Defendants sought ex parte interviews with a number of non-party medical providers in this medical malpractice action. Because of this, an issue arose regarding the scope of the physician–patient privilege in medical-malpractice actions. Section 13-90-107(1)(d), C.R.S. (2017), prohibited certain medical providers from revealing, in testimony or otherwise, information about a patient gathered in the course of treating that patient. That prohibition, however, was not unlimited. The dispute, as presented to the Colorado Supreme Court, did not implicate the physician–patient relationship between Kelley Bailey (“Bailey”) and Defendants, meaning section 107(1)(d)(I) was inapplicable. Instead, the issue here was whether the non-party medical providers were “in consultation with” Defendants such that section 107(1)(d)(II) removed that typically privileged information from the protection of the physician–patient privilege. The Supreme Court held the non-party medical providers were not in consultation with Defendants for the purposes of section 107(1)(d)(II). However, the Court remanded this case to the trial court for consideration of whether the Baileys impliedly waived the physician–patient privilege for the non-party medical providers. On remand, if the trial court concluded that the Baileys did waive that privilege, it should reconsider whether there is any risk that: (1) ex parte interviews with the non-party medical providers would inadvertently reveal residually privileged information; or (2) Defendants would exert undue influence on the non-party medical providers in the course of any ex parte interviews. View "In re Bailey v. Hermacinski" on Justia Law

Companion appeals raised questions about when a jury considering a medical malpractice case might also be instructed on issues of ordinary negligence. Sterling Brown Sr. sued the defendant medical centers and medical professionals individually and on behalf of his wife, Gwendolyn Brown, after she suffered catastrophic brain damage, allegedly from oxygen deprivation while undergoing a procedure to relieve back pain. Mrs. Brown died while this suit was pending, and the complaint was amended to add a wrongful death claim. A trial in which the court instructed the jury on both ordinary negligence and medical malpractice resulted in an award of nearly $22 million. A divided Court of Appeals affirmed. The Georgia Supreme Court granted the defendants’ petitions for certiorari to consider their argument that the Court of Appeals erred by concluding that the evidence supported a claim of ordinary negligence. "The plaintiffs’ case of medical malpractice was very strong. But a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice." The Supreme Court concluded the Court of Appeals erred in concluding that an ordinary negligence instruction was authorized by evidence that a doctor defendant responded inadequately to medical data provided by certain medical equipment during a medical procedure. Because the verdict was a general one such that the Court could not determine that the jury did not rely on this erroneous theory of liability, it reversed with instructions that the Court of Appeals on remand order a full retrial as to defendants. View "Southeastern Pain Specialists, P.C. v. Brown" on Justia Law

Companion appeals raised questions about when a jury considering a medical malpractice case might also be instructed on issues of ordinary negligence. Sterling Brown Sr. sued the defendant medical centers and medical professionals individually and on behalf of his wife, Gwendolyn Brown, after she suffered catastrophic brain damage, allegedly from oxygen deprivation while undergoing a procedure to relieve back pain. Mrs. Brown died while this suit was pending, and the complaint was amended to add a wrongful death claim. A trial in which the court instructed the jury on both ordinary negligence and medical malpractice resulted in an award of nearly $22 million. A divided Court of Appeals affirmed. The Georgia Supreme Court granted the defendants’ petitions for certiorari to consider their argument that the Court of Appeals erred by concluding that the evidence supported a claim of ordinary negligence. "The plaintiffs’ case of medical malpractice was very strong. But a very strong case of medical malpractice does not become a case of ordinary negligence simply due to the egregiousness of the medical malpractice." The Supreme Court concluded the Court of Appeals erred in concluding that an ordinary negligence instruction was authorized by evidence that a doctor defendant responded inadequately to medical data provided by certain medical equipment during a medical procedure. Because the verdict was a general one such that the Court could not determine that the jury did not rely on this erroneous theory of liability, it reversed with instructions that the Court of Appeals on remand order a full retrial as to defendants. View "Southeastern Pain Specialists, P.C. v. Brown" on Justia Law

The trial court’s appointment of a guardian ad litem (GAL) on behalf of a minor removes that minor’s disability of minority and starts the running of the statute of limitations. Therefore, the failure of a court-appointed GAL to pursue the minor’s claim within the statute of limitations bars the claim.In the instant case, a minor plaintiff, by and through a court-appointed GAL, filed an action against defendant-health providers, alleging that Defendants’ medical negligence led to Plaintiff’s brain injury. The trial court dismissed the claims as time barred. Plaintiff appealed, arguing that the plain language of N.C. Gen. Stat. 1-17(b) tolled the limitations period until Plaintiff reached the age of nineteen. The court of appeals agreed and reversed. The Supreme Court reversed, holding that the appointment of the GAL removed Plaintiff’s disability of minority, which eliminated the tolling and started the running of the applicable three-year statute of limitations for medical malpractice claims. View "King v. Albemarle Hospital Authority" on Justia Law

