A party that has had judgment entered against it is not entitled to seek equitable subrogation from a subsequent tortfeasor when the judgment has not fully been sustained.Benjamin Hintz was injured when his scooter collided with an automobile driven by Emily Boozer. The car belonged to Boozer’s father, Otto, who was insured by Allstate. Petitioner, guardian of Hintz’s property, filed suit against the Boozers. The jury found the Boozers liable for Hintz’s injuries, ultimately awarding Petitioner $11,179,189. Allstate paid $1.1 million, its policy limit, but the Boozers did not pay the remainder of the judgment. Following the personal injury verdict, Petitioner filed a separate medical malpractice suit against medical provider defendants, alleging that Hintz’s injuries were exacerbated by medical negligence. Allstate and Emily Boozer filed complaints claiming they were entitled to equitable subrogation from the medical provider defendants. The trial court dismissed the complaints with prejudice. The Fifth District Court of Appeal reversed. The Supreme Court reversed and remanded the case to reinstate the dismissal of the equitable subrogation claims, holding that the Fifth District erred in holding that Respondents could assert claims for contingent equitable subrogation without first paying the judgment in full. View "Holmes Regional Medical Center, Inc. v. Allstate Insurance Co." on Justia Law

Appellants Mary and Terry Cohan brought a medical malpractice action against Appellees alleging that Appellees’ negligent treatment caused Mary’s breast cancer to progress undiagnosed for one year, which led to Mary suffering damages from a shortened life expectancy and physical and mental suffering. Appellees moved for a directed verdict on the basis that Appellants failed to make a prima facie case of causation and damages against them. The district court granted the motion, concluding that there was no sufficient proof of damage or causation other than the loss of chance of a lower rate of non-recurrence, which did not constitute a proper measure of damage at the time. The Supreme Court affirmed in part and reversed in part and remanded for a new trial, holding (1) this court declines to adopt the loss-of-chance doctrine; but (2) Appellants presented evidence that could have sustained a finding for Mary on the issue of damages under the traditional medical malpractice standard. View "Cohan v. Medical Imaging Consultants" on Justia Law

While hospitalized after giving birth, Kumari fell and broke her shoulder. Four months later, Kumari sent ValleyCare Health System a detailed letter describing her injury and the basis for her “medical negligence” claim. Kumari requested $240,000 and stated she would “move to the court” if she did not receive a check within 20 days. ValleyCare denied Kumari’s claim. More than a year after her injury, Kumari and her husband sued, alleging medical negligence and loss of consortium. The court granted ValleyCare summary judgment, concluding Kumari’s letter constituted a notice of intent to sue pursuant to Code of Civil Procedure section 364, which precludes a plaintiff from filing a professional negligence action against a health care provider unless the plaintiff has given that provider 90 days notice of the intention to commence the action. No particular form of notice is required; subdivision (d) tolls the statute of limitations for 90 days if the notice is served within the last 90 days of the one-year limitations period. The court of appeal affirmed that the complaint was time-barred, rejecting plaintiffs’ claim that an author’s subjective motivation for writing a letter to a health care provider is relevant when determining whether that letter is a notice of intent to sue under section 364. View "Kumari v. Hospital Committee for Livermore-Pleasanton Areas" on Justia Law

A potential plaintiff who provides pre-suit notice to one potential defendant is not required under Tenn. Code Ann. 29-26-121(a)(2)(E) to provide the single potential defendant with a HIPAA-compliant medical authorization.Plaintiff sent a pre-suit notice of her healthcare liability claim to a single healthcare provider and included a medical authorization. Dr. Radwan Khuri moved to dismiss the case, asserting that Plaintiff had failed to povide a HIPAA-compliant medical authorization under section 29-26-121(a)(2)(E). The trial court granted Dr. Khuri’s motion and dismissed the complaint, concluding that the authorization provided by Plaintiff did not substantially comply with HIPAA or with the requirements of section 29-26-121(a)(2)(E) and that Defendant was prejudiced by Plaintiff’s deficient authorization. The court of appeals affirmed. The Supreme Court reversed and remanded the case to the trial court for further proceedings, holding that a HIPAA-compliant medical authorization was not required in this case because Plaintiff’s pre-suit notice was sent to a single provider. View "Bray v. Khuri" on Justia Law

Jeffrey and Carol Haksluoto filed a medical malpractice claim against Mt. Clemens Regional Medical Center, General Radiology Associates, PC, and Eli Shapiro, DO, for injuries Jeffrey sustained after he was misdiagnosed in Mt. Clemens’s emergency room. Plaintiffs mailed a notice of intent (NOI) to file a claim on December 26, 2013, the final day of the two-year statutory period of limitations. Plaintiffs filed their complaint on June 27, 2014, which was 183 days after service of the NOI. Defendants moved for summary judgment, arguing that the suit was barred by the two-year statute of limitations. The trial court denied defendants’ motion. Defendants appealed, and the Court of Appeals reversed, holding that MCR 1.108 (the rule concerning the calculation of time) was best understood to signify that the 182-day notice period began on December 27, 2013 (the day after plaintiffs served the NOI) and expired on June 26, 2014, which meant that the notice period did not commence until one day after the limitations period had expired, and therefore filing the NOI on the last day of the limitations period failed to toll the statute of limitations. The Michigan Supreme Court granted plaintiffs’ application for review, finding the trial court was correct in its calculation of time. View "Haksluoto v. Mt. Clemens Regional Med. Ctr." on Justia Law

