In this health care liability case Plaintiff sent Defendants pre-suit notice of the claim via FedEx. Defendants moved for summary judgment, alleging that Plaintiff failed to comply with the requirements of Tenn. Code Ann. 29-26-121(a)(3)(B) and (a)(4) by not using certified mail, return receipt requested, through the U.S. Postal Service. The trial court dismissed the complaint, concluding that strict compliance with the manner and proof of service requirements of sections 29-26-121(a)(3)(B) and (a)(4) was required. The court of appeals affirmed. The Supreme Court reversed, holding (1) the manner and proof of service prescribed by sections 29-26-121(a)(3)(B) and (a)(4) may be achieved through substantial compliance; (2) delivery of pre-suit notice by private commercial carrier and filing of proof with the complaint constitutes substantial compliance with sections 29-26-121(a)(3)(B) and (a)(4); and (3) because Defendants received notice and were not prejudiced by the manner of service, Plaintiff’s provision of pre-suit notice to Defendants through the use of FedEx and filing of proof with the complaint constituted substantial compliance with the manner and proof of service requirements of the pre-suit notice statute. Remanded. View "Arden v. Kozawa" on Justia Law

Lee V. Phillips IV, by and through his mother Santhonia Hector, and Hector individually (collectively “Plaintiffs”), brought a medical malpractice action against certified nurse midwife (“CNM”) Marcia Harmon, Deborah Haynes, M.D., Eagles Landing OB-GYN Associates, P.C., Eagles Landing OB-GYN Associates II, LLC, and Henry Medical Center, Inc. (collectively “Defendants”). Plaintiffs alleged that Defendants’ negligence caused Phillips to suffer oxygen deprivation shortly before birth, resulting in severe, permanent neurological injuries, including spastic quadriplegia, blindness, and an inability to speak. A jury returned a verdict for the Defendants. Plaintiffs filed a motion for a new trial, alleging that the trial court erred by engaging in a communication with the jury when neither the parties nor their attorneys were present, and by refusing to give their requested jury charge on the spoliation of evidence. The trial court denied the motion, and Plaintiffs appealed to the Court of Appeals. The Court of Appeals concluded that the trial court did not abuse its discretion in refusing to give Plaintiffs' requested charge on spoliation of evidence; however, it reversed the trial court’s denial of Plaintiffs’ motion for new trial after determining that Plaintiffs were entitled to a new trial because the trial court responded to a note from the jury during the course of their deliberations without ever advising the parties or their counsel that the communication had taken place. After review, the Supreme Court found that the trial court's exercise of discretion in ruling that Defendants had no duty to preserve certain paper fetal monitor strips, and the appellate court's upholding of that ruling, appeared to rest on a legally incorrect premise that a defendant's duty to preserve evidence required actual notice of a claim or litigation. "Consequently, the judgment of the Court of Appeals in regard to the spoliation issue cannot be upheld, and to the extent that the Court of Appeals cases dealing with the issue of spoliation may be read as endorsing the erroneous analysis used in this case." The Court affirmed in all other respects. View "Phillips v. Harmon" on Justia Law

Plaintiff, individually and as the administrator of the estate of his son, Jonathan Radzik, sued Francisco Sylvester, a board certified specialist in pediatrics, and related healthcare entities (collectively, Defendants), alleging that Sylvester had negligently prescribed Remicade for Jonathan, which led to Jonathan’s death. At issue here was the trial court’s grant of Plaintiff’s motion to compel electronic discovery of the hard drives of certain computers used by Sylvester. Defendants filed an interlocutory appeal of the discovery order. The Appellate Court dismissed the appeal for lack of a final judgment. The Supreme Court affirmed, holding that the discovery order did not constitute a final judgment. View "Radzick v. Conn. Children's Med. Ctr." on Justia Law

This action arose from medical treatment received by decedent Gary Rakes at the Bluefield Regional Medical Center between September 3, 2010 and September 5, 2010. The decedent died on September 5, 2010. Respondent, as personal representative of the estate of Gary Rakes, filed this medical malpractice action alleging that Defendants, including Dr. Delilah Stephens, deviated from the standard of care by prescribing and administering excessive doses of Haldol and Seroquel to the decedent. After a jury trial, the jury awarded Respondent $500,000 in non-economic damages and $500,000 in punitive damages. A judgment order in the amount of $810,000 was entered. Dr. Stephens appealed. The Supreme Court affirmed, holding that the circuit court (1) did not err in denying Dr. Stephens’s motion for judgment as a matter of law or, in the alternative, motion for a new trial; (2) did not err in denying Dr. Stephens’s motion for summary judgment on the issue of proximate causation; and (3) did not err in denying Dr. Stephens’s motion for summary judgment regarding Respondent’s claim for punitive damages. View "Stephens v. Rakes" on Justia Law

