Articles Posted in Medical Malpractice

Although a surprise witness is a common theme on TV and in movies, a surprise witness at a trial is rare. Generally, parties are required to disclose their witnesses before trial, and often courts do not allow surprise witnesses to testify. The idea is that prior to trial, all of the parties know generally what to expect so that they will not be prejudiced by a surprise.

Doctor's White CoatThe Identification of Witnesses Through Pre-Trial Discovery

The process of discovery is a pre-trial procedure in which the parties can obtain information from each other through different discovery tools. The goal of discovery is to uncover the evidence that will or could be used at trial. For that reason, during discovery, one party can require another party to identify the witnesses who have knowledge about the incident at issue, as well as the witnesses they plan to call at trial.

In New Mexico, a trial court has broad discretion to allow or bar witnesses whose identities were not revealed in pre-trial discovery. That is, if a party discloses the identity of a witness late, the trial court can decide whether to allow the late-disclosed witness to testify. This decision generally depends on the circumstances, and the court may choose to impose a less harsh sanction in some cases.

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Recently, the Supreme Court of Mississippi remanded a negligence case back to the trial court for a new trial after the court determined that the trial court allowed improper expert witness testimony and an improper closing argument. The case stemmed from a 2008 incident in which a woman who was in a nursing home fell and broke her hip following a surgical procedure to repair her fractured hip. Sadly, the woman ended up passing away several days after the fall.

Hospital BedsHer family brought a lawsuit against the nursing home, making several claims, including:

  • Failing to provide the appropriate number of staff for the residents;
  • Failing to provide a sufficient nursing plan;
  • Failing to take reasonable steps to prevent or eliminate dangers in the nursing home; and
  • Failing to seek a doctor’s guidance with regard to the specific needs of the woman.

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Recently, a California appellate court released its opinion regarding a medical malpractice lawsuit stemming from a 2012 accident. According to the court’s recitation of the facts, the plaintiff was a patient at the defendant hospital, and he was being transferred by an ambulance agency, another named defendant. During the transfer, the gurney tipped over, and the plaintiff fell to the ground, suffering several injuries, including fractures to his patella and clavicle.

AmbulanceAbout two years later, the man filed a lawsuit against the hospital and ambulance agency, alleging several causes of action, including premises liability, negligence, and personal injury. The statute of limitations for general negligence cases in the jurisdiction is two years, but it is only one year for medical malpractice cases. Both defendants filed summary judgment motions, claiming the case was one of medical malpractice and asking the court to dismiss the case. Several months later, the trial court granted the summary judgment motions.

After the court granted the defendants’ motions, the plaintiff then filed an appeal, asking a higher court to review the lower court’s decision to classify his case as a medical malpractice claim. However, the appellate court found that the transfer of the plaintiff on the gurney was “related to” his medical treatment, and therefore the claim should be considered one of medical malpractice. Thus, the one-year statute of limitations applies to both the case against the hospital as well as the case against the ambulance company.

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An Illinois court recently published an opinion reversing a lower appellate court’s ruling in favor of the defendant in a medical malpractice and wrongful death claim. The plaintiff’s claim had been dismissed by the district court because it was filed after the statute of limitations for medical malpractice claims appeared to have run. The state high court disagreed with the lower court’s ruling that the claim was time-barred and applied what is known as the “discovery rule” to the plaintiff’s claim, ultimately extending the statute of limitations to permit the plaintiff’s claims to be heard. Since the dismissal of the plaintiff’s case was reversed, he may receive compensation through a settlement or trial on his claim that the defendant’s negligence resulted in his mother’s death.

