Home Page -- Products -- Order Now -- Download Issue -- Contact Us -- Search

SPECIALTY LAW - September, 2005 Health Care

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

GENERAL INDEX


affidavits of merit -- letter written by plaintiff's expert witness was insufficient to defeat defendant physician's motion for summary judgment. Potter v. Hopper (Miss.App. 2005), No. 2003-CA-02018-COA

-- limitations statute tolled by doctrine of equitable tolling where, through inadvertent clerical error, timely filed affidavit of merit related to another medical malpractice client. Ward v. Rooney-Gandy (Mich.App. 2005), 696 N.W.2d 64

Americans With Disabilities Act -- state failed to comply integration mandate and non-discriminatory administration provisions of ADA. Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep't of Pub. Welfare (C.A. 3, Pa. 2005), 402 F.3d 374

anesthesiologists -- 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

Arizona Long Term Care System -- guardian and conservator fees were not "medically necessary" cost for calculation of recipient's share of cost. Day v. Arizona Health Care Cost Containment System Admin. (Ariz.App. 2005), 109 P.3d 102

attorneys -- law firm lacked standing to bring anti-trust actions with respect to medical record copying services. Owen & Galloway, L.L.C. v. Smart Corp. (Miss. 2005), No. 2004-CA-00277-SCT

cardiovascular surgeons -- claims concerning restrictions placed on surgeon's privileges rendered moot after privileges expired. Lo v. Provena Covenant Med. Ctr. (Ill.App. 2005), 826 N.E.2d 592

causation -- 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

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

-- 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

-- medical malpractice plaintiff waived her objection to introduction of "expectation evidence" by defendant physician where she had opted to introduce "expectation evidence" in her case-in-chief. Drinkard-Nuckols v. Andrews (Va. 2005), 606 S.E.2d 813

-- 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

certificates of need -- hospital timely notified Department that some electronic correspondence had been erroneously omitted from record. York Hosp. v. Dep't of Human Svcs. (Me. 2005), 869 A.2d 729

chiropractors -- 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

class actions -- certification of action to compel insurers to pay health care providers directly reversed. Associated Medical Networks, Ltd. v. Lewis (Ind. 2005), 824 N.E.2d 679

-- Georgia parties had no standing to challenge proposed settlement in Alabama class action over group medical insurance rating schemes where they had been specifically excluded from suit. American Med. Security, Inc. v. Parker (Ga. 2005), 612 S.E.2d 261

clinics -- 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

conservator fees -- fees were not "medically necessary" cost for calculation of recipient's share of cost. Day v. Arizona Health Care Cost Containment System Admin. (Ariz.App. 2005), 109 P.3d 102

contracts -- evidence supported otolarynologist's claims for wrongful interference with business relations and conspiracy. Setliff v. Stewart (S.D. 2005), 694 N.W.2d 859

-- hospital properly revoked pathologist privileges upon expiration of his exclusive contract to provide pathology services. Whitaker v. Houston County Hospital Authority (Ga.App. 2005), No. A05A0473

crimes -- forfeiture of dermatologist's resident proper after he plead guilty to writing medically unnecessary prescriptions in his apartment. United States v. Heldeman (C.A. 1, R.I. 2005), 402 F.3d 220

damages -- 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

-- record supported claim for punitive damages against nursing home owner with respect to care of deceased resident. Estate of Despain v. Avante Group, Inc. (Fla.App. 2005), No. 5D03-3383

deceptive trade practices -- Connecticut State Medical Society's action against health plan for alleged violation of Connecticut Unfair Trade Practices Act was dismissed. Connecticut State Med. Soc'y v. Oxford Health Plans, Inc. (Conn. 2005), 863 A.2d 645

dentists -- 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

-- 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

discipline -- Virginia Board of Medicine's letter advising physician that consent order would be reported to Healthcare Integrity and Protection Data Bank did not constitute "case decision" under Code Section 2.2-4001. Giannoukos v. Virginia Bd. of Med. (Va.App. 2005), 607 S.E.2d 136

discrimination -- state failed to comply integration mandate and non-discriminatory administration provisions of Americans With Disabilities Act. Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep't of Pub. Welfare (C.A. 3, Pa. 2005), 402 F.3d 374

