During her birth in 2004, the 11-pound baby became lodged in the mother’s pelvis, so that nerves in her shoulder were injured (brachial plexus injury), resulting in a limited range of movement in her right arm A few months later her mother consulted a lawyer, who recommended against suing. Fifteen months later the mother consulted another lawyer; he agreed to represent her, but 16 months later, he withdrew. Finally, in 2010, the mother filed a malpractice suit against the Erie Family Health Center and the Center’s nurse-midwives who had provided her prenatal care. Erie is a private enterprise, but it receives grant money from the U.S. Public Health Service, so that its employees are deemed federal employees, 42 U.S.C. 233(g)(1)(A),(g)(4) and tort suits against it or its employees can be maintained only under the Federal Tort Claims Act, 42 U.S.C. 233(a),(g)(1)(A). The district court found the claim time-barred. The Seventh Circuit affirmed. While the limitations period for a tort suit under Illinois law would be eight years for a minor, 735 ILCS 5/13-212(b), the extension of the statute of limitations for a child victim does not apply to claims governed by the Federal Tort Claims Act. View "Arteaga v. United States" on Justia Law

Plaintiff filed a medical malpractice and wrongful death action against Defendants. Counsel for Defendants filed affidavits with the clerk of the Supreme Court seeking to disqualify Judge Frank Forchione from presiding over further proceedings in the pending case, alleging that Judge Forchione was prejudiced in favor of Plaintiff because he granted Plaintiff's motion to strike Defendants' jury demand and because the judge lacked judicial objectivity. The Supreme Court denied the affidavits of disqualification, holding (1) rulings that are adverse to a party in a pending case are not grounds for disqualification; and (2) the record did not demonstrate the judge was partial to Plaintiff or that he had a bias against Defendants or their counsel. View "In re Disqualification of Forchione" on Justia Law

SSC Montgomery Cedar Crest Operating Company, LLC appealed a circuit court judgment denying its motion to compel arbitration of the medical-malpractice claim asserted against it by Linda Bolding, as attorney in fact and next friend of her father, Norton Means. In early 2012, Means was hospitalized after experiencing stroke and/or heart-attack symptoms. He was admitted to Cedar Crest, a nursing-home facility operated by SSC Montgomery, to receive rehabilitation and nursing services while he recovered. At the time Means was admitted to Cedar Crest, he was accompanied by his daughter, Michelle Pleasant, who completed the necessary paperwork on his behalf. Among the paperwork completed and signed by Pleasant was a dispute-resolution agreement (the "DRA") providing that the "parties" waived their right to a judge or jury trial in the event a dispute arose between them and instead agreed to resolve any such dispute by way of a dispute-resolution program consisting of mediation and binding arbitration. Several months later, Means was hospitalized again. In the second hospitalization, another of his daughters, Linda Bolding, whom Means had previously granted a durable power of attorney, sued SSC Montgomery, alleging that Cedar Crest staff had negligently cared for Means, causing him to suffer dehydration, malnourishment, and an untreated infection that combined to result in his second hospitalization. SSC Montgomery filed both its answer denying Bolding's allegations and a motion to compel arbitration pursuant to the terms of the DRA. Bolding subsequently filed a response, arguing that it would be improper to enforce the DRA because Pleasant had no legal authority to act on Means's behalf at the time Pleasant executed the DRA. Following a September hearing, the trial court entered an order denying SSC Montgomery's motion to compel arbitration. SSC Montgomery then appealed to the Supreme Court. Upon review, the Court concluded that Pleasant's signature on the arbitration agreement was ineffective to bind Means, and by extension his legal representative Bolding, because the evidence indicates he was mentally incompetent at the time Pleasant executed the agreement. View "SSC Montgomery Cedar Crest Operating Company, LLC v. Bolding" on Justia Law

