In consolidated appeals, an executor of an estate sued the clinic and physician's assistant who treated the decedent for wrongful death. The trial court dismissed the case because plaintiff failed to file a certificate of merit, as was required by statute. The refiled case was dismissed as untimely. The executor appealed to the Vermont Supreme Court, which reviewed the trial court's dismissals and found that dismissal was proper in both cases. View "Quinlan v. Five-Town Health Alliance, Inc., dba Mountain Health Center" on Justia Law

The anti-SLAPP statute was inapplicable in this medical malpractice action filed by two minors and their parents against a doctor who reported suspected medical child abuse to the Department of Child Services (DSC).The doctor here argued that the lawsuit was a Strategic Lawsuit Against Public Participation (SLAPP) and that her report to DCS was protected speech shielded by Indiana’s anti-SLAPP statute. The trial court agreed with the doctor and dismissed the lawsuit. The Supreme Court reversed, holding (1) the anti-SLAPP statute was inapplicable because to be protected under the statute a person’s actions must be “in furtherance of” his or her right of petition or free speech and “in connection with a public issue” (see Ind. Code 34-7-7-5); and (2) because Plaintiffs’ lawsuit was not filed to stifle the doctor’s speech on a public issue but to recover damages for alleged medical malpractice, the suit was not the type of suit the anti-SLAPP statute was enacted to prevent. View "Gresk v. Demetris" on Justia Law

Mimms, an Indiana-licensed physician, prescribes controlled substances to patients. Several times, CVS Pharmacy employees informed Mimms’s patients that they would not fill their prescriptions. Mimms sued, alleging defamation. CVS argued that Mimms had no evidence that the speakers knew their statements were false. The court granted summary judgment as to five statements and denied judgment for four statements, reasoning there was a material question of fact regarding whether the speakers knew that their statements were false, given evidence that CVS’s corporate office had investigated Mimms and had not stopped stores from filling his prescriptions. The court rejected CVS’s argument that knowledge held by the corporate office could not be imputed to the speakers. The statements were: “CVS doesn’t fill Dr. Mimms’[s] prescriptions or prescriptions for any other pill mills.” “Mimms went to jail.” “Mimms has been … or will be arrested.” “Mimms is under DEA investigation. A jury found CVS liable for defamation per se and awarded Mimms $1,025,000. The Seventh Circuit reversed. Mimms proffered no evidence that the first three statements were made with actual malice. CVS is entitled to a new trial on the fourth statement; the court should have allowed CVS to present evidence that Mimms was the subject of a DEA investigation and regarding Mimms’s reputation. In a defamation per se case, damage to reputation is presumed but evidence regarding the extent of the harm to his professional reputation was critical for minimizing damages. View "Mimms v. CVS Pharmacy, Inc." on Justia Law

Mimms, an Indiana-licensed physician, prescribes controlled substances to patients. Several times, CVS Pharmacy employees informed Mimms’s patients that they would not fill their prescriptions. Mimms sued, alleging defamation. CVS argued that Mimms had no evidence that the speakers knew their statements were false. The court granted summary judgment as to five statements and denied judgment for four statements, reasoning there was a material question of fact regarding whether the speakers knew that their statements were false, given evidence that CVS’s corporate office had investigated Mimms and had not stopped stores from filling his prescriptions. The court rejected CVS’s argument that knowledge held by the corporate office could not be imputed to the speakers. The statements were: “CVS doesn’t fill Dr. Mimms’[s] prescriptions or prescriptions for any other pill mills.” “Mimms went to jail.” “Mimms has been … or will be arrested.” “Mimms is under DEA investigation. A jury found CVS liable for defamation per se and awarded Mimms $1,025,000. The Seventh Circuit reversed. Mimms proffered no evidence that the first three statements were made with actual malice. CVS is entitled to a new trial on the fourth statement; the court should have allowed CVS to present evidence that Mimms was the subject of a DEA investigation and regarding Mimms’s reputation. In a defamation per se case, damage to reputation is presumed but evidence regarding the extent of the harm to his professional reputation was critical for minimizing damages. View "Mimms v. CVS Pharmacy, Inc." on Justia Law

The First Circuit vacated in part the district court’s grant of summary judgment in favor of Defendants in this lawsuit alleging violations of the Emergency Medical Treatment and Active Labor Act (EMTALA) and claiming medical malpractice.Plaintiffs sued Hospital Pavia Hato Rey, APS Healthcare of Puerto Rico (APS), and two doctors. In granting summary judgment, the district court held that the action could not in “equity and good conscience” proceed without two necessary parties but that the parties could not be feasibly joined under Fed. R. Civ. P. 19. The judge found that complete diversity of citizenship of each plaintiff from each defendant was not met on the federal-EMTALA claim, and because no diversity jurisdiction existed, the court declined to exercise supplemental jurisdiction over the local-law claims. The First Circuit vacated the summary judgment for Hospital Pavia on the EMTALA claim and dismissed the local law claims, holding (1) the trial judge Fed. R. Civ. P. 19 analysis could not be sustained; and (2) this Court’s vacating part of the judge’s summary judgment ruling on the federal EMTALA claim undercut the analysis behind his supplemental jurisdiction decision. View "Delgado-Caraballo v. Hospital Pavia Hato Rey, Inc." on Justia Law

