Here an interesting medical malpractice case out of Tennessee worth discussing that relates to substituting plaintiffs in a medical malpractice case.  In this case, Holley v.  Blackett, the Tennessee Court of Appeals allowed common sense to triumph, reversing a trial court’s entry of summary judgment in a wrongful death breast cancer misdiagnosis medical malpractice lawsuit,  allowing the minor daughter of a man who died while pursuing claims for his wife’s death to be named as the plaintiff.

Here are the facts: A husband brings a medical malpractice action on behalf of his wife, alleging her cancer was misdiagnosed and caused her death. This is a failure diagnose a stroke case.   The doctor filed a motion for summary judgment.  While the motion was pending, the husband dies.  This is where it gets a little weird.  Plaintiff’s malpractice attorney has the husband’s daughter substituted as the plaintiff.  The minor girl was born as the result of an extramarital affair that husband had during his marriage.

Crazy, right?  I can’t help but think about it from the dead wife’s perspective.  Would she still support the claim?  I’m assuming she is in a place now where you don’t get caught up in the now trivial, but at the time grievous, sins committed on earth.  But still. The trial court dismissed the case, finding that the substitution was was flawed because the malpractice lawyers never bothered to, ah, get permission from the girl’s guardian.

Here’s an interesting case that the Nebraska Supreme Court decided yesterday.  Plaintiff volunteers to donate a kidney to his dad.  Doctor removes plaintiff’s kidney and gives it to the father.    Sadly, father has complications with the kidney, requiring further surgery.   According to plaintiff’s complaint, the doctor mistakenly stitched the renal artery during the father’s exploratory surgery, which lead to the loss of the donated kidney.  Really just a tragedy – son tries to help father which is how the world should work.  Malpractice or not, it is just a shame.

But here’s the wierd part.  Isn’t this Dad’s malpractice claim?  Instead plaintiff – actually plaintiffs, inexplicably his wife was also a plaintiff, filed suit instead of the father.  Defendants, understandably, filed a motoin for summary judgment.  Plaintiffs’ response was telling, asking for a continuance to pursue further discovery on whether doctor-patient relationship existed between plaintiff and the doctors.  The court granted defendants’ motion for summary judgment.

So the Nebraska Supreme Court had to decide whether doctor owes a duty of care to a kidney donor during the post-transplant treatment and care of the donee.  Is this really a question?  I don’t think so and the Nebraska high court didn’t think so either.  I’m not even sure why I’m blogging about this except the facts are interesting.  I just wish we had the bad story.  Why didn’t dad sue in his own right?

This case is barely worth reporting on, but I thought I would pass it along.

In Smith v. Palin, a Maryland federal court was asked whether the Maryland Health Care Alternative Dispute Resolution Office abused its discretion in extending the time for filing the expert certificate required by Maryland law several times.  Specifically,  the defendant’s argued that the plaintiff’s excuse that they had requested, but not yet received all studies from treating physicians in Pennsylvania – including photographs of condition at issue – did not constitute good cause.

Should it take that long to get the records in a case?  No, it really shouldn’t.  Should the HCADRO hold plaintiffs’ feet to the fire and kick cases out because plaintiff’s lawyer has not done what they are supposed to do?  I think not.  Moreover, it is clearly not an abuse of discretion for the HCADRO director to determine that the plaintiffs do have good cause.  Not for nothing, the plaintiff was a 16-year-old girl when the defendant allegedly recommended that she undergo a bilateral breast augmentation as a treatment for a tubular breast deformity.  I don’t know about you, but I would like to see the court extend the benefit of the doubt.  Which is exactly what Judge James K. Bredar does.

Medical malpractice attorneys that defend doctors love medical malpractice caps.  They just think they are the greatest invention since the iPhone.  Or something like that.  I always thought it was misplaced because what defense lawyer want more than anything else is more cases and I assumed that malpractice caps meant less money in legal fees for them.

For reasons I can’t explain, the opposite may well be true.  In a study in the Journal of Health Politics, Policy and Law titled “Medical Malpractice Reform and Insurer Claims Defense: Unintended Effects?”, the authors looked at the impact of malpractice tort reforms on the cost of defending medical negligence cases.  What they found really surprised me: defense expenses were actually higher in those states where noneconomic damage caps, punitive damage limits, and attorney fee limits had been implemented.

The law of intended consequences is really something.  I honestly cannot think of a reason why this would be true.  And it is just one study.  But it does throw another monkey wrench into one of the rationales for medical malpractice cap.

Here are a few medical malpractice links/blog posts/stories I found of interest:

  • When doctors and hospitals don’t pay attention to recall notices and warnings, disaster can ensue.
  • An Alabama jury awarded $15 million in the case of a woman who died after a hospital administered an overdose of the anesthetic propofol.

An appellate court in Florida affirmed a defense verdict in a medical malpractice lawsuit. Plaintiff alleged that the doctor was negligent in failing to diagnose and treat the decedent’s cervical cord compression, a condition which eventually caused the man to suffer from quadriplegia.

Plaintiff made four arguments on appeal. The one I found interesting was the idea that the doctor’s lawyer made an “impermissible burden-shifting argument” on the issue of the doctor’s negligence when he argued that the plaintiff failed to present testimony from any neurosurgeon that he would have done anything different in treating the patient. Florida law is clear that a plaintiff is not required to prove that the subsequent treating physician would have acted differently in order to prevail at trial.

Certainly, under Maryland and Florida law, lawyers may not in opening or closing statements make comments that mislead the jury as to the appropriate burden of proof. But the court disagrees (as do I) that this is what the doctor’s lawyer was doing in his closing statement.

This is a guest post from Jonathan Rosenfeld, a medical malpractice attorney in Chicago, IL. Jonathan is the founder of Rosenfeld Injury Lawyers. I appreciate his contribution to this blog. The topic Jonathan attacks today is an important one: how to help cerebral palsy patients get the best possible outcomes.

There is no doubt that many cerebral palsy (CP) patients face many obstacles. But there is some relatively low hanging fruit to improve patients outcomes: good nutrition. Because of their condition, patients can be malnourished even when though they are fed regularly with what may seem like a healthy diet for the average person.

Causes of Malnutrition in CP Patients

A new study published in the Journal of the American Geriatrics Society finds that one in five newly admitted nursing home patients has a fall within one month. I realize statistics like this are dry and mind numbing, but consider this: 1 in 5 in the first month. Incredible.

This study probably understates the case, too. The researchers in this study looked at Medicare/Medicaid data. How many falls go unreported?

The researchers analyzed the potential factors that contribute to falls. They found something that makes too much sense: fewer falls occurred in nursing facilities with higher ratios of certified nursing assistants to residents. These are the people providing the real care for nursing home patients and their absence causes risk of injury.

The family of a severely brain-damaged two-year-old boy was awarded $55 million dollars yesterday, at the conclusion of a malpractice case, filed last February.

The suit alleged that Johns Hopkins waited too long to perform an emergency cesarean section after a complication arose during a home birth. The procedure was performed more than two hours after the mother was rushed to Hopkins.

Tragically, the two-year-old boy currently suffers from severe and permanent developmental delays, severe brain damage, multiple physical and mental disabilities and cerebral palsy.