Justia Medical Malpractice Opinion Summaries

During her birth in 2004, the 11-pound baby became lodged in the mother’s pelvis, so that nerves in her shoulder were injured (brachial plexus injury), resulting in a limited range of movement in her right arm A few months later her mother consulted a lawyer, who recommended against suing. Fifteen months later the mother consulted another lawyer; he agreed to represent her, but 16 months later, he withdrew. Finally, in 2010, the mother filed a malpractice suit against the Erie Family Health Center and the Center’s nurse-midwives who had provided her prenatal care. Erie is a private enterprise, but it receives grant money from the U.S. Public Health Service, so that its employees are deemed federal employees, 42 U.S.C. 233(g)(1)(A),(g)(4) and tort suits against it or its employees can be maintained only under the Federal Tort Claims Act, 42 U.S.C. 233(a),(g)(1)(A). The district court found the claim time-barred. The Seventh Circuit affirmed. While the limitations period for a tort suit under Illinois law would be eight years for a minor, 735 ILCS 5/13-212(b), the extension of the statute of limitations for a child victim does not apply to claims governed by the Federal Tort Claims Act. View "Arteaga v. United States" 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

The King County Superior Court relied on "Waples v. Yi," (234 P.3d 187 (2010)) in invalidating RCW 7.70.100(1) as applied to lawsuits against the State, including governmental agencies such as Harborview Medical Center. This case stemmed from a paragliding accident Petitioner Glen McDevitt suffered, for which he underwent surgery at Harborview. Petitioner sued Harborview for malpractice in relation to his treatment. Harborview moved for summary judgment based on the fact that Petitioner failed to comply with the 90 day presuit notice requirement of RCW 7.70.100(1). Harborview requested that Petitioner's lawsuit be dismissed with prejudice. In response, Petitioner argued that our decision in "Waples" invalidated the presuit notice requirement against both private and public defendants. Harborview then argued that the Supreme Court did not have occasion to consider the constitutional validity of the presuit notice requirement as applied to lawsuits against the State. The King County Superior Court denied Harborview’s motion for summary judgment. Harborview then appealed to the Supreme Court. Upon review, the Supreme Court reversed the superior court on the grounds that the legislature could establish conditions precedent, including presuit notice requirements, to inform the State of future cost and delay associated with court resolution of an issue. "[W]e hold that the presuit notice requirement of RCW 7.70.100(1) as applied to the State is a constitutionally valid statutory precondition for suit against the State because it was adopted by the legislature as provided in article II, section 26 of the Washington Constitution. View "McDevitt v. Harborview Med. Ctr." on Justia Law

The Board of Licensed Professional Counselors and Therapists (board) issued a final order suspending petitioner Rachel Weldon's license for two years and assessed costs against her. Petitioner asked the board to stay enforcement of that order pending judicial review. A few months later, the board issued an amended final order of suspension. Concluding that petitioner had not demonstrated irreparable harm and had failed to show a colorable claim of error, and that substantial public harm would result if it entered a stay, the board also entered a final order denying petitioner's request for a stay. Petitioner appealed the board's order assessing the fine and denying the stay. Petitioner also asked the Court of Appeals to enter an emergency stay to permit her to continue to practice until appellate court proceedings were complete. The Appellate Commissioner granted petitioner a temporary stay pending the board's response to petitioner's motion. In its response, the board asserted that ORS 676.210 precluded the Court of Appeals from entering a stay. The commissioner accepted the board's understanding of ORS 676.210 but, sua sponte, decided that, by precluding the exercise of the court's inherent authority to grant a stay, the statute violated the separation of powers provision of Article III, section 1, of the Oregon Constitution. The board appealed the part of the commissioner's order that declared ORS 676.210 unconstitutional. The Court of Appeals ultimately granted review of the matter and determined that petitioner demonstrated a colorable claim of error. It denied petitioner's motion for a stay and vacated that part of the appellate commissioner's order that permitted petitioner to file a supersedeas matter to stay the board's fine. Upon review of the appeals, the Supreme Court concluded that the board erred when it argued, and the Court of Appeals erred when it decided, that the Court of Appeals had no authority to issue a stay pending its decision on the merits of petitioner's appeal. Accordingly, the Supreme Court reversed the Court of Appeals and remanded the case for further proceedings. The Supreme Court stayed the board's order suspending petitioner's license until the Court of Appeals issued its decision on petitioner's request. View "Weldon v. Bd. of Lic. Pro. Counselors and Therapists" on Justia Law

In 2003, the doctor was charged by the Department of Financial and Professional Regulation with violating the Illinois Medical Practice Act in connection with electro-convulsive shock treatment of a patient. Administrative proceedings were stayed while the doctor pursued, among other things, a claim that a provision of the Department’s rules concerning evidentiary hearsay was invalid. The circuit court invalidated the rule in 2005, but later vacated its judgment. The appellate court reinstated the invalidation ruling in 2007, and the Department closed the case without prejudice in 2008. The doctor then filed a petition for a statutory award of his litigation expenses. The circuit court refused to award the fees, but the appellate court reversed. The Illinois Supreme Court reversed the appellate court and reinstated the denial, stating that the statutory fees that are available for invalidating an administrative rule must be sought while there is still jurisdiction over the matter. The doctor waited 33 months after the original circuit court order invalidating the rule and more than one year after the appellate court reinstated that order. The courts no longer maintained jurisdiction to hear his fee petition.View "Rodriquez v. Dep't of Fin. & Prof'l Regulation" on Justia Law

