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SPECIALTY LAW - xxx, 2005 Health Care

Cases summarized in the xxx, 2005 issue of
Specialty Law Digest: Health Care.

GENERAL INDEX


age discrimination -- hospital presented evidence articulating legitimate, nondiscriminatory reason for not hiring 69-year-old member of Pathology Department. Mitchell v. Vanderbilt Univ. (C.A. 6, Tenn. 2004), No. 03-5503

ambulance providers -- default judgment entered against ambulance service provider was not due to be set aside as void for insufficiency of service. Lifestar Response of Alabama, Inc. v. Lemuel (Ala. 2004), No. 1022072

annuities -- based upon annuity's terms, this type of plan was more likely viewed as way to shelter assets for purpose of Medicaid eligibility than as valid retirement tool. Gillmore v. Illinois Dep't of Human Svcs. (Ill.App. 2004), 822 N.E.2d 882

casuation -- trial court erred in granting defendant physician's motion for directed verdict where plaintiff's expert testified that if chest film from January 15, 1999, not been read as normal, that plaintiff's decedent would have survived his cancer. Wilson v. Horton (Ohio App. 2004), 2004 -Ohio- 6841

causation -- doctrine not applicable to wrongful death medical malpractice action alleging that delay in aspirating plaintiff's decedent decreased his chance of survival. Contois v. Town of West Warwick (R.I. 2004), 865 A.2d 1019

-- trial court did not err in dismissing case for failure to provide expert report in compliance with section 13.01 of Article 4590i of Texas Revised Civil Statutes, Medical Liability and Insurance Improvement Act. Ballan v. Gibson (Tex.App. 2004), 151 S.W.3d 281

certificates of merit -- expert did not disavow her certificate opinion in her deposition -- certificate of merit met Medical Malpractice Act's requirements. Nelson v. Debbas (Md.App. 2004), 862 A.2d 1083

class actions -- issue, whether insurer's alleged "systematic practice" of rejecting emergency claims based on final diagnosis violated MCL 550.1402, was not common question of fact and law meeting requirements of MCR 3.501(A)(1)(b). Tinman v. Blue Cross & Blue Shield of Michigan (Mich.App. 2004), 692 N.W.2d 58

-- trial court abused its discretion in certifying statewide class of individuals asserting injuries allegedly arising from use of painkiller OxyContin. Howland v. Purdue Pharma L.P. (Ohio 2004), 821 N.E.2d 141

damages -- trial court properly limited brain-damaged infant's recovery of quality of life damages to $250,000 because constitution did not prohibit damages cap, despite its consequences to infant. Judd v. Drezga (Utah 2004), 103 P.3d 135

default judgments -- default judgment entered against ambulance service provider was not due to be set aside as void for insufficiency of service. Lifestar Response of Alabama, Inc. v. Lemuel (Ala. 2004), No. 1022072

dental malpractice -- motion to restore where plaintiffs failed to show reasonable excuse for not having answered calendar call. Swerdlick v. Mass (N.Y.App.Div. 2004), No. 570010/04

discipline -- Board properly revoked physician's license. Cohen v. Maryland State Bd. of Physician Quality Assur. (Md.App. 2004), No. 1218

-- no merit to physician's appeal of order and judgment that denied and dismissed his petition seeking to annul order for comprehensive medical review of his patient and office records. Michaelis v. Graziano (N.Y.App.Div. 2004), No. 2791

-- one-year medical license suspension upheld where physician inappropriately aided patient on Ishihara Test and crossed out nurse's recording showing patient failed test. Huff v. North Dakota State Bd. of Med. Examiners-Investigative Panel B (N.D. 2004), 690 N.W.2d 221

discovery -- trial court erred in granting motion to compel production of video tape made by plaintiff's attorney of compulsory medical examination deciding that videotape was not work product. McGarrah v. Bayfront Med. Ctr, Inc. (Fla.App. 2004), 889 So.2d 923

discrimination -- hospital presented evidence articulating legitimate, nondiscriminatory reason for not hiring 69-year-old member of Pathology Department. Mitchell v. Vanderbilt Univ. (C.A. 6, Tenn. 2004), No. 03-5503

dismissal -- malpractice plaintiffs properly denied voluntary discontinuance where action had been pending for five years and plaintiffs were unable to secure expert. Gray v. Magee (Pa.Super. 2004), 864 A.2d 560