After Plaintiff gave birth to a child with cystic fibrosis (CF) Plaintiff filed suit to recover against the medical professionals who provided her with prenatal care and counseling. Plaintiff alleged that she would have opted to abort her pregnancy had she been timely provided with the child’s CF diagnosis while she was pregnant. The jury found that Defendants did not deviate from the standard of care when providing Plaintiff with prenatal care. The Supreme Court affirmed, holding that the district court (1) did not err by admitting collateral source testimony under the rule of curative admissibility; (2) did not abuse its discretion by ruling that certain expert testimony was within the scope of its corresponding disclosure and otherwise admissible; and (3) did not err by refusing to grant a new trial or alter the judgment in response to comments made by defense counsel during closing argument. View "Evans v. Scanson" on Justia Law

The main issue on certiorari review was whether the doctrine of informed consent required a physician to obtain the patient's consent before using a non-doctor to perform significant portions of a surgery for which the physician was engaged to perform thereby subjecting the patient to a heightened risk of injury. Dr. Mary Kirk, Dana Hurley's gynecologist, recommended Hurley undergo a total laparoscopic hysterectomy. Hurley agreed and Dr. Kirk scheduled the operation. In coordinating the surgery, Dr. Kirk specifically requested Art Bowen to assist with the operation. At the time of Dr. Kirk's request, Bowen had previously assisted Dr. Kirk in approximately 40 to 50 cases of which 90 percent were hysterectomies. Bowen, however, was neither Dr. Kirk's nor the hospital's employee. Bowen worked completely under the supervision and guidance of the employing surgeon. There was conflicting evidence as to whom, Dr. Kirk or Bowen, caused Hurley's injury. Dr. Kirk denied Bowen injured Hurley's right ureter despite her concession that Bowen performed the right side of the hysterectomy with the harmonic scalpel. Yet, Bowen's initial discovery response indicated Bowen's admission that he caused the injury. Both Dr. Kirk and Bowen conceded, however, that Bowen used the harmonic scalpel to cauterize and cut the round ligament, utero ovarian pedicle, broad ligament, and uterine artery. After reviewing the record in this case, the Oklahoma Supreme Court found that under Oklahoma's full disclosure rule, a physician must disclose and obtain the patient's informed consent. The Court reemphasized that full disclosure of all material risks incident to treatment must be made. "As such, no physician has carte blanche to delegate any or all tasks to a non-doctor. To hold otherwise, would obliterate a patient's freedom of choice and reinstate the paternalistic approach to medicine this Court rejected." The scope of the duty to inform is broad enough to include a physician's duty to inform the patient "who" will be performing significant portions of the procedure or surgical tasks. The Court of the Civil Appeals' opinion was vacated and the district court's summary judgment order was reversed as to all issues. This matter was remanded for further proceedings. View "Hurley v. Kirk" on Justia Law

In a medical malpractice action premised upon lack of informed consent, the issue presented was whether the trial court erred in refusing to strike prospective jurors for cause based upon their relationships to the case through their employer or their immediate family member's employer. The Pennsylvania Supreme Court concluded the trial court did not err in this regard. However, the Court concluded the trial court erred when it instructed the jury to consider information provided by the defendant surgeon's qualified staff in deciding the merits of the informed consent claim. Because a physician's duty to provide information to a patient sufficient to obtain her informed consent is non delegable, the Court reversed the Superior Court's order affirming the judgment entered in favor of the defendant, and remanded for a new trial. View "Shinal v. Toms M.D." on Justia Law

Plaintiff’s acknowledgement that she would not present an expert witness to prove her informed consent claim was not fatal to her case and thus was not a proper basis for entry of a directed verdict.Plaintiff brought this medical malpractice claim alleging that Defendant failed to obtain her informed consent before undertaking a surgical procedure on her. The trial court entered a directed verdict in favor of Defendant after Plaintiff conceded that she would not present an expert’s testimony. The court of appeals reversed, concluding that the trial court erred in dismissing the case too hastily since the evidence to be presented at trial may have established an exception to the general rule requiring expert testimony to establish a professional standard of care. The Supreme Court affirmed, holding that the trial court erred in granting the directed verdict. View "Argotte v. Harrington" on Justia Law

Under N.D.C.C. 28-01-46, the plain, ordinary and commonly understood meaning of the phrase "wrong organ" requires a doctor to perform a procedure on the incorrect organ; a wrong organ exception does not apply to performing an allegedly incorrect procedure on the correct organ. In 2014, Roxane and Tim Cartwright sued Dr. Beverly Tong and Great Plains Women's Health Center alleging professional negligence stemming from a medical procedure performed following a caesarean section. Defendant Tong performed a salpingectomy, removing Roxane Cartwright's fallopian tubes, rather than performing a tubal ligation, as Roxane Cartwright had consented to. As a proximate result of the negligence of Defendant Tong, Plaintiff alleged she was permanently sterilized and no longer able to bear children, nor could she have the ability to reverse the procedure in order to bear children, as she would have had, if a tubal ligation had been performed. The Cartwrights appealed a district court order and judgment dismissing their complaint without prejudice. The Cartwrights argued the district court erred in dismissing their complaint because the "obvious occurrence" and "wrong organ" exceptions to N.D.C.C. 28-01-46 applied to their claim. Finding no reversible error, the North Dakota Supreme Court affirmed the district court's order and judgment. View "Cartwright v. Tong, M.D." on Justia Law