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SPECIALTY LAW - September, 2005 Health Care

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

MEDICAL ACTS, OMISSIONS AND PROCEDURES


admissions -- regional diagnostic and treatment center engaged entirely in outpatient, ambulatory care was not "hospital" under EMTALA. Rodriguez v. American Internat'l Ins. Co. of Puerto Rico (C.A. 1, P.R. 2005), 402 F.3d 45

appendectomies -- mere happening instruction that stated that negligence was never presumed conflicted with res ipsa loquitur instruction. Carver v. El-Sabawi (Nev. 2005), 107 P.3d 1283

attendance -- evidence supported findings of no violations of Arkansas Long Term Care Resident's Rights Statute. Koch v. Northport Health Svcs. of Arkansas, LLC (Ark. 2005), No. 04-321

biopsy -- physician, without expertise in surgical techniques, was not qualified to testify regarding standard of care required for surgical removal of tissue identified for biopsy. Lopez v. Reddy (N.M.App. 2005), 2005 -NMCA- 054

breast augmentation surgery -- physician's statements that another physician should have known that mastopexy was not appropriate for patient's breasts was inadmissible hearsay. Peppmeier v. Murphy (Ia.App. 2005), No. 5-095 / 04-0461

breast surgery -- "two schools of thought" doctrine was inapplicable to claims that TRAM flap procedure was not appropriate form of reconstructive breast surgery given patient's body weight. Choma v. Iyer (Pa.Super. 2005), 871 A.2d 238

chiropractic care -- physician was qualified to render expert opinion to effect that chiropractor should have known that staff infection was not amenable to chiropractic treatment. Enslen v. Kennedy (Cal.App. 2005), 26 Cal.Rptr.3d 274

colonoscopies -- clinic and nurse owed no duty other than to warn patient not to drive himself home after he had sedated during performance of colonoscopy. Young v. Gastro-Intestinal Center, Inc. (Ark. 2005), No. 04-595

commitment -- finding of mental illness or retardation required before juvenile could be subject to involuntary commitment. M. H. v. State (Fla.App. 2005), No. 4D04-1217

-- individual's illegal detention claims were moot where he had been released from custody and State had dismissed its application for involuntary treatment. E.S v. State (Vt. 2005), 872 A.2d 356

-- involuntary commitment was proper where patient suffering from bipolar disorder who was incapable of making responsible decisions would likely inflict serious emotional injury on her daughter. In re S.S. (Ia.App. 2005), No. 5-151 / 04-1293

-- treatment at county jail counted toward 90-day treatment requirement for commitment as mentally disordered offender. People v. Martin (Cal.App. 2005), No. B175517

dental treatment -- claims for intentional tort, conspiracy, and product liability dismissed -- action was one for dental malpractice. Atamian v. Bahar (Del.Super. 2005), No. 01C-03-031

-- continuous treatment doctrine tolled limitations period with respect to dental malpractice claims despite 22-month gap between visits. Rudolph v. Jerry Lynn, D.D.S., P.C. (N.Y.App.Div. 2005), 792 N.Y.S.2d 410

diagnosis -- 12-hour delay in evaluating patient was not shown to be cause of his death from chronic liver disease. McCarthy v. St. Joseph's Med. Ctr. (N.Y.App.Div. 2005), 791 N.Y.S.2d 544

-- defendant physician's expert medical witness testified that initial diagnosis of cervical spine arthritis was consistent with reported symptoms and X-ray examinations. Lawrence v. Capital Care Med. Gp., LLC (N.Y.App.Div. 2005), 788 N.Y.S.2d 269

-- direct verdict in favor of dentist charged with failure to diagnose dental abscess was proper. Maxwell v. Mehta (N.Y.App.Div. 2005), 792 N.Y.S.2d 647

-- lost chance of recovery recognized in action alleging that delay in diagnosing metastasized gastric (stomach) cancer caused decedent's death. Gordon v. Kemper (Ky.App. 2005), No. 2002-CA-001983-MR

-- MCL 600.2912a(2) required plaintiff to show that decedent's chances of survival fell more than fifty percent between time of defendant physician's alleged malpractice and initial discovery of decedent's lung cancer. Klein v. Kik (Mich.App. 2005), No. 250679

-- statute which prohibited wrongful birth claims barred parents' claim for negligent infliction of emotional distress. Vanvooren v. Astin (Idaho 2005), 111 P.3d 125

eye surgery -- court erred in not allowing cross-examination of defendant's expert as to his personal approach to measurement of patient's corneas on day of LASIK surgery. Smethers v. Campion (Ariz.App. 2005), 108 P.3d 946

gall bladder removal surgery -- claims that anesthesiologist injured patient's vocal cords untimely -- statute not tolled by continuous treatment doctrine. Harris v. North Shore Univ. Hosp. at Syosset (N.Y.App.Div. 2005), No. 004-07664

gastric bypass surgery -- gastric bypass surgery was not covered by insurance policy which specifically excluded coverage for weight modification. Cain v. Fortis Ins. Co. (S.D. 2005), 694 N.W.2d 709

informed consent -- genuine issue of material fact existed as to whether plaintiff's consent to surgery was vitiated by defendant physician's alleged misrepresentation of fact. Holt v. Alexander (Tenn.App. 2005), No. W2003-02541-COA-R3-CV

