Medical Malpractice

Published on: October 5, 2016

State Court Adopts Continuing Course of Treatment Doctrine, Potentially Extending Statute of Limitations in Some Medical Malpractice Cases

Earlier this month, a Massachusetts court issued a written opinion in a medical malpractice case adopting the continuing course of treatment doctrine. The continuing course of treatment doctrine acts to toll the statute of limitations in medical malpractice cases while the defendant is still providing medical care for the plaintiff. Thus, if the doctrine is applied, only once the defendant stops providing medical care will the statute of limitations begin. In the case, Parr v. Rosenthal, the court ultimately adopted the doctrine but declined to apply it in the specific facts presented in the plaintiffs’ case.

The Facts

The plaintiffs’ son was born with an unexplained lump on the back of his leg. After several years of unsuccessful diagnosis attempts, the plaintiffs found a group of doctors who were able to identify the lump as a desmoid tumor. While the tumor was identified, none of the doctors treating the boy was familiar with how to treat a desmoid tumor. The treating physicians referred the parents to the defendant, who was another doctor in the group who had not yet met with their son. After discussing the procedure with the boy’s parents, it was agreed that the defendant would perform an emerging procedure called radio frequency ablation.

Unfortunately, the boy was badly burned by the defendant during the procedure, and the procedure could not be completed. The original group of doctors continued to care for the boy, but the defendant provided no follow-up care. Eventually, the boy’s leg needed to be amputated due to the worsening condition of the burn. Several years later, the plaintiffs filed this lawsuit against the defendant, naming only him and none of the doctors in his practice group.

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Published on: September 21, 2016

Woman Allowed to Present Expert from Mexico in U.S. Medical Malpractice Case

By Moll Law Group

In a recent case in front of a state appellate court, a woman filed a medical malpractice lawsuit after she was treated for a condition known as thoracic outlet syndrome. The illness caused her extreme pain around her shoulder and in her arm and also caused her numbness, swelling, and weakness. As a result, she was treated by a doctor who performed a surgery to try to ease the pain by removing one of her ribs. However, the woman suffered severe symptoms after the surgery, including pain whenever she moved her arm and difficulty swallowing food. The woman then sued the doctor for malpractice.

The defendant presented an expert who said that the doctor performed the surgery correctly and provided proper post-operative care. The expert also said that the woman’s symptoms after the surgery were a result of her original illness. To rebut this, the woman presented her own expert, who was a doctor in Mexico. The doctor had examined her about one year before she sought treatment from the defendant. Her expert stated that the defendant had destabilized the woman’s right sternoclavicular joint during the surgery or had disrupted the ligaments that hold it in place.

The defendant objected to the plaintiff’s expert witness, arguing that he was not familiar with the “standard of care” in the United States. The trial court agreed and dismissed the case. However, a court of appeals found that her expert witness, who was licensed to practice medicine in Mexico, was qualified to give an opinion in this case. Importantly, the defendant doctor did not suggest that the standard of care in Mexico was different from the standard of care in the United States. In addition, the Mexican doctor had performed over 500 orthopedic surgeries and around 10 to 12 thoracic outlet syndrome surgeries. He also personally examined the woman before and after her surgery. Thus, the court found that he was qualified to give his opinion, and the jurors were free to give it as much weight as they determined was appropriate.

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Published on: September 7, 2016

Plaintiff’s Claim Against Paramedic Driver Not Subject to Medical Malpractice Rules

By Moll Law Group

In a recent case out of California, a man was injured in an accident with another car, driven by a paramedic supervisor. The paramedic was driving his employer’s truck on the way to the location of an injured victim when the accident occurred. The injured driver subsequently filed a negligence lawsuit against the paramedic. The state’s laws required that lawsuits against health care providers for “professional negligence” be filed within one year of the injury date. In this case, the man’s case was filed past the one-year filing date. As a result, the court found that the claim was time-barred.

However, a case from that state’s supreme court found that the time period applied only to negligence actions that resulted from services provided by virtue of being health care professionals—or in rendering medical care to patients. Thus, in this case, while the paramedic was a medical professional, the accident did not result from negligent medical care. The paramedic was required to drive the car with reasonable care because he was driving a car, not because he was providing health care to a patient because he was a paramedic. Thus, the decision was reversed, and the case was able to proceed.

Medical Malpractice Statutes of Limitations in Illinois

Every individual who files a claim has to consider the relevant statute of limitations. The statute of limitations refers to the time during which a claim must be filed. The time varies for different claims and depending on where the claims are filed.

