Medical Malpractice

August 22, 2017

Medical Malpractice Plaintiff’s Award Reversed Based on Failure to Include Medical Battery Language in Complaint

Last month, a Virginia appellate court issued a written opinion in a personal injury case illustrating how diligent and precise Virginia medical malpractice plaintiffs must be when filing their complaint. The case required the court to determine if the jury’s verdict in favor of the plaintiff should be upheld when the trial judge instructed the jury on medical battery despite the fact that the plaintiff’s complaint did not mention medical battery. Ultimately, the court concluded that the plaintiff should have added language to include a medical battery claim, and her failure to do so prevented the trial judge from instructing the jury on the issue.

The Facts of the Case

The plaintiff was a breast cancer survivor who required follow-up surgery. The plaintiff claimed that she had originally discussed having surgery on both breasts but ultimately decided to only proceed with surgery on her right breast.

The defendant’s version of the events leading up to the surgery were different from the plaintiff’s version. The defendant claimed that the plaintiff never indicated to him that she wished to have him operate on only her right breast. Needless to say, the defendant performed surgery on both breasts, and the plaintiff suffered serious complications related to her left breast.

July 19, 2017

Court Determines Physicians Must Inform Patients of all Non-Doctor Assistants During Surgery to Obtain Informed Consent

by Sidney Schupak, Esq.

An issue that often comes up in Virginia medical malpractice cases is whether the treating doctor adequately warned the patient of the risks associated with a given course of treatment. Earlier this month, an Oklahoma appellate court issued an interesting opinion in a medical malpractice case involving the information that a physician is required to provide to a patient in order to obtain informed consent prior to a medical procedure. Ultimately, the court concluded that a physician must inform a patient of all non-doctor assistants who will be performing significant portions of the procedure in order to obtain the patient’s informed consent.

Informed Consent

Before a patient undergoes any non-emergency medical treatment, the treating physician must obtain that patient’s consent. Over the years, courts have consistently held that a patient must have a certain level of knowledge as to what they are consenting to undergo in order for a patient’s consent to be valid. This is called informed consent. When a physician fails to obtain a patient’s informed consent to perform a medical procedure, and something goes wrong during the procedure, resulting in an injury to the patient, the doctor may be liable under a medical battery theory of liability.

The Facts of the Case

The plaintiff was a patient of the defendant gynecologist. In 2010, the defendant recommended that the plaintiff undergo a total laparoscopic hysterectomy, and the plaintiff agreed. Prior to the surgery, the plaintiff was presented with a consent form that stated that the plaintiff authorizes the defendant and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.” The informed consent form contained an area designated to list the names of any assistants who would be participating in the procedure; however, that area was left blank.

June 19, 2017

Plaintiff Prevented from Presenting Witness Testimony Based on Failure to Disclose Witness During Pre-Trial Discovery

by Sidney Schupak, Esq.

Earlier this month, a state supreme court issued an interesting opinion in a medical malpractice case highlighting the importance of complying with the rules of pre-trial discovery. The case presented the court with the opportunity to determine whether the testimony of a witness should be allowed when the plaintiff plans on calling the witness but fails to identify the witness during pre-trial discovery. Ultimately, the court concluded that the trial court was proper in excluding the testimony and affirmed the defense verdict that was delivered by the jury.

The Facts of the Case

The plaintiff was suffering from neck and back pain and began seeking treatment from the defendant doctor in 2004. In 2009, the doctor diagnosed the plaintiff with degenerative disc disease and recommended that the plaintiff undergo surgery.

The surgery was performed by the defendant, and afterwards the plaintiff suffered from several complications, requiring a subsequent surgery. After the subsequent surgery, the plaintiff was paralyzed from the waist down. He then filed a medical malpractice lawsuit against the defendant doctor for the doctor’s failure to properly treat him during the second surgery.

March 27, 2017

The Importance of Medical Experts in Virginia Medical Malpractice Cases

by Sidney Schupak, Esq.

Medical malpractice cases are some of the most complex and confusing types of personal injury cases. In fact, most medical malpractice cases require an understanding of the medical field beyond what most lawyers and judges possess. For this reason, Virginia lawmakers have implemented a requirement that all medical malpractice plaintiffs present a qualified expert to help explain to the judge and jury how the defendant’s actions fell below the required standard of care and also how those actions resulted in the plaintiff’s injuries.

The selection of medical experts in a medical malpractice case is an extremely important decision that can have an enormous effect on the outcome of the case. For example, if a witness is not properly qualified, or does not offer an opinion that is based upon acceptable and recognized practices of the profession, the expert’s opinion may be open to attack by the defense.

A recent opinion illustrates the problems one medical malpractice plaintiff encountered when a court determined that the experts he presented failed to establish that the defendant’s actions were responsible for his injuries.

February 16, 2017

How a Violation of a Jurisdiction Rule Can Result in a Court’s Inability to Hear a Case or Appeal

by Sidney Schupak, Esq.