domestic partners -- after statutory amendment, domestic partner had standing to bring wrongful death action even though they were not registered. Armijo v. Miles (Cal.App. 2005), 26 Cal.Rptr.3d 623

duty of care -- 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

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

EMTALA -- 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

estates -- Department's claim against estate for reimbursement of Medicaid payments untimely when filed more than two years after recipient's death. In re Estate of Kaminsky (Idaho 2005), 111 P.3d 121

experts -- 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

-- 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

-- 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

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

-- expert was not statutorily qualified where he had not had active clinical practice in defendant doctors' specialty or related field within one year of alleged negligence. Hinkley v. Koehler (Va. 2005), 606 S.E.2d 803

-- 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

-- 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

fees -- no-fault insurance carriers could withhold payment for medical services provided by fraudulently incorporated enterprises to which patients had assigned their claims. State Farm Mutual Automobile Ins. Co. v. Mallela (N.Y. 2005), No. 29

-- statute requiring physician to submit his bills to no-fault insurer with 30 days of treatment was constitutional. Warren v. State Farm Mutual Automobile Ins. Co. (Fla. 2005), 899 So.2d 1090

guardian fees -- fees were not "medically necessary" cost for calculation of recipient's share of cost. Day v. Arizona Health Care Cost Containment System Admin. (Ariz.App. 2005), 109 P.3d 102

health plans -- Connecticut State Medical Society's action against health plan for alleged violation of Connecticut Unfair Trade Practices Act was dismissed. Connecticut State Med. Soc'y v. Oxford Health Plans, Inc. (Conn. 2005), 863 A.2d 645

hearsay -- 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

hospitals -- 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

-- 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

-- claims concerning restrictions placed on surgeon's privileges rendered moot after privileges expired. Lo v. Provena Covenant Med. Ctr. (Ill.App. 2005), 826 N.E.2d 592

-- hospital properly revoked pathologist privileges upon expiration of his exclusive contract to provide pathology services. Whitaker v. Houston County Hospital Authority (Ga.App. 2005), No. A05A0473

-- hospital timely notified Department that some electronic correspondence had been erroneously omitted from record. York Hosp. v. Dep't of Human Svcs. (Me. 2005), 869 A.2d 729

-- hospital's petition to terminate benefits payable to employee who suffered cognitive dysfunction injury from exposure to radioactive chemicals was properly denied. Temple Univ. Hosp. v. Workers' Comp. Appeal Bd. (Pa.Cmwlth. 2005), No. 1395 C.D. 2004

-- 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

instructions -- 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

-- "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

insurance -- Board was not authorized to restrict insured health care provider's qualification under Medical Malpractice Act if untimely surcharge was collected. Griffin v. Louisiana Patient's Comp. Fund Oversight Bd. (La.App. 2005), No. 2004 CA 0613

-- class certification of action to compel insurers to pay health care providers directly reversed. Associated Medical Networks, Ltd. v. Lewis (Ind. 2005), 824 N.E.2d 679

-- 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

-- Georgia parties had no standing to challenge proposed settlement in Alabama class action over group medical insurance rating schemes where they had been specifically excluded from suit. American Med. Security, Inc. v. Parker (Ga. 2005), 612 S.E.2d 261

-- no-fault insurance carriers could withhold payment for medical services provided by fraudulently incorporated enterprises to which patients had assigned their claims. State Farm Mutual Automobile Ins. Co. v. Mallela (N.Y. 2005), No. 29

-- statute requiring physician to submit his bills to no-fault insurer with 30 days of treatment was constitutional. Warren v. State Farm Mutual Automobile Ins. Co. (Fla. 2005), 899 So.2d 1090

jurors -- pursuant to CRE 606(b), trial court erred in using jurors' post-verdict statements to impeach medical malpractice verdict in favor of defendant physician. Hall v. Levine (Colo. 2005), 104 P.3d 222

law firms -- law firm lacked standing to bring anti-trust actions with respect to medical record copying services. Owen & Galloway, L.L.C. v. Smart Corp. (Miss. 2005), No. 2004-CA-00277-SCT

legal malpractice -- physician suit against his attorney untimely where brought more than three years after adverse verdict, even though attorney remained counsel of record during pendency of appeal. Epstein v. Brown (S.C. 2005), 610 S.E.2d 816

licensure -- sufficient evidence support revocation of outpatient psychiatric clinic's license. Integrated Behavioral Health Svcs. v. Dep't of Pub. Welfare (Pa.Cmwlth. 02005), No. 1722 C.D. 2004

