Articles Posted in Medical Malpractice

In a recent opinion, the New Mexico Supreme Court addressed the nuances of the New Mexico Medical Malpractice Act (MMA). The opinion stems from a plaintiff’s lawsuit against an OB/GYN who allegedly failed to diagnose a large malignant mass on the plaintiff’s left ovary.

HourglassThe Facts of the Case

In 2006, the plaintiff was experiencing pain near her pelvic region and sought treatment from the defendant hospital in New Mexico. The plaintiff consulted with a doctor who was affiliated with the hospital. The doctor reviewed the hospital’s report, and, without scheduling a biopsy, he diagnosed the plaintiff with endometriosis. Neither the doctor nor the plaintiff followed up with the other after this initial meeting.

The plaintiff continued to suffer with the pelvic pain for about two more years when she finally consulted with another doctor in Wyoming. At this time, the plaintiff became aware that the defendant doctor did not inform her of a mass on her ovary. Unfortunately, additional tests showed the presence of ovarian cancer, which required a hysterectomy.

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In New Mexico medical malpractice cases, the plaintiff must be able to establish certain elements before the case will be permitted to proceed toward trial. If a plaintiff does not present sufficient evidence of medical negligence, the case will likely be dismissed in a pre-trial defense motion for summary judgment.

Rubber StampOne of the most important issues that a plaintiff must establish in a New Mexico personal injury lawsuit is that the care provided by the defendant fell below the generally accepted standard of care for similarly situated providers. This requirement reflects the understanding that the law does not expect doctors to be perfect or that the care they provide will always have the desired effects. However, at the same time, the law does allow victims of inadequate care to recover compensation for their injuries.

In New Mexico, in order to establish that a defendant medical provider’s care fell below the generally accepted level, an expert witness will almost always be needed. Unlike other states, New Mexico does not require plaintiffs to obtain an expert affidavit prior to filing their case. However, the plaintiff will almost certainly need an expert to establish what the generally accepted level of care is, and to help show the jury that the defendant’s conduct fell below that level. This is because New Mexico jurors are regular citizens, most of whom do not have the advanced medical or scientific knowledge necessary to resolve many of the issues raised in New Mexico medical malpractice cases.

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Medical malpractice cases may be filed against any medical professional, including doctors, nurses, or hospital administrators. New Mexico medical malpractice claims must follow strict requirements or risk being dismissed without ever being heard. This includes filing the claim by the appropriate deadline, including all of the necessary facts in the initial complaint, and drafting the complaint such that it provides notice of the allegations to the defendant. A recent case illustrates how important properly pleading medical malpractice allegations can be, as well as the repercussions for failing to do so.

Breast SurgeryThe Facts of the Case

The plaintiff was a breast cancer survivor, who was discussing reconstructive surgery with the defendant doctor. However, due to the radiation that the plaintiff received to treat the breast cancer, there were certain risks associated with the procedure. Her left breast, specifically, received the radiation treatment.

Initially, the plaintiff wanted the doctor to operate on both of her breasts. However, after thinking about the risks involved, she decided to only proceed with the surgery on her right breast. She proceeded to have the defendant perform the surgery, but there was some miscommunication between the plaintiff and the defendant, and the defendant operated on both breasts. The defendant later claimed that he was not made aware that the plaintiff had changed her mind, and he presented his records indicating as much.

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Whenever a doctor performs a surgery or procedure, the doctor is supposed to explain all of the risks associated with the procedure to the patient. This entails explaining to the patient what exactly will be done during the procedure, what the expected outcome of the procedure is, and what the likelihood of encountering a complication is.

Operating RoomIf a doctor fails to properly inform a client about the risks of a procedure, and the patient is injured during the surgery, the patient may be able to file a New Mexico medical malpractice case seeking compensation for their injuries. This may be the case even if the doctor was not negligent in performing the surgery. A recent opinion issued by an Oklahoma appellate court held that in order to obtain truly informed consent, a doctor should also advise the patient of any non-doctor assistants who will be helping with the procedure.

The Facts of the Case

The plaintiff was a patient of the defendant doctor. At some point in the course of treating the plaintiff, the defendant doctor suggested the plaintiff undergo a specific surgery. The plaintiff agreed, and the defendant doctor had the plaintiff sign a general release waiver giving permission for the defendant and “whomever he/she (they) may designate as his/her assistants, to perform” the procedure. However, the space provided for the doctor to provide the names and credentials of any assistants who would be involved in the procedure was left blank.

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Earlier this month, an appellate court in Iowa issued a written opinion in a medical malpractice lawsuit alleging that the defendant physician was negligent in the treatment of the plaintiff during her pregnancy. The lawsuit, which was the first of its kind to be recognized in Iowa, sought damages for the wrongful birth of the plaintiffs’ child, who was born with severe congenital defects.

Baby's FootThe Facts of the Case

The plaintiffs were expecting a baby boy. The defendant was the plaintiffs’ radiologist, who reviewed the ultrasound of the couple’s child. The ultrasound indicated that there were potential issues with the unborn child, including the fact that the child’s head was unusually small. According to the report, the child’s head was in the third-to-sixth percentile for circumference.

The defendant physician did not report these specific findings to the parents but instead reported that the child’s head was “within two standard deviations of normal” and that the circumference of the child’s head was “slightly” below normal. No further testing was ordered or performed.

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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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