In this petition for original jurisdiction, defendants Southern New Hampshire Medical Center (SNHMC) and Bernard Bettencourt, Jr., D.O., sought review of a superior court's decision that three provisions of the statute governing medical injury screening panels (RSA 519-B:8-:10 (2007)), violated the Separation of Powers Clause of the State Constitution. Upon review, the Supreme Court concluded that in so ruling, the trial court erred. Nonetheless, the Court affirmed portions of the trial court's decision on alternative grounds. View "Petition of Southern New Hampshire Medical Center" on Justia Law

Appellant, a medical doctor practicing medicine in Kansas and Missouri, appealed from the district court's order denying her petition to revoke an administrative subpoena issued by the Kansas Board of Healing Arts. The Supreme Court affirmed the district court's determination that Appellant was not required to exhaust administrative remedies before seeking relief from the district court under Kan. Stat. Ann. 65-2839a(b)(3)(B). On the merits of the appeal, the Court affirmed the district court's denial of Appellant's petition based on its conclusion that the Board had authority under the Kansas Healing Arts Act to investigate and subpoena Appellant, a Kansas licensee who was practicing under the Act, even though the investigation was based upon her practice of medicine in Missouri. View "Ryser v. State" on Justia Law

Infant was born with severe brain damage. Respondent, Infant's mother, on behalf of Infant, applied for and received Medicaid benefits from the West Virginia Department of Health and Human Resources (DHHR). Respondent later filed a medical malpractice lawsuit on behalf of Infant. Subsequently, Respondent petitioned the circuit court for approval of the settlement, requesting that Medicaid not be reimbursed. DHHR intervened. The court granted the motion of Respondent for allocation of the $3,600,000 settlement, holding that, pursuant to Arkansas Department of Health and Human Services v. Ahlborn, a proportional reduction of DHHR's recovery was required based on the ratio of the settlement to the "full value" of the case among the various damages categories. Using this allocation method, the court reduced DHHR's statutory reimbursement from the requested amount of $289,075 to $79,040 and directed that the net settlement proceeds be placed in a special needs trust for the benefit of Infant. The Supreme Court reversed in part and affirmed in part, holding (1) a $500,000 cap on noneconomic damages was applicable in this case; and (2) under the formula applied in Ahlborn, the DHHR was entitled to approximately $98,080, less its pro rata share of attorney's fees and costs. Remanded. View "In re E.B." on Justia Law

At issue in this direct appeal to the Supreme Court was a statutory prerequisite to the obligation of the Insurance Department to defend certain medical professional liability actions asserted against health care providers, and to the requirement for payment of claims asserted in such actions from the Medical Care Availability and Reduction of Error Fund. Specifically, resolution of the appeal turned on when, under the governing statute, a "claim" is "made" outside a specified four-year time period. On June 4, 2007, Joanna Ziv filed a praecipe for a writ of summons naming Appellant Phillip Yussen, M.D. and other medical providers as defendants. A complaint was filed on August 2, 2007, alleging medical negligence last occurring on July 7, 2003. Appellant’s primary insurer, Pennsylvania Healthcare Providers Insurance Exchange, requested that the claim be accorded Section 715 status by the Insurance Department. The Department denied such request, however, on the basis that the claim had been made less than four years after the alleged malpractice. Appellant initially challenged this determination in the administrative setting, and a hearing ensued. Before the examiner, Appellant argued that, consistent with the policy definition of a "claim," the date on which a claim is made for purposes of Section 715 cannot precede the date on which notice is provided to the insured. Appellee, on the other hand, contended that a claim is made when it is first asserted, instituted, or comes into existence - including upon the tender of a demand or the commencement of a legal action - and that notice to the insured or insurer is not a necessary prerequisite. In this regard, Appellee Medical Care Availability & Reduction of Error Fund highlighted that Section 715 does require "notice" of the claim to trigger the provider's obligation to report the claim to the Fund within 180 days, but the statute does not contain such an express notice component in delineating the four-year requirement. The Commonwealth Court sustained exceptions to the hearing examiner's recommendation lodged by Appellee and entered judgment in its favor. In its review, the Supreme Court found "claim" and "made" as used in Section 715 ambiguous. The Court determined that for purposes of Section 715, the mere filing of a praecipe for a writ of summons does not suffice to make a claim, at least in absence of some notice or demand communicated to those from whom damages are sought. The Court remanded the case for entry of judgment in Appellant's favor. View "Yussen v. Med. Care Availability & Reduction of Error Fund" on Justia Law

Decedent was treated at a non-profit clinic, by volunteer physicians. The U.S. Department of Health and Human Services deemed those physicians to be Public Health Service employees (Public Health Service Act, 42 U.S.C. 233(o)), immune from suit under the Federal Tort Claims Act, 28 U.S.C. 1346, 2671-2680. A suit against the U.S. was the exclusive remedy for alleged malpractice at the clinic. Decedent also treated at a facility where physicians did not enjoy those protections. Her estate sued the U.S., the clinic, the other facility, the doctors at that facility, and their physicians' group. The district court granted summary judgment for the clinic, predicated on immunity under the New Jersey Charitable Immunity Act (NJCIA), and ultimately dismissed. The Third Circuit affirmed, except for remanding with respect to the physicians' group. The trial court properly held that the U.S. was immune from suit under the NJCIA, which provides that a similarly-placed private employer would be entitled to the defense. The court properly held that the treatment provided constituted emergency medicine, so that N.J. Stat. 2A:53A-41 applied and one of plaintiff's experts was not qualified to testify. The court erred in not considering treatment by a physicians' assistant in considering claims against her employer, the physicians' group.View "Lomando v. United States" on Justia Law