Justia Medical Malpractice Opinion Summaries

This case related to J.H.’s developmental dysplasia of the hip (DDH). Early diagnosis of DDH in children is important because early treatment is much easier, less invasive, less complicated, and more effective. Risk factors for a child to develop DDH include: breach birth, female gender, premature birth, first-born child, and high birth weight. J.H. was born five weeks short of full term in September of 2008. She was Galyena Hoffer's first child. Various doctors who examined J.H. during the first six weeks of her life did not observe signs of DDH. Between November 13, 2008, and October 5, 2009, Dr. Scott Shappard saw J.H. for five well-baby examinations. J.H. subsequently had problems while learning to walk that appear to have resulted from DDH. Because of these problems, the Hoffers took her to an orthopedic specialist, Dr. Stanley Waters, for two visits in February and December of 2010. Dr. Waters recognized that J.H. had DDH, but did not tell the Hoffers that she needed immediate treatment. In May of 2012, the Hoffers took J.H. to Dr. Larry Showalter. Dr. Showalter identified an inch and a half leg difference and the presence of an asymmetrical skin fold. Dr. Showalter immediately ordered x-rays and subsequently performed open reduction surgery in August of 2012, when J.H. was four years old. He testified that the results of the surgery have “so far” been good, but there are risks of “big complications” in the future. One of the Hoffers’ expert witnesses, Dr. David Butuk, opined that Dr. Shappard failed to comply with the community standard of health care practice because of his disregard for the presence of an obvious asymmetrical skin fold, a difference in leg length, and repeated expressions of parental concern. Dr. Shappard, Genesis Medical Center, P.A., and St. Alphonsus Regional Medical Center (collectively “Providers”) appealed an $847,974.46 judgment entered against them after a jury trial when Galyena Hoffer and her husband Randy sued on J.H.'s behalf. The jury found that Dr. Shappard negligently and recklessly failed to diagnose J.H.’s medical condition. The district court denied the Providers’ post-trial motions seeking to correct the verdict, a new trial, and judgment notwithstanding the verdict (JNOV). Providers appealed the denial of these motions and further asserted that the district court erred at trial by refusing to send an exhibit back to the jury room for deliberations and in its jury instructions. Finding no reversible error, the Supreme Court affirmed. View "Hoffer v. Shappard" on Justia Law

Tim Agee, individually and on the behalf of the estate of his wife, Eva, sued Baptist Health Richmond, Inc. and other medical care providers alleging that Eva’s death was the result of medical negligence. During discovery, Agee requested from Baptist Health the production of certain documents. Baptist Health refused to produce the documents, claiming that they were protected from disclosure by the Patient Safety and Quality Improvement Act of 2005. Agee filed a motion to compel, which the trial court granted in part. Thereafter, Baptist Health filed an original action in the court of appeals seeking a writ of prohibition. The court of appeals denied the request, citing the plurality opinion in Tibbs v. Bunnell. The Supreme Court vacated the trial court’s discovery order and remanded for further proceedings, holding that the correct result in this case lay in middle ground between the plurality and the dissenting opinions in Tibbs. Remanded with instructions for the trial court to undertake the review set forth in this opinion. View "Baptist Health Richmond, Inc. v. Hon. William Clouse" on Justia Law

On May 18, 2009, plaintiff’s 90-year-old mother was admitted to Peoria’s Proctor Hospital for a rectal prolapse. During Kathryn’s hospitalization, she experienced numerous complications. On May 29, 2009, Kathryn died. In March, 2010, plaintiff received Kathryn’s medical records. In April 2011, plaintiff received an oral opinion that Drs. Williamson and Salimath were negligent in treating Kathryn. On May 10, 2011, plaintiff filed a complaint against those doctors. On February 28, 2013, Kathryn’s CT scans were reviewed upon plaintiff’s request. Dr. Dachman opined that Dr. Rhode’s failure to properly identify certain findings caused or contributed to the injury and death of Kathryn. In March 2013, plaintiff filed suit under Wrongful Death Act (740 ILCS 180/1) and the Survival Act (755 ILCS 5/27-6), claiming medical malpractice against Rhode. Defendants argued that plaintiff had sufficient information more than two years before he filed his complaint to put him on inquiry to determine whether actionable conduct was involved, so that, even if the “discovery rule” applied, the complaint was untimely. The trial court dismissed the complaint with prejudice. A divided appellate court affirmed, reasoning that the discovery rule had no application to wrongful death or survival actions because both causes of action were legislatively created and not found at common law and that, even if that rule were applied, plaintiff’s complaint would be untimely. The Illinois Supreme Court reversed, finding the discovery rule applicable. A factual determination must be made as to when the statute of limitations began to run. Plaintiff filed his lawsuit less than two years after receiving the initial verbal medical expert report and within the four-year statute of repose. View "Moon v. Rhode" on Justia Law