DoctorThe Plaintiff’s Mother Died Nine Days after Having a Procedure Performed by the Defendants

The plaintiff in the case of Moon v. Theis is the son of a woman who died of apparent respiratory depression while under the care of the defendants on May 29, 2009. The plaintiff’s mother was a patient of the defendant whose condition worsened after having a perineal proctectomy performed by the defendant earlier in the month. The plaintiff filed the first medical malpractice complaint against the defendant on May 10, 2011, which alleged the defendant failed to properly treat his mother’s respiratory distress. In February 2013, during proceedings related to that lawsuit, the plaintiff obtained a CT scan of his mother from before her death and discovered other acts of alleged negligence by the defendant that appeared to contribute to her death. In March 2013, the plaintiff filed a separate wrongful death lawsuit against the defendants, alleging that the defendant’s previously undiscovered negligence was a cause of his mother’s death and seeking compensation on her behalf.

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The Supreme Court of Idaho recently released an opinion that affirmed a jury’s award of nearly $4 million to a plaintiff, based upon allegations that his wife’s death was caused by a liposuction procedure that was negligently performed by the defendant. The defendant had appealed the verdict, based in part on allegations that the trial judge improperly commented on the plaintiff’s evidence at trial, which illegitimately influenced the jury’s decision. As a result of the appellate court’s rejection of the defendant’s arguments made on appeal, the defendant will be required to pay the entire judgment awarded to the plaintiff.

StethoscopeThe Plaintiff’s Wife Died After an Unknown Bacteria Was Introduced into Her Body During a Medical Procedure

The plaintiff in the case of Ballard v. Kerr was a man whose wife passed away after allegedly contracting an infection during a liposuction procedure that was performed by the defendant. According to the facts discussed in the appellate opinion, the plaintiff’s complaint alleged that the defendant failed to properly disinfect and sterilize certain medical equipment that was used in the procedure, introducing bacteria into her body and causing the infection, which ultimately resulted in her death by septic shock approximately four days after the surgery.

The Jury Finds the Defendant’s Negligence Was the Proximate Cause of the Woman’s Death

After a two-week trial on the plaintiff’s wrongful death claim, the jury returned a verdict in favor of the plaintiff and awarded him $3.8 million in economic and non-economic damages. The jury additionally reached the conclusion that the defendant was more than simply negligent and acted recklessly in causing the woman’s death, which resulted in additional damages being awarded to the plaintiff.

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A state appellate court recently published an opinion in a medical negligence case stemming from a 2011 surgery. The case was brought by a couple after the wife underwent surgery at a local hospital and subsequently suffered a stroke. Approximately two years after the surgery, the couple brought a claim against the manufacturer of the medical device that the respondents used during the procedure. This lawsuit did not name the doctor who performed the surgery or the hospital where it was performed.

White CoatSeveral months later, and after the three-year statute of limitations had expired, the plaintiffs filed a second amended complaint. The couple wanted to add the doctor and hospital as new parties to the lawsuit under a medical malpractice theory. The hospital and doctor moved for summary judgment and argued that the statute of limitations barred the lawsuit because although the original case was filed before the statute of limitations had expired, the amended complaint naming them was untimely. The district court granted these motions, and the couple then appealed. The appellate court held that the defendants were correct and that the case against them should be dismissed

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An appellate court released an opinion in a medical malpractice claim brought by the estate of an individual who died while in the care of a hospital. In the case, a man was admitted into the hospital after complaining of severe right side pain. He was given narcotic pain medication but had a bad reaction to it, and it was discontinued. About two days later, another doctor at the hospital prescribed a different pain medication. When the nurses arrived in the morning, the man was found lying across his bed and was unresponsive.

Alarm ClockUnfortunately, attempts to rescue him were unsuccessful, and he passed away. The hospital contacted the family, and the man’s wife claimed that the hospital improperly obtained her consent to perform a private autopsy. The family brought a medical malpractice lawsuit against the hospital and claimed that the hospital failed to notify the medical examiner. However, this claim was brought three years after the death. A jury did not find against the hospital on the medical malpractice claim but did find that the hospital improperly obtained consent.