To help combat the increasing demand on the court system, court have implemented a series of strict rules that plaintiffs must follow in order to have their case heard in a timely manner. There are various types of rules, and the penalty for the violation of a rule depends on which type of rule was violated.

One type of court rule is a jurisdictional rule. Jurisdictional rules are perhaps the most important because when they are not followed, the court loses the power to issue a binding decision in a case. For example, statutes of limitations are considered to be jurisdictional rules. Thus, if a party fails to file a lawsuit within a certain amount of time, the court loses the power to hear the case. Since the violation of a jurisdictional rule deprives the court of the power to hear the case, once a jurisdictional rule is violated, a court cannot make an exception to the application of that rule, even if the court determines it is in the interest of justice.

Other mandatory court rules can, when violated, result in the dismissal of a case. However, since the violation of a non-jurisdiction mandatory rule does not deprive the court of the power to hear the case, courts can readily apply exceptions when they deem it appropriate.

September 6, 2016

Battery Claims Based on Lack of Informed Consent May Be Subject to Procedural Requirements of Medical Malpractice Claims

by Sidney Schupak, Esq.

After undergoing a procedure to have an intrauterine device (IUD) implanted, a woman filed a lawsuit against her doctor for battery. The woman argued that her doctor failed to obtain her informed consent prior to the procedure, since she later discovered that the IUD she had received was not approved by the Federal Drug Administration (FDA). The IUD actually was on the approved FDA list for IUDs, but it did not meet the FDA’s requirements because it had been shipped to Canada rather than to the United States.

However, when the woman filed the complaint, she did not file a medical expert affidavit along with it, stating that the expert supported the allegations made in the lawsuit. In that state, plaintiffs who filed medical malpractice claims had to file a supporting medical expert affidavit with the complaint. The woman claimed that she did not need the medical expert affidavit because she was filing a claim for battery rather than for medical malpractice.

Yet, in a recent decision, the supreme court of that state found that she did need a medical expert affidavit even though she filed a “battery” claim. The court explained that battery claims against a medical provider based on a lack of informed consent should be subject to the same requirements as medical malpractice claims. Just as general medical malpractice claims do, the lawsuit required considering what the professional standard was in obtaining informed consent. For that reason, a medical expert affidavit was required.

August 25, 2016

Recent Case Illustrates the Importance of Naming All Potentially Liable Parties from the Outset of a Medical Malpractice Case

by Sidney Schupak, Esq.

Earlier this month, the Supreme Court of Idaho issued a written opinion in a medical malpractice case, affirming the dismissal of the case because the plaintiff failed to name the proper parties within the relevant statute of limitations. In the case, English v. Taylor, the court decided that the filing date of the amended complaint, rather than the date on which the plaintiffs sought leave to amend, was the date that triggered the lawsuit.

The Facts of the Case

Mrs. English underwent surgery at the defendant’s facility in 2011. As a result of a complication with the surgery, English suffered a stroke and sustained related injuries. After her recovery, English and her husband filed a lawsuit against the manufacturer of one of the medical devices that was used in the surgery. At that time, neither the doctor who performed the surgery nor the medical facility where the surgery was performed were named as defendants.

One day before the two-year statute of limitations was over, the Englishes filed a request for a medical provider to review the surgery to determine if there may have been any medical malpractice involved. This “tolled” or paused the statute of limitations and provided the Englishes with an additional 30 days. During that 30-day period, the Englishes filed a motion with the court, asking for permission to amend their complaint to add the doctor as well as the medical facility as defendants, and to amend the cause of action to include a medical malpractice theory. The court granted permission.

January 6, 2016

Court Determines Hospital Slip-and-Fall Is Not a “Medical Malpractice” Case

by Sidney Schupak, Esq.

Earlier last month, a State Supreme Court issued an opinion reversing the lower court’s dismissal of a plaintiff’s claim, based on the fact that the plaintiff failed to comply with the procedural requirements of a medical malpractice claim under the state’s laws. In the case, Galvan v. Memorial Hermann Hospital System, the Supreme Court of Texas ultimately determined that since there was not a sufficient nexus between the alleged injury and the hospital’s provision of health care, the case was not subject to the heightened requirements of a medical malpractice case.

The Facts of the Case

In Galvan v. Memorial Hermann Hospital System, the plaintiff was a woman who was visiting a relative at the defendant hospital. The plaintiff was walking from the hospital’s pharmacy to her relative’s room when she slipped on a puddle of water that was coming from under a restroom door. The woman filed a lawsuit against the hospital, seeking compensation for her injuries.

In response, the hospital asked the court to dismiss the case because the plaintiff failed to submit an expert report, as is required under state law for all medical malpractice cases. The lower court denied the hospital’s motion, but the intermediate court reversed that decision. The plaintiff then appealed to the state’s supreme court.