ENT Associates of Alabama, P.A., A. Craig Chapman, M.D., and Baptist Ventures, Inc., d/b/a Montgomery Surgical Center, LLP ("MSC"), separately appealed a circuit court's interlocutory order denying their motions for a summary judgment. In 2011, Lauryn Hoke received medical care from Dr. Chapman, ENT Associates, and MSC (collectively, "the defendants"). On April 10, 2013, one day shy of two years after she was provided medical care by the defendants, Hoke filed a medical-malpractice claim against the defendants, complaining that the defendants deviated from the acceptable standard of medical care when, despite being aware of the fact that she was allergic to latex, they failed to provide a latex-free environment during both her surgery and her recovery and that, as a result, she suffered a severe allergic reaction that caused serious injuries. The complaint was signed by John Loeschen as "counsel for plaintiff" with an asterisk next to Loeschen's signature, noting below his address (which was Roanoke, Virginia) "motion pro hac vice to follow." The complaint included a certificate of service, signed by Loeschen, but did not include the name or signature of an attorney licensed to practice law in Alabama. It was undisputed that the complaint was filed electronically by an attorney licensed to practice law in Alabama, Benjamin Pool. The complaint did not include the addresses of the defendants or any instructions to the circuit clerk for service of process. On June 4, 2013, approximately 55 days after Hoke's complaint was filed, Loeschen filed a verified application for admission to practice under Rule VII of the Rules Governing Admission to the Alabama State Bar. On June 28, 2013, Dr. Chapman and ENT Associates filed a motion to strike the complaint and a motion to dismiss. On July 10, 2013, MSC also filed a motion to dismiss. The defendants argued that the complaint was signed and filed by an out-of-state attorney who had not been admitted to appear pro hac vice as an attorney in Alabama and that, under Rule VII, the complaint was a nullity and due to be stricken. Furthermore, they argued that because the two-year statute of limitations that applied to Hoke's medical-malpractice action had expired, the case should have been dismissed in its entirety with prejudice. The circuit court denied defendants' motions. Finding that Hoke's complaint was not "commenced" for statute-of-limitations purposes before the applicable statute of limitations expired, the Supreme Court found that the underlying action here was time-barred. The circuit court's judgment denying defendants' motions for summary judgment was reversed, and this case was remanded for further proceedings. View "Baptist Ventures, Inc. v. Hoke" on Justia Law

Borrayo sued Dr. Avery, alleging medical malpractice during the course of treating her for a condition known as thoracic outlet syndrome. The condition, which caused intense pain in her right shoulder and scapula, numbness and swelling, painful grip, and weakness when raising her right elbow, was secondary to repetitive stress at work. Avery performed surgery that involved the removal of the right first rib. Plaintiff suffered adverse symptoms approximately 12 months following the surgery, including pain upon moving her right arm, and difficulty in swallowing food. The trial court granted Dr. Avery summary judgment, after sustaining his objection to her sole expert witness’s declaration. The court of appeal reversed, stating that plaintiff’s expert witness, a physician licensed to practice medicine in Mexico, was qualified to provide an opinion about the standard of care to which defendant was held. View "Borrayo v. Avery" on Justia Law

Charles Ballard filed suit for wrongful death and medical malpractice against Silk Touch Laser, LLP (“Silk Touch”) and its owner Dr. Brian Kerr. In 2010, Charles’ wife Krystal Ballard underwent a liposuction and fat transfer procedure at Silk Touch in Eagle. Krystal died less than a week later from septic shock caused by unknown bacteria in her right buttock. Charles’ suit alleged that the bacteria that caused Krystal’s death were introduced into her body during the procedure at Silk Touch because certain reusable medical equipment was not properly disinfected and sterilized. The first trial ended in mistrial. Upon retrial, a jury returned a verdict in favor of Ballard. Silk Touch raises twenty-one issues on appeal, challenging several of the district court’s evidentiary rulings, the sufficiency of the evidence supporting the verdict, several of the jury instructions, and the district court’s award of costs and attorney fees. Silk Touch also alleged that the jury verdict should be overturned because the district court permitted the jurors to submit questions to witnesses and the district court made improper comments on the evidence during trial. The Supreme Court affirmed the district court except for the award of fees, which was vacated and the issue remanded for reconsideration. View "Ballard v. Kerr, M.D." on Justia Law

Kelli Barrett filed a complaint against Humboldt General Hospital and Dr. Sharon McIntyre, alleging, inter alia, battery based on an alleged lack of informed consent. Barrett filed the complaint without a supporting medical expert affidavit. Defendants moved to dismiss the complaint based on Nev. Rev. Stat. 41A.071’s requirement that an expert affidavit be filed with “medical malpractice” actions. The district court denied the motion as to the battery claim. Defendants filed this original petition for a writ of mandamus challenging the district court’s denial of their motion as Barrett’s battery claim. The Supreme Court granted the petition, holding that a battery claim against a medical provider based on an allegation of lack of informed consent is subject to section 41A.071’s medical expert affidavit requirement. View "Humboldt Gen. Hosp. v. Sixth Judicial Dist. Court" on Justia Law