When Colonel Antoon (U.S. Air Force, retired) learned that he needed prostate surgery, he researched options and specialists, which led him to the Cleveland Clinic and Dr. Kaouk. Antoon interviewed Kaouk and arranged for him to perform the operation. When Antoon experienced complications following the surgery, his further investigation caused him to suspect that Kaouk did not actually perform the surgery, but passed off major duties to a surgical resident. Antoon lodged several complaints and filed a medical malpractice action in state court, which was dismissed voluntarily. Antoon then filed suit as a relator under the qui tam provisions of the False Claims Act (FCA), premised on the theory that Kaouk billed the government for work he did not perform, and promoted the robotic surgical device he recommended in violation of the anti-kickback statute, 42 U.S.C. 1302a-7b(b)(2). The United States declined to intervene. The district court dismissed. The Sixth Circuit affirmed, based on a jurisdictional bar. Antoon does not have any direct and independent knowledge of the information upon which his fraud allegations are based; therefore he cannot qualify as an original source of that information, and cannot establish standing as a qui tam plaintiff under the FCA, 31 U.S.C. 3730(e)(4)(B). View "Antoon v. Cleveland Clinic Found." on Justia Law

Plaintiff in the underlying medical malpractice action sought a writ of prohibition to prevent the trial court from enforcing its order permitting counsel for the defendant in the underlying action (Dr. Castro) to contact Plaintiff’s treating physicians ex parte. The Court of Appeals declined to issue a writ, finding (1) no Kentucky law prohibits the trial court from authorizing ex parte correspondence with nonexpert treating physicians, and (2) the trial court’s order did not violate any right Plaintiff had to privacy of her medical information because the order did not compel any disclosure. The Supreme Court affirmed, holding (1) HIPAA does not prohibit ex parte interviews with treating physicians but does regulate the protected health information to be disclose in ex parte interviews; (2) Kentucky law places no restrictions on voluntary ex parte interviews with non expert treating physicians; and (3) the challenged order at issue in this case did not satisfy HIPPA procedural requirements for the disclosure of protected health information, but because the order expressly withheld the necessary authorization, a writ need not issue. View "Caldwell v. Hon. A.C. McKay Chauvin" on Justia Law

In 1986, when Plaintiff was three years old, he underwent surgery to correct a congenital heart malformation. In 2008, Plaintiff underwent exploratory surgery, which revealed that a portion of an atrial catheter had been left in his heart during surgery in 1986. In 2009, Plaintiff commenced this action alleging that, while treating him, Defendants negligently left the foreign body in his heart, which caused him to suffer serious and permanent injuries. Defendants moved to dismiss the complaint, contending that the action should have been filed ten years after they allegedly failed to remove the entire catheter and that the foreign object exception for medical malpractice actions did not apply. Although Plaintiff sued within one year of discovering the tubing, Defendants contended that the catheter was a fixation device, not a foreign object. Supreme Court granted Defendants’ motion and dismissed Plaintiff’s claims with prejudice. The Appellate Division affirmed. The Court of Appeals reversed, holding that the fragment at issue in this case qualified as a foreign object for purposes of the discovery rule of N.Y. C.P.L.R. 214-a. View "Walton v. Strong Mem’l Hosp." on Justia Law

The trial court in this case granted defendant Rideout Memorial Hospital’s motion for summary judgment, finding that, as a matter of law, the emergency room physician who failed to diagnose and treat decedent’s brain hemorrhage was not an agent of the hospital. On appeal, the surviving children argued that, despite the hospital’s boilerplate admissions form and signage stating the emergency room physicians are independent contractors, they presented triable issues of material fact whether their mother entrusted herself to the hospital, whether the hospital selected the physician, whether their mother reasonably believed the doctor was an agent of the hospital, and whether the form and signage could give notice of the employment status of the emergency room physician to a patient suffering acute pain at a meaningful time in a meaningful manner. Based on analogous cases in California and around the country, the Court of Appeal concluded the trial court erred in granting summary judgment in favor of the Hospital based on a review of the facts entered into the trial court record. The case was remanded to the trial court for further proceedings. View "Whitlow v. Rideout Memorial Hospital" on Justia Law

After Chan’s mother died from internal hemorrhaging related to Coumadin use following heart surgery, Chan successfully sued Curran for medical malpractice. Chan challenged the trial court’s post-verdict reduction of the $1 million noneconomic damages award to $250,000, as required by the Medical Injury Compensation Reform Act of 1975 (MICRA), Civ. Code 3333.2. Chan challenged the MICRA cap as violating equal protection, due process and the right to jury trial, based on her assertion she is entitled to seek noneconomic damages sufficient to cover attorney fees. The court of appeal rejected Chan’s claims, stating that the legitimate debate over the wisdom of MICRA’s noneconomic damages cap remains a matter for the Legislature and state electorate. View "Chan v. Curran" on Justia Law

This was the third of appeal of this medical malpractice action. The third appeal concerned Plaintiff’s claim that Defendant-doctor was negligent for failing to refer Plaintiff to a doctor who specialized in repairing vesicovaginal fistulas. The trial court granted Defendant’s motion in limine precluding Plaintiff from proffering statements from Defendant’s deposition regarding her treatment of three former patients who suffered vesicovaginal fistulas. The court further reaffirmed its earlier finding that Plaintiff’s proffered evidence regarding Defendant’s treatment of the three patients was not relevant. Moreover, the circuit court reaffirmed most of the redactions previously made to Defendant’s deposition. The jury returned a verdict for Defendant. The Supreme Court affirmed, holding that the circuit court did not err (1) when it denied admission of evidence regarding Defendant’s treatment of other patients; and (2) did not err by denying admission of expert testimony that Defendant breached the standard of care by failing to inform Plaintiff that repairing vesicovaginal fistulas was not her specialty. View "St. John v. Peterson" on Justia Law