The Medicaid statute’s anti-lien provision, 42 U. S. C. 1396p(a)(1), pre-empts state efforts to take any portion of a tort judgment or settlement not “designated as payments for medical care.” A North Carolina statute requires that up to one-third of damages recovered by a beneficiary for a tortious injury be paid to the state to reimburse it for payments made for medical treatment on account of the injury. E. M. A. suffered serious birth injuries that require her to receive 12 to 18 hours of skilled nursing care per day and that will prevent her from working or living independently. North Carolina’s Medicaid program pays part of the cost of her ongoing care. E. M. A. and her parents filed a medical malpractice suit against the physician who delivered her and the hospital where she was born and settled for $2.8 million, due to insurance policy limits. The settlement did not allocate money among medical and nonmedical claims. The state court placed one-third of the recovery into escrow pending a judicial determination of the amount owed by E. M. A. to the state. While that litigation was pending, the North Carolina Supreme Court held in another case that the irrebuttable statutory one-third presumption was a reasonable method for determining the amount due the state for medical expenses. The federal district court, in E.M.A.’s case, agreed. The Fourth Circuit vacated. The Supreme Court affirmed. The federal anti-lien provision pre-empts North Carolina’s irrebuttable statutory presumption that one-third of a tort recovery is attributable to medical expenses. North Carolina’s irrebuttable, one-size-fits-all statutory presumption is incompatible with the Medicaid Act’s clear mandate View "Wos v. E. M. A." on Justia Law

Plaintiff-Appellant Brian C. Howard, M.D. received a knee replacement manufactured by Defendant Sulzer Orthopedics, Inc. The implant failed and had to be removed allegedly because it did not bond to Howard's bone. Howard asserted that the implant was unsuccessful because Sulzer left oily residue on the implant in violation of federal regulations. The United States Court of Appeals for the Tenth Circuit certified a single question to the Oklahoma Supreme Court. The Court in turn reformulated the question as one of first impression: "[w]hether 21 U.S.C. 337 of the Federal Food, Drug, and Cosmetic Act (FDCA), [which provides] that all violations of the Act shall be prosecuted in the name of the United States, prohibits Oklahoma from recognizing a claim for negligence per se based on violation of a federal regulation under the Medical Device Amendments (MDA) to the FDCA?" Howard asserted that Oklahoma law would allow a claim for negligence per se to proceed based on the violation of a federal regulation, and that such a position was supported by a recent opinion promulgated by the Oklahoma Court. Sulzer argued that federal regulations are not the type of law which should give rise to negligence per se claims. The manufacturer also insisted that recognizing such a claim would contravene legislative intent where no clear standard of conduct is outlined. The Oklahoma Supreme Court was not persuaded by Sulzer's arguments and answered the single reformulated first impression question, "no." View "Howard v. Zimmer, Inc." on Justia Law

The Federal Tort Claims Act waives sovereign immunity from tort suits, 28 U. S. C. 1346(b)(1), except for certain intentional torts, including battery; it originally afforded tort victims a remedy against the government, but did not preclude suit against the alleged tort-feasor. Agency-specific statutes postdating the FTCA immunized certain federal employees from personal liability for torts committed in the course of official duties. The Gonzalez Act makes the FTCA remedy against the U.S. preclusive of suit against armed forces medical personnel, 10 U. S. C. 1089(a), and provides that, “[f]or purposes of this section,” the FTCA intentional tort exception “shall not apply to any cause of action arising out of a negligent or wrongful act or omission in the performance of medical ... functions.” Congress subsequently enacted the Federal Employees Liability Reform and Tort Compensation Act, which makes the FTCA remedy against the government exclusive for torts committed by federal employees acting within the scope of their employment, 28 U. S. C. 2679(b)(1); federal employees are shielded without regard to agency or line of work. Levin, injured as a result of surgery performed at a U. S. Naval Hospital, sued the government and the surgeon, asserting battery, based on his alleged withdrawal of consent shortly before the surgery. Finding that the surgeon had acted within the scope of his employment, the district court released him and dismissed the battery claim. Affirming, the Ninth Circuit concluded that the Gonzalez Act served only to buttress the personal immunity granted military medical personnel and did not negate the FTCA intentional tort exception. The Supreme Court reversed and remanded. The Gonzalez Act section 1089(e) abrogates the FTCA intentional tort exception, allowing Levin’s suit against the U.S. alleging medical battery by a Navy doctor acting within the scope of employment. The operative clause states, “in no uncertain terms,” that the FTCA intentional tort exception “shall not apply,” and confines the abrogation to medical personnel employed by listed agencies. View "Levin v. United States" on Justia Law

