve a late notice of claim on the defendants. The court dismissed the case for failing to provide timely notice to the hospital.

The state’s laws required that a notice of claim be served on a public corporation within 90 days of the claim arising. In medical malpractice cases, the relevant time is when a negligent act or omission occurred. Here, the plaintiff failed to serve notice within the required 90 days after the hospital provided negligent care. The court could have extended the time to serve notice and allow late notice in certain circumstances—for example, if the public corporation had knowledge of the essential facts constituting the claim. However, in this case, the plaintiff’s attorney stated that he waited to make the motion to request serving notice because he needed to receive the medical records from the hospital.

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In a recent case, a man filed a medical malpractice claim for an allegedly negligent surgery after the procedure left him with a fractured ankle. The man broke his ankle while repairing his truck and had to undergo surgery as a result. Soon afterward, the man underwent an additional surgery, allegedly because the initial surgery failed to properly attach the fractured pieces. The patient filed a claim against the initial surgeon, alleging that the surgeon negligently performed the surgery and the post-surgical care.

Semi TruckUnder that state’s law, expert witnesses are required to be board-certified to provide testimony in a medical malpractice claim. The plaintiff sought to present an expert witness who was board-certified at the time of the alleged malpractice. However, the expert witness’ certification had since expired, and the defendant argued that an expert witness must be board-certified at the time he testifies to be qualified. That state’s supreme court found that a witness’ board certification is based on the board certification status at the time of the alleged malpractice rather than at the time of testimony. Therefore, the testimony was permissible.

Expert Testimony in Medical Malpractice Cases

Medical malpractice claims arise when a patient receives negligent medical care. In general, the plaintiff has to show that the provider failed to conform to an established standard of care by providing expert testimony. The use of expert testimony is required because jurors normally are not skilled in the practice of medicine, and it usually is not clear to a layperson whether or not the professional breached the standard of care. Notwithstanding this requirement, expert testimony may not be required if the negligent conduct or treatment is so obvious that even a layperson can recognize it.

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Medical malpractice cases are extremely complicated because they involve a highly specialized knowledge of medicine and medical care. In a recent case, a medical malpractice claim was filed against a woman’s doctors after she died while in their care. The woman went to the emergency room at a hospital to seek medical treatment. The emergency room doctor ordered tests and diagnosed the woman with an incarcerated hernia and possible bowel obstruction, and he tried to reduce the hernia.

SurgeonThe ER doctor then called the woman’s primary care physician, who told him to call another surgeon. The surgeon came and reduced the woman’s hernia, and the woman was admitted to the hospital. On the following morning, the woman went into septic shock and experienced cardiac arrest, for which she was resuscitated. She then went into surgery to address a perforated bowel. The woman was then given medication for her blood pressure. Subsequently, her primary care physician switched her to a different medication. Suddenly, the woman’s blood pressure dropped, and she died.

A medical malpractice claim was filed against the woman’s medical providers. The defendants wanted to exclude the testimony of the plaintiffs’ two expert witnesses. They argued that the witnesses had not sufficiently testified as to the cause of the woman’s death, as required under the Daubert case. Under the Daubert case, a U.S. Supreme Court decision, an expert’s scientific testimony must be based on reasoning or methodology that is valid and can be appropriately applied. The factors to consider are whether the theory has been or can be tested, whether it has been subjected to peer review and publication, its error rate, its maintenance and standards, and whether it is generally accepted within the scientific community.

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We all depend on medical professionals to take care of us while we are in the hospital. However, what we may not realize is that some hospitals can escape liability just because the hospital is operated by the state.

Doctor in WhiteIn a recent case, a man had surgery to reconstruct the back of his mouth at a state university hospital. He was then taken to the intensive care unit in the hospital to recover. The care required in the unit is complex because patients are often in very critical condition. Each nurse cares for two patients at most at a time. The nurses are required to closely monitor patients and carry out the orders given by the surgery team.

After the man’s surgery, his head had to be kept stable to enable blood flow. The doctors responsible for the man’s care did not write any specific orders about how to position his head or neck. On the day after the surgery, notes indicated that the man’s head should be kept “in a neutral position,” but nurses are not required to read these notes. Five days after the surgery, the man was found with his neck tilted to the right, and the staff present were told to avoid this practice. Later that day, he was again found with his head in the same position. His face and neck were very swollen, and he had to undergo additional surgery due to the swelling, which was unsuccessful.

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The birth of a new baby is an exciting time. However, most often mothers and babies are at the mercy of the hospital or medical provider where they are receiving care during the birth. They rely on the medical staff to care for them and to make sure that everything goes smoothly. Unfortunately, medical staff can make mistakes, which may carry serious consequences. A recent case demonstrated an instance in which a hospital’s careless error caused the baby permanent injuries.

pills-pills-pills-3-1326912According to one news source, the plaintiff’s daughter was born in 2009. The mother was an active air force captain and gave birth at a military hospital. When the mother was in the hospital getting ready to have a planned Cesarean-section delivery, she was given a medication to which she was allergic. That allergy was documented in her medical records at the hospital. When the mother then had an allergic reaction, she was given an antihistamine, which made her blood pressure drop and deprived her baby of oxygen.

The daughter, who is now six years old, suffered brain and nerve damage as a result. Those medical issues forced her to undergo occupational and physical therapy each week. She also has to wear leg braces and requires special accommodations at school.

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In a landmark 2010 case, the Illinois Supreme Court decided that a cap on non-economic damages in medical malpractice cases is unconstitutional. In the case, the plaintiffs, a minor and her mother, sued a doctor and hospital for medical malpractice, alleging that the defendants’ negligence caused the daughter to suffer from severe and permanent injuries. The injuries included cerebral palsy, cognitive mental impairment, neurological damage, severe brain injury, and the need for a feeding tube, among others.


In the case, the Illinois Supreme Court was asked to decide if a law enacted by the Illinois General Assembly that limited non-economic damages against doctors and hospitals in medical malpractice actions was constitutional. Under the law, non-economic damages against doctors were capped at $500,000 and non-economic damages against hospitals and hospital personnel at $1,000,000. Non-economic damages included, but were not limited to, damages for pain and suffering, disfigurement, loss of consortium, and loss of society.

In its ruling, the court found that the statute, which was passed by the Illinois General Assembly, violated the state constitution’s separation of powers clause. The separation of powers clause reserves certain powers for each branch of government. In this case, the Court found that the General Assembly exceeded its power by passing the damages cap, since determinations about the appropriateness of a damages award is a power reserved for Illinois state judges, not lawmakers.

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Earlier this year, an Illinois appellate court decided a case holding that the time of accrual for a wrongful death action based on the legal theory of medical malpractice is the time of death, rather than the time the alleged negligence was discovered. In the case, Moon v. Rhode, the plaintiff was the son of a woman who died while in the care of the defendant doctors.

hourglass-1543596According to the court’s written opinion, the plaintiff’s mother was in the care of the defendant doctors for 11 days preceding her death. At some point in that period, a CT scan was conducted and the results examined by one of the defendant doctors. Action was not taken after reviewing the results, and several days later the woman passed.

The plaintiff obtained medical records one year after his mother’s death. Three years after that, he contacted a medical expert, who opined that any “reasonably, well-qualified radiologist and physician would have identified” a breakdown in anastomosis, which ultimately contributed to the death of his mother. The plaintiff then filed suit against several treating physicians, claiming that his mother’s death was a result of the allegedly negligent medical care provided by the defendants.

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