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

Dr. James Gallo treated Plaintiff in 2003 and 2004. Thereafter, Plaintiff filed a complaint against Gallo and West Bay Psychiatry Associations, including claims for slander for remarks uttered in two separate proceedings. The first alleged slander occurred when Gallo's deposition was taken in connection with Plaintiff's case before the Workers' Compensation Court (WCC). The second alleged slander occurred when Gallo testified before the Rhode Island Department of Education (RIDE) regarding Plaintiff's alleged wrongful termination from her teaching position. The superior court entered summary judgment for Defendants on Plaintiff's slander claims. The Supreme Court affirmed, holding that the motion justice did not err in finding (1) Plaintiff's claim for slander based on Gallo's WCC deposition testimony was time-barred; and (2) Plaintiff's claim for slander based on Gallo's RIDE testimony was immunized from defamation claims by the testimonial privilege because it qualified as having occurred in a judicial proceeding. View "Francis v. Gallo" on Justia Law

Appellees Edgar and Clara Shelton filed a complaint against St. Vincent Infirmary Medical Center, Catholic Health Initiatives (collectively, Appellants) and Golden Living Center, alleging negligence, medical malpractice, and violations of the Arkansas Long Term Care Resident's Rights Statute for Edgar's treatment while he was a patient at the facilities. Golden Living was dismissed from the suit after a settlement. Appellants subsequently filed a cross-claim and third-party complaint against Golden Living. The circuit court struck Appellants' cross-claim and third-party complaint, finding that Appellants did not have a claim or cause of action against Golden Living. The Supreme Court affirmed, holding (1) the circuit court did not abuse its discretion in striking Appellants' third-party complaint; and (2) the dismissal of Appellants' third-party complaint did not operate to prevent Appellants from presenting to the jury potential evidence of Golden Living's responsibility for a portion of Edgar's injuries. View "St. Vincent Infirmary Med. Ctr. v. Shelton" on Justia Law

Doctor examined Patient to determine whether she met the criteria for involuntary hospitalization for psychiatric care. Doctor decided she did not and released her. Three days later Patient committed suicide. Patient's sons (Plaintiffs) sued Doctor for negligence in failing to involuntarily hospitalize Plaintiff. The jury found against Doctor and awarded damages of $200,000. The trial court rendered judgment on the verdict, and the court of appeals affirmed. The Supreme Court reversed and rendered judgment in favor of Doctor, holding that because there was no evidence that Patient's involuntary hospitalization by Doctor probably would have prevented her death, the evidence was legally insufficient to support the finding that his negligence proximately caused her death. View "Rodriguez-Escobar v. Goss" on Justia Law

Plaintiff-Appellant Jerry Doherty appealed a district court order that dismissed him as a party in the medical malpractice action against respondents Dr. Gordon Dixon and Blackfoot Medical Clinic. The district court, on September 16, 2010, ruled that because Doherty failed to disclose this claim as an asset in his Chapter 13 bankruptcy proceeding, he was judicially estopped from pursuing this claim against Respondents. The district court further ordered that Doherty take nothing from Respondents, and that the bankruptcy trustee be substituted as the party-plaintiff. On appeal, Plaintiff argued that the district court abused its discretion in granting summary judgment. Finding no abuse of discretion, the Supreme Court affirmed. View "McCallister v. Dixon" on Justia Law