On May 2, 2011, Appellant filed a complaint alleging medical malpractice against Appellees. That same day, in accordance with the law at that time, the circuit court issued summonses stating that Appellees had twenty days after service of the complaint to file an answer. On June 2, 2011, after the summonses had been issued but before Appellees were served, the Supreme Court amended its rules to provide that all defendants have thirty days after service of the complaint to file an answer. The Court stated that the amendment would be effective July 1, 2011. One appellee (Dudding) was served on July 28, 2011, and another (Goodman) on August 9, 2011. Dudding filed a motion to dismiss, alleging that the summons was defective and the statute of limitations had expired. Goodman filed a motion for summary judgment, alleging that process was defective because the summons served upon him indicated that he had twenty days, rather than thirty days, to file a responsive pleading. The circuit court granted both motions, concluding that the summonses were defective when served, and dismissed the complaint as time-barred. The Supreme Court reversed and remanded, holding that the rule change did not invalidate summonses issued before July 1, 2011. View "May v. Coleman" on Justia Law

Appellant, the representative of a decedent's estate, hired attorneys David Mushlin and William Nefzger and their law firm to pursue a medical negligence claim against a hospital and several physicians. The trial court later disqualified Mushlin on the ground that Mushlin's prior representation of the hospital was sufficient to create a conflict of interest or at least the appearance of impropriety. The court also noted that Nefzger and the entire firm were conflicted because Mushlin could not effectively be screened from the case and there was a great likelihood of his having constant contact with the other attorneys who would be working on the case in his stead. Appellant subsequently filed a petition for a writ of prohibition, which the court of appeals denied. The Supreme Court affirmed, holding that Appellant failed to show she would suffer great injustice and irreparable injury from the trial court's order disqualifying her lawyer and his law firm from representing her. View "Robertson v. Circuit Court" on Justia Law

Appellant Diane Ausman, the administrator of the Estate of Daniel Ausman, filed a complaint on August 24, 2009 against a geriatric center and doctor, alleging, among other claims, medical negligence and negligence. Shortly after the suit was filed, Appellant passed away. The attorneys representing Appellant did not learn of her death until May 2011. As a result, the attorneys filed a motion for a continuance of the trial, which was scheduled to begin on July 11, 2011. The parties disputed whether the one-year statute of limitations found in Ark. Code Ann. 16-62-108 was applicable where a special administrator of an estate dies during the pendency of litigation or whether the matter was simply governed by Ark. R. Civ. P. 25's requirement for substitution of parties. The circuit court dismissed the case with prejudice, finding that the Estate improperly failed to revive the action within one year from the date of Appellant's death. The Supreme Court affirmed, holding that the Estate's failure to move for substitution within one year from the time of Appellant's death prevented the revivor of the action. View "Ausman v. Hiram Shaddox Geriatric Ctr." on Justia Law

Pearl Archambault died while in the care of Haven Health Center of Greenville (Haven Health) after a nurse mistakenly administered a lethal overdose of morphine. The administratrix of her estate, Plaintiff, filed a medical malpractice action against Haven Health. Health Haven subsequently filed for Chapter 11 bankruptcy. Thereafter, Plaintiff amended her complaint to add Columbia Casualty Company, the professional liability insurer of Health Haven, as a defendant and asserted two counts against Columbia directly based on R.I. Gen. Laws 27-7-2.4, which permits an injured party to proceed against an insurer when the insured has filed for bankruptcy. The superior court entered default judgment against Haven Health. The court then granted summary judgment in favor of Columbia. The Supreme Court reversed and remanded with instructions to enter judgment against Columbia, holding that the superior court erred in interpreting Rhode Island law and that the insurance contract between Columbia and Health Haven should be construed in Plaintiff's favor. View "Peloquin v. Haven Health Ctr. of Greenville, LLC" on Justia Law