-- plaintiff failed to provide evidence to rebut defendant physician's affidavit asserting he conformed to standard of care. ristian v. Youngstown Orthopedic Ass'n, Inc. (Ohio App. 2004), 2004 -Ohio- 7064

estates -- personal representative could not bring statutory cause of action on behalf of deceased resident of nursing home for alleged infringement of resident's statutory rights provided by section 400.022, Florida Statutes, where infringement has not caused resident's death. Knowles v. Beverly Enterprises-Florida, Inc. (Fla. 2004), No. SC00-1910

experts -- because defendant surgeon's direct testimony did not address any standard of care issue relating to his treatment of plaintiff's decedent, gastric by-pass patient, circuit court did not abuse its discretion in refusing to permit cross-examination on that subject. Smith v. Irving (Va. 2004), 604 S.E.2d 62

-- expert did not disavow her certificate opinion in her deposition -- certificate of merit met Medical Malpractice Act's requirements. Nelson v. Debbas (Md.App. 2004), 862 A.2d 1083

-- expert stated that to reasonable degree of medical certainty, defendant complied with accepted standards of care for family practice physician in his treatment of plaintiff's decedent. Kassmakis v. Dasani (Ohio App. 2004), 2004 -Ohio- 6463

-- plaintiff's expert was expert in neuroradiology, different specialty from that of defendant physician, namely, orthopedics, and trial court was well within its discretion in ruling that there was insufficient evidence to conclude that he knew "prevailing professional standard of care." Friedman v. Meriden Orthopaedic Group, P.C. (Conn. 2004), 861 A.2d 500

-- there was sufficient evidence to support jury's decision that physician was not negligent in his care of maternity patient. In re Estate of Hagedorn (Ia. 2004), No. 146 / 03-1794

-- trial court did not err in dismissing case for failure to provide expert report in compliance with section 13.01 of Article 4590i of Texas Revised Civil Statutes, Medical Liability and Insurance Improvement Act. Ballan v. Gibson (Tex.App. 2004), 151 S.W.3d 281

-- trial court erred in permitting Medical Malpractice Review Panel members to testify as defendant physicians' retained experts. Chandler v. Graffeo (Va. 2004), 604 S.E.2d 1

-- when adverse party impeached expert during cross-examination, expert may be rehabilitated during redirect examination using that same treatise. Hinkle v. Cleveland Clinic Foundation (Ohio 2004), 823 N.E.2d 945

family practitioners -- expert stated that to reasonable degree of medical certainty, defendant complied with accepted standards of care for family practice physician in his treatment of plaintiff's decedent. Kassmakis v. Dasani (Ohio App. 2004), 2004 -Ohio- 6463

fees -- hospital did not sustain its prima facie burden, as its submissions in support of its motion for summary judgment unequivocally demonstrated that it received payments on behalf of both of insureds to whom it rendered medical treatment. South Nassau Communities Hosp. v. Allstate Ins. Co. (N.Y.App.Div. 2004), No. 2004-00579

-- insurer complied with No Fault regulations by quickly responding to physical therapy provider's claim in form of verification request. Psych. & Massage Therapy Assoc. PLLC v. Progressive Cas, Ins. Co. (N.Y.Cty.Ct. 2004), 789 N.Y.S.2d 661

health care -- circuit court did not have authority to adjudicate matters involving patient's involuntary commitment because that court's jurisdiction over involuntary commitment ended 180 days after commitment order was entered. Inova Health System v. Grandis (Va. 2004), 603 S.E.2d 876

Health Care Surrogate Act -- Act did not impose duty on health care provider, such as hospital in this case, to inquire into availability of surrogate decisionmaker until after attending physician has made written determination under Act that patient lacked decisional capacity. Collins v. Lake Forest Hosp. (Ill. 2004), 821 N.E.2d 316

hospitals -- Health Care Surrogate Act did not impose duty on health care provider, such as hospital in this case, to inquire into availability of surrogate decisionmaker until after attending physician has made written determination under Act that patient lacked decisional capacity. Collins v. Lake Forest Hosp. (Ill. 2004), 821 N.E.2d 316

-- home health care unit nurse supervisor's Alaska Wage and Hour Act claim for overtime wages was dismissed on ground that she was exempt under AS 23.10.060(d)(12) because her position included provision of medical services. Hutka v. Sisters of Providence In Washington (Alas. 2004), No. S-10706

-- hospital did not sustain its prima facie burden, as its submissions in support of its motion for summary judgment unequivocally demonstrated that it received payments on behalf of both of insureds to whom it rendered medical treatment. South Nassau Communities Hosp. v. Allstate Ins. Co. (N.Y.App.Div. 2004), No. 2004-00579