-- Virginia Board of Medicine's letter advising physician that consent order would be reported to Healthcare Integrity and Protection Data Bank did not constitute "case decision" under Code Section 2.2-4001. Giannoukos v. Virginia Bd. of Med. (Va.App. 2005), 607 S.E.2d 136

limitations -- 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

-- 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

-- physician suit against his attorney untimely where brought more than three years after adverse verdict, even though attorney remained counsel of record during pendency of appeal. Epstein v. Brown (S.C. 2005), 610 S.E.2d 816

-- statute of repose barred patient's 2002 action for exposure to excessive and harmful amounts of radiation during 1993 heart procedures. Best v. Lakeland Reg. Med. Ctr., Inc. (Fla.App. 2005), 899 So.2d 424

-- statute tolled by doctrine of equitable tolling where, through inadvertent clerical error, timely filed affidavit of merit related to another medical malpractice client. Ward v. Rooney-Gandy (Mich.App. 2005), 696 N.W.2d 64

loss chance of survival -- 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

malpractice actions -- amendment to medical malpractice pleadings to add wrongful death claim was properly allowed. Smith v. Haggerty (N.Y.App.Div. 2005), 792 N.Y.S.2d 217

-- hearsay testimony was not admissible as to what occurred during breast cancer patient's visit as physician's office. Davis v. Reid (Ga.App. 2005), 612 S.E.2d 112

malpractice insurance -- Board was not authorized to restrict insured health care provider's qualification under Medical Malpractice Act if untimely surcharge was collected. Griffin v. Louisiana Patient's Comp. Fund Oversight Bd. (La.App. 2005), No. 2004 CA 0613

malpractice trials -- medical malpractice plaintiff was entitled to stack additional preference on to her already granted preference, giving her case priority on already accelerated medical malpractice calendar. Peck v. Brookdale Hosp. Med. Ctr. (N.Y.Tr.T. 2005), 787 N.Y.S.2d 859

Medicaid -- Department's claim against estate untimely when filed more than two years after recipient's death. In re Estate of Kaminsky (Idaho 2005), 111 P.3d 121

medical associations -- Connecticut State Medical Society's action against health plan for alleged violation of Connecticut Unfair Trade Practices Act was dismissed. Connecticut State Med. Soc'y v. Oxford Health Plans, Inc. (Conn. 2005), 863 A.2d 645

medical records -- law firm lacked standing to bring anti-trust actions with respect to medical record copying services. Owen & Galloway, L.L.C. v. Smart Corp. (Miss. 2005), No. 2004-CA-00277-SCT

mental health -- 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

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

monopolies -- law firm lacked standing to bring anti-trust actions with respect to medical record copying services. Owen & Galloway, L.L.C. v. Smart Corp. (Miss. 2005), No. 2004-CA-00277-SCT

notice of claims -- 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

nurses -- no claim for retaliatory discharge stated where nurse had conceded that he was habitually late to work for job where 24-hour nursing care was critical. Carreon v. Illinois Dep't of Human Svcs. (C.A. 7, Ill. 2005), No. 03-4117

nursing homes -- 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

-- record supported claim for punitive damages against nursing home owner with respect to care of deceased resident. Estate of Despain v. Avante Group, Inc. (Fla.App. 2005), No. 5D03-3383

-- state failed to comply integration mandate and non-discriminatory administration provisions of Americans With Disabilities Act. Pennsylvania Protection and Advocacy, Inc. v. Pennsylvania Dep't of Pub. Welfare (C.A. 3, Pa. 2005), 402 F.3d 374

otolarynologists -- evidence supported otolarynologist's claims for wrongful interference with business relations and conspiracy. Setliff v. Stewart (S.D. 2005), 694 N.W.2d 859

pleadings -- amendment to medical malpractice pleadings to add wrongful death claim was properly allowed. Smith v. Haggerty (N.Y.App.Div. 2005), 792 N.Y.S.2d 217