On December 26, 2011, Mitchell Morrison arrived at the emergency department of St. Luke’s Regional Medical Center, Ltd. (“St. Luke’s”), in Meridian, complaining of chest pains. The emergency room doctor determined Mr. Morrison did not have a heart attack, but that he should consult with a cardiologist. On December 27, 2011, Barbara Morrison, Mr. Morrison’s wife, called for an appointment with the cardiologist, and the telephone was answered by a scheduler for St. Luke’s. The scheduler stated that the first available appointment for the cardiologist was in four weeks. Mrs. Morrison requested an earlier appointment, and she was given an appointment in three weeks with another St. Luke’s cardiologist. On January 11, 2012, Mr. Morrison died from a heart attack. On June 10, 2013, Mrs. Morrison, on her behalf and on behalf of her minor children, filed a wrongful death action against St. Luke’s, the emergency room doctor and the doctor's employer. Mrs. Morrison contended that St. Luke’s and the doctor's employer were liable based upon their own negligence and the imputed negligence of the doctor. St. Luke’s and the employer both filed motions for partial summary judgment seeking dismissal of the claims that they were negligent, and the district court granted those motions. The case was tried to a jury, which found that the emergency room doctor had not failed to meet the applicable standard of health care practice. Mrs. Morrison then timely appealed. Finding no reversible error, the Idaho Supreme Court affirmed. View "Morrison v. St. Luke's RMC" on Justia Law

In 2008, Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael D. Echemendia, Atlanta Women’s Health Group, P.C., Atlanta Women’s Health Group, II, LLC, and North Crescent Surgery Center, LLC (collectively “Echemendia”), for damages for injuries she sustained during an open laparoscopic tubal ligation that was allegedly negligently performed and which resulted in a perforated bowel. Zarate-Martinez attached to her complaint an affidavit from Dr. Errol G. Jacobi. She later identified Dr. Charles J. Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Dr. Ward and Dr. Jacobi, moved to strike the testimony from both doctors on the grounds that they did not qualify as experts, and also moved for summary judgment. Without any reference to some constitutional issues raised, on February 21, 2013, the trial court issued an order striking both experts’ testimony, but granted Zarate-Martinez 45 days in which to file an affidavit from a competent expert witness. Zarate-Martinez timely submitted another affidavit, this time from Dr. Nancy Hendrix, and Echemendia again moved to strike. Zarate-Martinez then filed a supplemental affidavit from Hendrix outside of the 45-day time frame, and, in her reply to the motion to strike, reasserted her constitutional challenges to OCGA 24-7-702 (c). Zarate-Martinez also asserted a new constitutional claim, specifically, that the provisions of OCGA 24-7-702 (c) (2) (A) and (B) were unconstitutionally vague. The trial court struck Hendrix's affidavits, and, without any affidavits from qualified medical experts to support her claim, the trial court dismissed Zarate-Martinez's complaint. The Court of Appeals affirmed and did not reach the constitutional issues since the trial court never addressed them. The Supreme Court vacated the Court of Appeals decision and that of the trial court with respect to the application of OCGA 24-7-702 (c) and remanded for the trial court to reconsider the admissibility of Hendrix's testimony. View "Zarate-Martinez v. Echemendia" on Justia Law

Plaintiff filed suit alleging claims stemming from his medical care and treatment at Mercy Hospital when he was a prison inmate at Corcoran State Prison. On appeal, plaintiff challenged the trial court's dismissal entered in favor of Mercy Hospital after the trial court sustained defendant’s demurrer to plaintiff’s complaint on statute of limitations grounds. Plaintiff argues that the trial court erred because it failed to apply the tolling provision set forth at Code of Civil Procedure section 352.1, which grants a two-year tolling of the statute of limitations to persons who are imprisoned “for a term less than for life.” The court concluded that when the Legislature enacted section 352.1 and continued to use the same language from former section 352, stating that tolling would be granted to persons imprisoned “for a term less than for life,” the Legislature did so with knowledge and in light of Grasso v. McDonough Power Equipment, Inc.'s prior judicial construction thereof, and with an intention to continue that construction of the statutory language. Accordingly, Grasso remains good law. The court concluded that the trial court erred in sustaining the demurrer on statute of limitations grounds, which error stemmed from the trial court’s failure to apply the tolling provision in section 352.1 to plaintiff. Therefore, the court reversed the judgment. View "Brooks v. Mercy Hospital" on Justia Law