-- hospital presented evidence articulating legitimate, nondiscriminatory reason for not hiring 69-year-old member of Pathology Department. Mitchell v. Vanderbilt Univ. (C.A. 6, Tenn. 2004), No. 03-5503

-- negligent credentialing claim was health care liability claim as defined in Medical Liability and Insurance Improvement Act. Garland Community Hosp. v. Rose (Tex. 2004), No. 02-0902

-- no merit to medical malpractice plaintiff's contention that Florida's physician financial responsibility law, Florida Statutes section 458.320, created "strict liability" right of action against hospital for up to $250,000 of unsatisfied judgment. Plantation Gen. Hosp. Limited Partnership v. Horowitz (Fla.App. 2004), No. 4D03-3873

-- plaintiff's claim that hospital failed to repair wheelchair and failed to insure that it was in proper working order before returning it to service was not claim "based on health care or professional services rendered, or which should have been rendered, by a health care provider." Williamson v. Hospital Svc. Dist. No. 1 of Jefferson (La. 2004), No. 2004-C-0451

-- record supported Workers Compensation Board's determination that report submitted by claimant, registered nurse, was insufficient to put his employer, hospital, on notice. In re Claim of Miller (N.Y.App.Div. 2004), 785 N.Y.S.2d 796

-- there was substantial evidence to support hospital's suspension of pediatrician's neonatal resuscitation privileges, and pediatrician's right to due process was not violated. Warnick v. Natchez Community Hosp., Inc. (Miss. 2004), No. 2003-CA-01513-SCT

immunity -- physician was not entitled to protection of doctrine of sovereign immunity from liability for his alleged negligent acts in treating plaintiff's decedent. McCloskey v. Kane (Va. 2004), 604 S.E.2d 59

informed consent -- physician's decision to take no affirmative action may have amounted to violation of professional standard of care, but he was not obliged to obtain his patient's consent to his non- action. Arrabal v. Crew-Taylor (Md.App. 2004), 862 A.2d 431

instructions -- error to instruct jury of per se liability on part of physician for failure to remove foreign object from patient's body. Houserman v. Garrett (Ala. 2004), No. 1030587

insurance -- hospital did not sustain its prima facie burden, as its submissions in support of its motion for summary judgment unequivocally demonstrated that it received payments on behalf of both of insureds to whom it rendered medical treatment. South Nassau Communities Hosp. v. Allstate Ins. Co. (N.Y.App.Div. 2004), No. 2004-00579

-- insurer complied with No Fault regulations by quickly responding to physical therapy provider's claim in form of verification request. Psych. & Massage Therapy Assoc. PLLC v. Progressive Cas, Ins. Co. (N.Y.Cty.Ct. 2004), 789 N.Y.S.2d 661

-- insurer did not have right to require medical provider to submit to Examination Under Oath when that provider had accepted from State Farm's insured assignment of benefits. Diagnostics v. State Farm Mut. Automobile Ins. Co. (Fla.App. 2004), No. 3D03-2533

-- issue, whether insurer's alleged "systematic practice" of rejecting emergency claims based on final diagnosis violated MCL 550.1402, was not common question of fact and law meeting requirements of MCR 3.501(A)(1)(b). Tinman v. Blue Cross & Blue Shield of Michigan (Mich.App. 2004), 692 N.W.2d 58

-- remand ordered for allocation of liability between medical malpractice insurers. MedMarc Cas. Ins. Co. v. Forest Healthcare, Inc. (Ark. 2004), No. 03-1318

judgments -- default judgment entered against ambulance service provider was not due to be set aside as void for insufficiency of service. Lifestar Response of Alabama, Inc. v. Lemuel (Ala. 2004), No. 1022072

juror misconduct -- testimony and affidavits of jurors relating to statements of jury coordinator constituted evidence that extraneous evidence was presented to medical malpractice jury. McBride v. Farley (Mo.App. 2004), 154 S.W.3d 404

licensure -- Board properly revoked physician's license. Cohen v. Maryland State Bd. of Physician Quality Assur. (Md.App. 2004), No. 1218

-- no merit to physician's appeal of order and judgment that denied and dismissed his petition seeking to annul order for comprehensive medical review of his patient and office records. Michaelis v. Graziano (N.Y.App.Div. 2004), No. 2791