-- limitations statute tolled by doctrine of equitable tolling where, through inadvertent clerical error, timely filed affidavit of merit related to another medical malpractice client. Ward v. Rooney-Gandy (Mich.App. 2005), 696 N.W.2d 64

psychiatric clinics -- sufficient evidence support revocation of outpatient psychiatric clinic's license. Integrated Behavioral Health Svcs. v. Dep't of Pub. Welfare (Pa.Cmwlth. 02005), No. 1722 C.D. 2004

punitive damages -- record supported claim for punitive damages against nursing home owner with respect to care of deceased resident. Estate of Despain v. Avante Group, Inc. (Fla.App. 2005), No. 5D03-3383

records -- law firm lacked standing to bring anti-trust actions with respect to medical record copying services. Owen & Galloway, L.L.C. v. Smart Corp. (Miss. 2005), No. 2004-CA-00277-SCT

res ipsa -- 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

settlements -- Georgia parties had no standing to challenge proposed settlement in Alabama class action over group medical insurance rating schemes where they had been specifically excluded from suit. American Med. Security, Inc. v. Parker (Ga. 2005), 612 S.E.2d 261

staff privileges -- claims concerning restrictions placed on surgeon's privileges rendered moot after privileges expired. Lo v. Provena Covenant Med. Ctr. (Ill.App. 2005), 826 N.E.2d 592

-- hospital properly revoked pathologist privileges upon expiration of his exclusive contract to provide pathology services. Whitaker v. Houston County Hospital Authority (Ga.App. 2005), No. A05A0473

standing -- after statutory amendment, domestic partner had standing to bring wrongful death action even though they were not registered. Armijo v. Miles (Cal.App. 2005), 26 Cal.Rptr.3d 623

-- Connecticut State Medical Society's action against health plan for alleged violation of Connecticut Unfair Trade Practices Act was dismissed. Connecticut State Med. Soc'y v. Oxford Health Plans, Inc. (Conn. 2005), 863 A.2d 645

-- Georgia parties had no standing to challenge proposed settlement in Alabama class action over group medical insurance rating schemes where they had been specifically excluded from suit. American Med. Security, Inc. v. Parker (Ga. 2005), 612 S.E.2d 261

-- law firm lacked standing to bring anti-trust actions with respect to medical record copying services. Owen & Galloway, L.L.C. v. Smart Corp. (Miss. 2005), No. 2004-CA-00277-SCT

surgeons -- claims concerning restrictions placed on surgeon's privileges rendered moot after privileges expired. Lo v. Provena Covenant Med. Ctr. (Ill.App. 2005), 826 N.E.2d 592

-- 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

taxation -- local sales and use taxes applicable to repairs and maintenance on nuclear cameras installed on hospital's premises. Willis-Knighton Med. Ctr. v. Caddo-Shreveport Sales and Use Tax Comm'n (La. 2005), No. 04-C-0473

verdicts -- pursuant to CRE 606(b), trial court erred in using jurors' post-verdict statements to impeach medical malpractice verdict in favor of defendant physician. Hall v. Levine (Colo. 2005), 104 P.3d 222

workers compensation -- hospital's petition to terminate benefits payable to employee who suffered cognitive dysfunction injury from exposure to radioactive chemicals was properly denied. Temple Univ. Hosp. v. Workers' Comp. Appeal Bd. (Pa.Cmwlth. 2005), No. 1395 C.D. 2004

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

wrongful death -- after statutory amendment, domestic partner had standing to bring wrongful death action even though they were not registered. Armijo v. Miles (Cal.App. 2005), 26 Cal.Rptr.3d 623

-- amendment to medical malpractice pleadings to add wrongful death claim was properly allowed. Smith v. Haggerty (N.Y.App.Div. 2005), 792 N.Y.S.2d 217



Home Page -- Products -- Order Now -- Download Issue -- Contact Us -- Search