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Published on: August 27, 2016

Court Finds Battery Claim for Lack of Informed Consent Carries Same Requirements as Medical Malpractice Claim

By Moll Law Group

In a recent case, a woman filed suit against a hospital and her doctor for battery after undergoing a medical procedure. She alleged that she had not given her informed consent for having an intrauterine device (IUD) implanted. About a year after she had the IUD implanted, she found out that her IUD had not been approved by the Federal Drug Administration because of the location to which the device had been shipped.

She filed the complaint but failed to file a medical expert affidavit, as required by state laws. In this particular state, the law required that plaintiffs filing medical malpractice actions file an expert affidavit along with the complaint. However, the woman argued that her claim did not require her to file the expert affidavit because this was a battery claim rather than a medical malpractice claim. Ultimately, the state’s supreme court disagreed, holding that a battery claim against a medical provider based on a lack of informed consent also requires the filing of a medical expert affidavit.

The court held that even though the claim filed was a battery claim, it still had the same requirements of a general medical malpractice claim. Since cases involving the issue of informed consent generally consider the professional standard required in such cases, they are subject to the same requirements no matter which claim is alleged. There is a question of what the professional standard is in obtaining informed consent. As a result, a medical expert affidavit was required, stating that the expert supports the allegations in the claim.

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Published on: August 25, 2016

Medical Malpractice Claim Against Hospital Fails after Plaintiff Waits Too Long to Amend Complaint

By Moll Law Group

In a recent case, a woman had surgery done at a hospital and subsequently suffered a stroke. The woman filed a products liability claim against the manufacturer of one of the medical devices in the surgery. However, when the complaint was originally filed, it did not name the hospital or the doctor as defendants. It also did not state a claim for medical malpractice. Several months later, the woman requested to file an amended complaint to add the defendants and allege medical malpractice. She then filed the amended complaint almost four months after the original complaint.

The hospital and the doctor then moved for summary judgment, alleging that the filings were untimely. In the jurisdiction where the case arose, a medical malpractice action must be filed within two years of the cause of action accruing. The original complaint was filed just one day before the two-year statute of limitations had run. Thus, by the time the woman amended the complaint, the new claim against the defendants was not timely. The court granted the defendants’ motions because the claims were filed against them after the statute of limitations had expired. The state supreme court agreed, resulting in the dismissal of the claim.

Amending a Complaint and Its Effect on the Statute of Limitations

The statute of limitations is the time period during which a plaintiff can bring a certain kind of claim. The period of time varies depending on the type of claim and the jurisdiction, or the place in which it is filed. Often, the time begins to run from the date of the injury, the date that an injury was discovered, or the date that it should have been discovered.

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Published on: August 17, 2016

Testosterone Replacement Therapy Linked to Tumor Growth in Prostate Patients

By Moll Law Group

One increasingly popular therapy for treating prostate cancer is testosterone replacement therapy, or TRT. It has become quite common during the last 10 years. Until recently, testosterone hormone treatments were only given in situations in which a patient has a rare medical condition like hypogonadism.

Although the majority of men who take testosterone replacement therapy routinely do not have hypogonadism, they can access the drug as the result of a loophole in the FDA’s regulations governing TRT. This loophole authorizes physicians to prescribe certain drugs for uses that are not included on the label. So far, the FDA has only authorized TRT for men experiencing low levels of testosterone due to medical conditions limiting production of testosterone in the testicles.

Referred to as off-label uses, there has been a recent surge in the number of instances in which doctors are being fined and disciplined for permitting Low T clinics to give testosterone prescriptions to patients without ever actually meeting or examining the patient.

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Published on: May 27, 2016

Doctor Must Inform Patient that Worsened Condition May Occur After Back Surgery

By Moll Law Group

In a recent case, a plaintiff filed a medical malpractice claim, alleging that the defendant negligently failed to obtain informed consent. The plaintiff suffered a lower back injury and subsequently underwent a lumbar spine surgery. Prior to the surgery, the plaintiff and the doctor talked about the risks and consequences involved in the surgery. According to the plaintiff, the doctor told him that the surgery had a 99% chance of success, that he would not have any more pain, and that he would recover in three days. The doctor denied having made these statements. The plaintiff also signed a consent form before surgery. The form he signed included an acknowledgement that he had been informed of significant risks, and it listed several potential consequences. It also stated that no result or cure had been promised.