The lower courts all concluded that the autopsy claims were not health care claims, and thus the statute of limitations did not bar that lawsuit, but the medical malpractice claim was past the statute of limitations.

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Earlier this month, a Pennsylvania appeals court heard and affirmed a $3 million verdict against a subsidiary of Johnson and Johnson arising from a product liability case. The lawsuit stemmed from an incident in which a child suffered severe birth injuries after the mother was prescribed and took a migraine medicine during her pregnancy.

White PillsAccording to the court’s decision, the woman was prescribed the medicine while she was pregnant, and her daughter was subsequently born with a bilateral cleft palate and lip. The mother and father claimed that the drug manufacturer was liable for the injuries because they failed to warn the mother’s doctor of the risks associated with taking the medicine, specifically the risk of birth injuries when the medicine is taken early during pregnancy.

At the trial level, the jury found that the company was liable for the injuries. The jury awarded $1.5 million in non-economic damages and $1.5 million to the parents in potential health care costs. The company then went on to appeal the $3 million dollar verdict, claiming that they were unable to change the pregnancy warning level without the permission of the FDA. However, the three judges on the appeals panel disagreed and found that the drug manufacturer still had the duty to warn doctors of the potential risks. The judges held that the manufacturer’s argument did not adequately differentiate between the potential risk that their label implied and the scientifically known risk. The judges also found that the evidence presented showed that the manufacturer knew of the potential risk of specific birth defects, including those that affected the child. The court also found that the manufacturer should have made the risks known to prescribing doctors.

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The Supreme Court of Hawaii recently released an opinion addressing a physician’s duty to disclose information to a patient. The opinion stemmed from a 2008 incident when the plaintiff suffered a lower back injury at work and sought treatment from his primary care doctor. The plaintiff was given conservative treatment, and when that did not work, he was referred to a specialist. The plaintiff then signed a consent form to an operation on his lumbar disc, and the surgery was performed.

Medical DoctorThe language on the consent form indicated that he was informed of the significant risks and that the doctor did not promise a result or cure. There were additional forms that did not provide a place for the patient’s signature. Following the surgery, the plaintiff began suffering more pain and discomfort. He then consulted with another doctor, who stated that the surgery “should have been at a different level” and that his subsequent additional pain was because of the surgery.

The plaintiff filed a complaint against the doctor, alleging medical negligence and failure to obtain informed consent. The defendants moved for summary judgment, claiming that the case should be decided in their favor because the plaintiff did not have medical expert testimony as to the materiality of the risk. The Supreme Court vacated the lower court’s judgment and found that the common law factors did not apply, the defendant was not entitled to judgment as a matter of law, and the lower court erred in their decision.

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Late last month, the Supreme Court of the State of Idaho released their opinion regarding a medical malpractice claim stemming from treatment received by a 15-year-old in 2011. Apparently, the young woman was swimming at a YMCA when she fell from a floating structure. She was rushed to the hospital and was treated by an attending doctor, who conducted some testing but did not order an MRI scan. Unfortunately, the next morning the young woman was suffering from severe nausea, and CT and MRI scans were finally performed. It was discovered that the young woman had suffered a stroke within the previous six hours.

swimming-pool-1493115The young woman brought a medical malpractice lawsuit against the treating doctor, claiming that he was negligent when he did not diagnose her with carotid artery dissection and that his negligence caused her to suffer serious, long-term neurological damage. The doctor moved for a directed verdict, and the court granted the motion, finding that the young woman did not prove her claim because she did not have an expert testify about the causation element required in negligence claims. The young woman appealed the case and asserted that the state law was met by the testimony presented. The Supreme Court found that there was no reversible error and affirmed the lower court’s decision.

Considerations When Bringing a Medical Malpractice Claim in New Mexico

Medical malpractice claims are some of the most complicated personal injury claims to bring, based solely on the complexity of medicine and the amount of knowledge required to properly pinpoint whether negligence actually occurred.

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