-- physician and clinic did not commit malpractice by failing to obtain written consent prior to surgery -- verbal consent was sufficient. Siliezar v. East Jefferson Gen. Hosp. (La.App. 2005), No. 04-CA-939

involuntary commitment -- finding of mental illness or retardation required before juvenile could be subject to involuntary commitment. M. H. v. State (Fla.App. 2005), No. 4D04-1217

knee surgery -- expert report was inadequately linked complications following knee sugary to physicians' alleged negligence. Davis v. Markey (Tex.App. 2005), No. 03-04-00455-CV

laparoscopic cholecystectomy procedure -- jury verdict for physician reversed where he admitted that he made series of misidentifications during surgery which led to bile duct injury. Walker v. Corsetti (La.App. 2005), No. 04-CA-784

LASIK surgery -- court erred in not allowing cross-examination of defendant's expert as to his personal approach to measurement of patient's corneas on day of LASIK surgery. Smethers v. Campion (Ariz.App. 2005), 108 P.3d 946

medication -- clinic and nurse owed no duty other than to warn patient not to drive himself home after he had sedated during performance of colonoscopy. Young v. Gastro-Intestinal Center, Inc. (Ark. 2005), No. 04-595

organ transplantation -- record supported jury finding that health care providers' negligence during removal of liver did not cause failure of liver transplant. Smith v. Colorado Organ Recovery System, Inc. (Neb. 2005), 694 N.W.2d 610

reconstructive surgery -- "two schools of thought" doctrine was inapplicable to claims that TRAM flap procedure was not appropriate form of reconstructive breast surgery given patient's body weight. Choma v. Iyer (Pa.Super. 2005), 871 A.2d 238

sedation -- clinic and nurse owed no duty other than to warn patient not to drive himself home after he had sedated during performance of colonoscopy. Young v. Gastro-Intestinal Center, Inc. (Ark. 2005), No. 04-595

supervision -- claim that hospital's failure to provide proper supervision for patient suffering from seizures sounded in malpractice -- expert testimony required. Lomonaco v. United Health Svcs. Hosps., Inc. (N.Y.App.Div. 2005), 791 N.Y.S.2d 737

surgery -- claims that anesthesiologist injured patient's vocal cords untimely -- statute not tolled by continuous treatment doctrine. Harris v. North Shore Univ. Hosp. at Syosset (N.Y.App.Div. 2005), No. 004-07664

-- court erred in not allowing cross-examination of defendant's expert as to his personal approach to measurement of patient's corneas on day of LASIK surgery. Smethers v. Campion (Ariz.App. 2005), 108 P.3d 946

-- expert report was inadequately linked complications following knee sugary to physicians' alleged negligence. Davis v. Markey (Tex.App. 2005), No. 03-04-00455-CV

-- gastric bypass surgery was not covered by insurance policy which specifically excluded coverage for weight modification. Cain v. Fortis Ins. Co. (S.D. 2005), 694 N.W.2d 709

-- genuine issue of material fact existed as to whether plaintiff's consent to surgery was vitiated by defendant physician's alleged misrepresentation of fact. Holt v. Alexander (Tenn.App. 2005), No. W2003-02541-COA-R3-CV

-- jury verdict for physician reversed where he admitted that he made series of misidentifications during surgery which led to bile duct injury. Walker v. Corsetti (La.App. 2005), No. 04-CA-784

-- mere happening instruction that stated that negligence was never presumed conflicted with res ipsa loquitur instruction. Carver v. El-Sabawi (Nev. 2005), 107 P.3d 1283

-- notice was timely given to surgeon and his assistant with respect to severe, permanent brain damage patient suffered at city hospital. Visser v. Mahan (Colo.App. 2005), 111 P.3d 575

-- physician and clinic did not commit malpractice by failing to obtain written consent prior to surgery -- verbal consent was sufficient. Siliezar v. East Jefferson Gen. Hosp. (La.App. 2005), No. 04-CA-939

-- physician's statements that another physician should have known that mastopexy was not appropriate for patient's breasts was inadmissible hearsay. Peppmeier v. Murphy (Ia.App. 2005), No. 5-095 / 04-0461

-- "two schools of thought" doctrine was inapplicable to claims that TRAM flap procedure was not appropriate form of reconstructive breast surgery given patient's body weight. Choma v. Iyer (Pa.Super. 2005), 871 A.2d 238

testing -- statute which required testing of newborns for metabolic diseases was not unconstitutional. Douglas County v. Anaya (Neb. 2005), 694 N.W.2d 601

TRAM flap procedure -- "two schools of thought" doctrine was inapplicable to claims that TRAM flap procedure was not appropriate form of reconstructive breast surgery given patient's body weight. Choma v. Iyer (Pa.Super. 2005), 871 A.2d 238

vasectomies -- Maryland did not recognize independent cause of action in patient's wife against doctor who acted negligently while treating her husband but who had no relationship or direct interaction with wife. Dehn v. Edgecombe (Md. 2005), No. 117

warnings -- clinic and nurse owed no duty other than to warn patient not to drive himself home after he had sedated during performance of colonoscopy. Young v. Gastro-Intestinal Center, Inc. (Ark. 2005), No. 04-595



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