The Ninth Circuit affirmed the district court's dismissal of plaintiff's tort action against the United States for the tragic death of his wife. Plaintiff's wife was a lieutenant in the Navy and she died due to a complication following childbirth. The panel held that plaintiff's medical malpractice claims were barred under the Feres doctrine, which provided governmental immunity from tort claims involving injuries to service members that were incident to military service. View "Daniel v. United States" on Justia Law

Here, the Supreme Court reaffirmed its decision in Mahoney v. Doerhoff Surgical Services, Inc., 807 S.W.2d 503 (Mo. 1991), upholding the constitutional validity of Mo. Rev. Stat. 538.225’s requirement of an affidavit stating the plaintiff has the opinion of a legally qualified medical provider on the issues of breach of the standard of care and causation of damages in medical malpractice actions.Appellant appealed the dismissal of her medical malpractice case without prejudice for failure to file an affidavit of merit under section 538.225, arguing that the statute’s affidavit requirement violates Missouri’s open courts provision, her right to trial by jury, and the principle of separation of powers under the Missouri Constitution. The Supreme Court affirmed the judgment of the circuit court and reaffirmed the constitutional validity of requiring an affidavit from a qualified health care provider. View "Hink v. Helfrich" on Justia Law

Doretha Thompson appealed a judgment entered in favor of defendants, Baptist Memorial Hospital DeSoto, Inc. (BMH-D), and James Fortune, M.D., in a medical malpractice case. A surgical sponge inadvertently was left inside Thompson’s abdomen during an operation performed by Dr. Fortune to remove Thompson’s gallbladder in 2004. The sponge was not discovered until 2011, when Thompson presented to the emergency room in complaining of stomach pains. Dr. Fortune admitted at trial that the sponge inadvertently had been left in Thompson’s abdomen during the 2004 operation. And he admitted the sponge was the cause of Thompson’s 2011 injury and complications. But Dr. Fortune claimed he did not deviate from the applicable standard of care, which he contended did not require him to count or keep track of the number of surgical sponges used in the operation, but which allowed him to rely on an accurate sponge count conducted by a nurse and scrub technician assisting in the 2004 procedure, both of whom were employed by BMH-D. All parties provided expert testimony in support of their respective cases. The only issue the Mississippi Supreme Court found having merit was Thompson’s claim the jury was not properly instructed on the law in this case. That instructional error constituted reversible error, and Thompson was entitled to a new trial against both defendants. View "Thompson v. Baptist Memorial Hospital-DeSoto, Inc." on Justia Law

For a claim to sound in medical malpractice, the act from which the claim arises must be directly related to medical care or services, which require the use of professional judgment or skill.This case arose out of an action brought by Denise Townes on behalf of Cinnette Perry, and Perry, individually, against the National Deaf Academy, by and through its employees, for injuries Perry sustained while she was a resident at the Academy. Perry was injured when the Academy’s employees attempted to physically restrain her with a Therapeutic Aggression Control Techniques (TACT) hold. The trial court granted summary judgment for the Academy, concluding Townes alleged medical malpractice claims, rather than negligence claims, and failed to comply with the medical malpractice presuit requirements. The court of appeals reversed, holding that Townes’s claims sounded in ordinary negligence because the employees’ actions were “not for treatment or diagnosis of any condition” and did not require medical skill or judgment. The Supreme Court affirmed, holding that Townes’s claims did not arise from medical malpractice because the administration of a TACT hold was not directly related to medical care or services. View "National Deaf Academy, LLC v. Townes" on Justia Law

The Supreme Court quashed the decision of the court of appeal in this medical malpractice action, holding that the treating physician’s deposition testimony regarding how the physician would have treated Alexis Cantore had she arrived at Miami Children’s Hospital (MCH) earlier was admissible.Alexis and her parents (collectively, Plaintiffs) sued MCH and West Boca Medical Center, Inc. (WBMC), alleging that they had not provided proper medical care for Alexis, who suffered permanent brain damage after a brain herniation. Over Plaintiffs’ objection, counsel for WBMC was permitted to publish to the jury the deposition of the pediatric neurosurgeon at MCH who operated on Alexis, in which the physician answered hypothetical questions as to how he would have treated Alexis had she arrived at MCH an hour or two earlier. The jury returned a verdict in favor of WBMC and MCH. The court of appeals affirmed. The Supreme Court reversed, holding that the trial court erred in admitting the challenged deposition testimony pursuant to the Court’s decision in Saunders v. Dickens, 151 So. 3d 434 (Fla. 2014), and that the error was not harmless. View "Cantore v. West Boca Medical Center, Inc." on Justia Law