After the surgery, the plaintiff’s lower back pain increased, and he also experienced additional symptoms, including numbness and shaking in his leg, as well as mental health issues. He also found out after the surgery from another doctor that the success rate of the surgery he underwent was actually 50% or less. He then sued his doctor for failure to obtain informed consent because he did not understand the potential consequences.

Under the state’s law, the plaintiff had to show that the risks that he suffered, particularly a worsened condition and increased pain, were material risks of the procedure. The defendant argued that the plaintiff failed to provide an expert on the issue of materiality, but the court found that an expert was not required. The treating doctor in this case testified that he discusses the risks with every patient because patients can experience further pain after this surgery. Thus, the doctor’s own statements indicated that increased pain and a worsened condition were material risks. For that reason, the court allowed the case to continue.

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Published on: May 25, 2016

Medical Errors Thought to Be Third-Leading Cause of Death in United States

By Moll Law Group

Everyone has heard stories about a doctor operating on the wrong leg or giving someone the wrong dosage of a drug. These are just some examples of medical errors that occur every day in this country. Those types of mistakes can be the basis for a medical malpractice claim.

Medical Errors May Be Third-Leading Cause of Death in United States

Doctors have known for a long time that medical errors are prevalent. However, it is not a popular topic of discussion in the medical community, and no one knew how often they actually occurred. A recent study looked into the issue and found that medical errors might now be the third-leading cause of death in the United States.

The study estimated that if medical errors were accurately documented, they would account for 251,000 deaths per year. That comes out to 700 deaths per day, or about 9.5% of all deaths annually in the United States. This would put medical errors below only heart disease and cancer, and account for more deaths than those resulting from respiratory disease, accidents, and stroke.

The prevalence of medical errors had not been apparent for a long time because of the way deaths are recorded. The Centers for Disease Control uses a coding system that does not record common medical errors like communication breakdowns and diagnostic errors. The coding system counts only the “underlying cause of death,” which is the condition that led the person to seek medical treatment. However, the growing awareness in the medical community pushed researchers to find out more. Researchers noted that some errors result from careless medical providers, but others result from communication breakdowns, which can occur when a patient gets transferred from one facility to another.

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Published on: May 23, 2016

Joan Rivers’ Doctors Settle Lawsuit for Substantial Amount After Her Death

By Moll Law Group

On TV, every case seems to go to trial. However, in the real world, most cases settle. The parties come to an agreement, and the defendant pays an agreed-upon amount to the plaintiff. There are a number of reasons parties agree to settle a case, including a faster resolution, a guaranteed amount of money, and avoiding the high cost of a trial.

But just as an experienced attorney is essential during a trial, an experienced attorney is also essential during settlement negotiations. An experienced attorney will investigate a client’s case to see how strong the claim is and advise his client about how much the claim may be worth. There are a number of factors to consider, including the strengths and weaknesses of available evidence, the outcomes of similar cases, policy limits, statutory limits, and the defendant’s resources.

In calculating damages, verdicts and settlements can also consider the value of the plaintiff’s present and future lost earnings, profits, or salaries. In Illinois, the Illinois Supreme Court has stated that expert testimony is not required to establish loss of future earning ability, so a plaintiff may be able to provide testimony about future earning ability on their own. In cases involving celebrities, damages based on a person’s future earnings can run very high.

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Published on: May 18, 2016

Recent Study Highlights Risks of Emergency Surgeries

By Moll Law Group

All surgeries carry some risk, but some carry more than others. Certain procedures carry high risks for complications and even death. But even when an injury or death occurs during or after high-risk surgeries, medical malpractice may still occur. Medical malpractice laws exist in order to protect patients from negligent medical treatment, even in high-risk situations.

Medical Malpractice Claims

Medical malpractice claims permit patients to recover damages based on negligent medical care. In medical malpractice claims, a plaintiff has to prove that the defendant owed a duty of care to the plaintiff, that the defendant failed to exercise reasonable care, and that the plaintiff suffered injuries and damages as a result of the breach of the standard of care.

In order to win a medical malpractice claim, a patient has to show that a health care provider breached the standard of care. The standard of care is what other health care providers in the same specialty would use in the same or similar circumstances. Medical malpractice cases demand experienced attorneys and medical experts who can explain what the standard of care is and how it was breached. If a malpractice claim is successful, a plaintiff may be able to recover damages, not just for economic costs such as medical bills but also for noneconomic forms of harm, including lost income and mental anguish.

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