-- one-year medical license suspension upheld where physician inappropriately aided patient on Ishihara Test and crossed out nurse's recording showing patient failed test. Huff v. North Dakota State Bd. of Med. Examiners-Investigative Panel B (N.D. 2004), 690 N.W.2d 221

limitations -- medical malpractice plaintiff failed to raise issue of fact as to whether his return to hospital in April 1996 for treatment of injury to his wrist sustained in new fall constituted continuous treatment for same wrist injury he was treated for in October 1995. McPherson v. Abraham (N.Y.App.Div. 2004), 787 N.Y.S.2d 69

-- medical malpractice plaintiff offered no excuse for his delay other than his ignorance of time limitation. Lipschitz v. McCann (N.Y.App.Div. 2004), No. 2003-04781

-- Privileges and Immunities Clause prohibited reading of Medical Malpractice Act such that plaintiff parents would be precluded from filing wrongful death claim in place of negligence claim they could have filed on behalf of their son had he lived. Ellenwine v. Fairley (Ind.App. 2004), No. 71A03-0403-CV-124

-- reasonable diligence would have led medical malpractice plaintiff to seek second opinion or additional treatment many years ago when abnormal condition in his left leg persisted, even after physical therapy. Russell v. Williford (Miss.App. 2004), No. 2003-CA-01573-COA

loss chance of survival -- doctrine not applicable to wrongful death medical malpractice action alleging that delay in aspirating plaintiff's decedent decreased his chance of survival. Contois v. Town of West Warwick (R.I. 2004), 865 A.2d 1019

malpractice actions -- there was no merit to plaintiff claims that defendant physician improperly introduced evidence or argued that plaintiff's decedent had failed to seek proper medical attention. Juchniewicz v. Bridgeport Hosp. (Conn.App. 2004), 860 A.2d 1275

malpractice panels -- trial court erred in permitting Medical Malpractice Review Panel members to testify as defendant physicians' retained experts. Chandler v. Graffeo (Va. 2004), 604 S.E.2d 1

Medicaid -- based upon annuity's terms, this type of plan was more likely viewed as way to shelter assets for purpose of Medicaid eligibility than as valid retirement tool. Gillmore v. Illinois Dep't of Human Svcs. (Ill.App. 2004), 822 N.E.2d 882

-- for purposes of Medicaid eligibility, stock was asset available to applicant. Brewer v. Schalansky (Kans. 2004), 102 P.3d 1145

-- no merit to Medicaid recipient's statutory and constitutional challenge to application of OCGA Section 49-4-149, which provided mechanism for State to recoup money spent on Medicaid benefits. Richards v. Georgia Dep't of Community Health (Ga. 2004), 604 S.E.2d 815

medical malpractice -- showing of medical malpractice or negligence was insufficient to establish constitutional deprivation under Eighth Amendment. Toguchi v. Chung (C.A. 9, Haw. 2004), No. 03-15378

medical schools -- absent any evidence or authority for proposition that plaintiff had property or liberty interest in admission to state medical school, trial court did not err in finding that no such interest existed. Baker v. LSU Health Sciences Ctr. Institute of Prof. Ed. (La.App. 2004), 889 So.2d 1178

mental health -- Maine Supreme Court was without jurisdiction to consider petitioner's appeal of judgment authorizing his involuntary hospitalization for up to four months. In re Walter (Me. 2004), 863 A.2d 276

-- petitioner posed substantial threat of physical harm to himself and others if his release from care and control of facility was permitted at this time. Luis A. v. Pilgrim Psychiatric Ctr. (N.Y.App.Div. 2004), No. 2004-04404

-- State failed to prove by clear and convincing evidence that prisoner's delusion posed real and present threat of substantial harm to his well-being or to safety of others as required by Corrections Mental Health Act for involuntary commitment. E. F. v. State (Fla.App. 2004), 889 So.2d 135

notice of claim -- there did not exist sort of exceptional circumstances upon which Health and Hospitals Corporation defendants might be estopped from raising medical malpractice plaintiffs' failure to file timely notice of claim as ground for dismissal. Sun v. New York City Health & Hosps. Corp. (N.Y.App.Div. 2004), 785 N.Y.S.2d 696

notice of claims -- petitioners presented reasonable excuse for failing to serve timely notice of claim against hospital in which it was alleged that infant petitioner sustained damage to his brain during delivery which resulted in, inter alia, cerebral palsy. Ramirez v. County of Nassau (N.Y.App.Div. 2004), 787 N.Y.S.2d 71

nurses -- home health care unit nurse supervisor's Alaska Wage and Hour Act claim for overtime wages was dismissed on ground that she was exempt under AS 23.10.060(d)(12) because her position included provision of medical services. Hutka v. Sisters of Providence In Washington (Alas. 2004), No. S-10706