Johnny Eades sought treatment from numerous healthcare providers, including Petitioners Palmetto Primary Care Physicians, LLC and Trident Emergency Physicians, LLC, for a blockage and aneurysm of the left iliac artery in July and August of 2009. Three years later, Mr. Eades and his wife filed a Notice of Intent to File Suit (NOI) to bring a medical malpractice action in Charleston County, South Carolina. Two days after filing the NOI, the Eades filed answers to interrogatories listing Dr. Paul Skudder as an expert witness, along with an affidavit from Skudder pursuant to section 15-79-125 of the South Carolina Code (Supp. 2016). This case required the South Carolina Supreme Court to decide whether an expert witness affidavit submitted prior to the commencement of a medical malpractice action complied with section 15-36-100(A) of the South Carolina Code (Supp. 2016). The trial court found the affidavit insufficient based on the expert's practice area and dismissed the NOI. The Supreme Court reversed, finding the statute permitted the production of an affidavit from an expert who did not practice in the same area of medicine as the allegedly negligent doctor. View "Eades v. Palmetto Cardiovascular" on Justia Law

Johnny Eades sought treatment from numerous healthcare providers, including Petitioners Palmetto Primary Care Physicians, LLC and Trident Emergency Physicians, LLC, for a blockage and aneurysm of the left iliac artery in July and August of 2009. Three years later, Mr. Eades and his wife filed a Notice of Intent to File Suit (NOI) to bring a medical malpractice action in Charleston County, South Carolina. Two days after filing the NOI, the Eades filed answers to interrogatories listing Dr. Paul Skudder as an expert witness, along with an affidavit from Skudder pursuant to section 15-79-125 of the South Carolina Code (Supp. 2016). This case required the South Carolina Supreme Court to decide whether an expert witness affidavit submitted prior to the commencement of a medical malpractice action complied with section 15-36-100(A) of the South Carolina Code (Supp. 2016). The trial court found the affidavit insufficient based on the expert's practice area and dismissed the NOI. The Supreme Court reversed, finding the statute permitted the production of an affidavit from an expert who did not practice in the same area of medicine as the allegedly negligent doctor. View "Eades v. Palmetto Cardiovascular" on Justia Law

In this medical malpractice action, the trial court did not abuse its discretion in excluding certain statements proffered by Plaintiff.On appeal, Plaintiff argued that the trial court erred in excluding statements that she argued should have been admitted as lay opinion under Va. R. Evid. 2:701 and that the trial court erred in excluding a statement the decedent made after the surgery, contending that the statement should have been admitted under the Deadman’s Statute, Va. Code 8.01-397. The Supreme Court disagreed, holding (1) the lay opinion testimony concerning what was disclosed to the patient in this case and what the patient may have one was speculative and inadmissible; and (2) the trial court properly excluded a statement the patient made after the surgery as irrelevant. View "Martin v. Lahti" on Justia Law

In this medical malpractice action in which a jury rendered a verdict in favor of Plaintiff, the circuit court erred in denying Defendant’s motion to strike Plaintiff’s evidence on the ground that Plaintiff failed to prove causation.Plaintiff sued Defendant-doctor, alleging that Defendant negligently perforated her small bowel during a laparoscopic total hysterectomy, failed to detect the perforation, and failed to obtain a general surgery consultation to repair the injury. At the end of Plaintiff’s case-in-chief, the circuit court denied Defendant’s motion to strike the evidence. The jury returned a verdict in Plaintiff’s favor. The Supreme Court reversed, holding that Plaintiff did not prove causation and was unable to do so from the evidence presented to the trial court, and therefore, the circuit court should have granted Defendant’s motion to strike the evidence on the basis of lack of causation. View "Dixon v. Sublett" on Justia Law

The circuit court abused its discretion in this medical malpractice action when it refused to qualify Plaintiff’s only proposed expert witness (Dr. Aboderin) and granted summary judgment for Defendant.After voir dire, Defendant moved to exclude Dr. Aboderin’s testimony on the ground that she failed to meet the two-prong test of Va. Code 8.01-581.20, which governs qualification of medical malpractice expert witnesses. The trial court sustained Defendant’s objection, thus excluding Dr. Aboderin from testifying. Because Dr. Aboderin was Plaintiff’s only proposed expert witness, Plaintiff was unable to establish that Defendant breached the standard of care or that any breach was the proximate cause of her daughter’s injuries. The Supreme Court reversed, holding that the circuit court abused its discretion in refusing to qualify Dr. Aboderin as an expert witness because there was evidence that she satisfied both the knowledge and active clinical practice requirements of section 8.01-581.20. View "Holt v. Chalmeta" on Justia Law

Plaintiff was treated for shoulder problems beginning in 1998; defendant performed her surgery in 1999. Post-operative visits followed during the next year. After her one-year appointment, plaintiff did not see defendant for 19 months. Defendant performed another surgery in January 2002. Plaintiff returned for a post-operative visit in April. Plaintiff returned in September 2003, followed by a gap in treatment. Plaintiff returned in April 2006. Defendant referred plaintiff to his partner for a third surgery because defendant was no longer performing shoulder surgeries. She consulted defendant's partner but began seeing a new surgeon in July 2006. Plaintiff sued in September 2008, alleging that defendant negligently performed her original surgery and subsequently failed to diagnose the flawed surgery. The Supreme Court denied a motion to dismiss.The Court of Appeals affirmed. CPLR 214-a provides that a medical malpractice action must be commenced within 2½ years of the relevant act or the "last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the [challenged] act, omission, or failure." A claim's accrual date is at the end of treatment "when the course of treatment which includes the wrongful acts or omissions has run continuously and is related to the same original condition or complaint." Plaintiff raised issues of fact as to whether she and defendant intended a continuous course of treatment. View "Lohnas v Luzi" on Justia Law