-- record supported Workers Compensation Board's determination that report submitted by claimant, registered nurse, was insufficient to put his employer, hospital, on notice. In re Claim of Miller (N.Y.App.Div. 2004), 785 N.Y.S.2d 796

nursing assistants -- given minimal training requirements and fact that nursing assistants provide primarily personal care, nursing assistant position was not professional position requiring professional negligence instruction. Myers v. Heritage Enterprises, Inc. (Ill.App. 2004), 820 N.E.2d 604

nursing homes -- because nursing home resident's negligence action had been dismissed with prejudice, resident could not have brought another negligence lawsuit stemming from same acts in event that he had survived. Brown v. Pine Bluff Nursing Home (Ark. 2004), No. 04-52

-- personal representative could not bring statutory cause of action on behalf of deceased resident of nursing home for alleged infringement of resident's statutory rights provided by section 400.022, Florida Statutes, where infringement has not caused resident's death. Knowles v. Beverly Enterprises-Florida, Inc. (Fla. 2004), No. SC00-1910

pharmacies -- plaintiff had presented expert evidence that Tegretol prescription reduced efficacy of plaintiff's oral contraceptives. Dubois v. Haykal (Tenn.App. 2004), No. W2003-01549-COA-R3-CV

podiatrists -- podiatrist did not establish absence of issue of fact for jury to determine whether he committed malpractice in his treatment of patient. Sidlow v. Lewis (Ga.App. 2004), 608 S.E.2d 703

prisons -- showing of medical malpractice or negligence was insufficient to establish constitutional deprivation under Eighth Amendment. Toguchi v. Chung (C.A. 9, Haw. 2004), No. 03-15378

sovereign immunity -- physician was not entitled to protection of doctrine of sovereign immunity from liability for his alleged negligent acts in treating plaintiff's decedent. McCloskey v. Kane (Va. 2004), 604 S.E.2d 59

staff privileges -- there was substantial evidence to support hospital's suspension of pediatrician's neonatal resuscitation privileges, and pediatrician's right to due process was not violated. Warnick v. Natchez Community Hosp., Inc. (Miss. 2004), No. 2003-CA-01513-SCT

standard of care -- because defendant surgeon's direct testimony did not address any standard of care issue relating to his treatment of plaintiff's decedent, gastric by-pass patient, circuit court did not abuse its discretion in refusing to permit cross-examination on that subject. Smith v. Irving (Va. 2004), 604 S.E.2d 62

state hospitals -- physician was not entitled to protection of doctrine of sovereign immunity from liability for his alleged negligent acts in treating plaintiff's decedent. McCloskey v. Kane (Va. 2004), 604 S.E.2d 59

surgeons -- because defendant surgeon's direct testimony did not address any standard of care issue relating to his treatment of plaintiff's decedent, gastric by-pass patient, circuit court did not abuse its discretion in refusing to permit cross-examination on that subject. Smith v. Irving (Va. 2004), 604 S.E.2d 62

-- plaintiff's expert was expert in neuroradiology, different specialty from that of defendant physician, namely, orthopedics, and trial court was well within its discretion in ruling that there was insufficient evidence to conclude that he knew "prevailing professional standard of care." Friedman v. Meriden Orthopaedic Group, P.C. (Conn. 2004), 861 A.2d 500

videotapes -- trial court erred in granting motion to compel production of video tape made by plaintiff's attorney of compulsory medical examination deciding that videotape was not work product. McGarrah v. Bayfront Med. Ctr, Inc. (Fla.App. 2004), 889 So.2d 923

workers compensation -- record supported Workers Compensation Board's determination that report submitted by claimant, registered nurse, was insufficient to put his employer, hospital, on notice. In re Claim of Miller (N.Y.App.Div. 2004), 785 N.Y.S.2d 796

writ of prohibition -- denial writ of prohibition to prevent court from proceeding with wrongful death suit filed after wrongful death of unborn fetus and injuries to mother. Cockrum v. Fox (Ark. 2004), No. 04-42

wrongful death -- because nursing home resident's negligence action had been dismissed with prejudice, resident could not have brought another negligence lawsuit stemming from same acts in event that he had survived. Brown v. Pine Bluff Nursing Home (Ark. 2004), No. 04-52



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