Justia Civil Procedure Opinion Summaries

In 2008, Olga Zarate-Martinez filed a medical malpractice complaint against Dr. Michael D. Echemendia, Atlanta Women’s Health Group, P.C., Atlanta Women’s Health Group, II, LLC, and North Crescent Surgery Center, LLC (collectively “Echemendia”), for damages for injuries she sustained during an open laparoscopic tubal ligation that was allegedly negligently performed and which resulted in a perforated bowel. Zarate-Martinez attached to her complaint an affidavit from Dr. Errol G. Jacobi. She later identified Dr. Charles J. Ward as an expert for summary judgment purposes, but she never submitted an affidavit from Dr. Ward in support of her complaint. Echemendia deposed Dr. Ward and Dr. Jacobi, moved to strike the testimony from both doctors on the grounds that they did not qualify as experts, and also moved for summary judgment. Without any reference to some constitutional issues raised, on February 21, 2013, the trial court issued an order striking both experts’ testimony, but granted Zarate-Martinez 45 days in which to file an affidavit from a competent expert witness. Zarate-Martinez timely submitted another affidavit, this time from Dr. Nancy Hendrix, and Echemendia again moved to strike. Zarate-Martinez then filed a supplemental affidavit from Hendrix outside of the 45-day time frame, and, in her reply to the motion to strike, reasserted her constitutional challenges to OCGA 24-7-702 (c). Zarate-Martinez also asserted a new constitutional claim, specifically, that the provisions of OCGA 24-7-702 (c) (2) (A) and (B) were unconstitutionally vague. The trial court struck Hendrix's affidavits, and, without any affidavits from qualified medical experts to support her claim, the trial court dismissed Zarate-Martinez's complaint. The Court of Appeals affirmed and did not reach the constitutional issues since the trial court never addressed them. The Supreme Court vacated the Court of Appeals decision and that of the trial court with respect to the application of OCGA 24-7-702 (c) and remanded for the trial court to reconsider the admissibility of Hendrix's testimony. View "Zarate-Martinez v. Echemendia" on Justia Law

The issue this medical malpractice action presented for the Supreme Court's review centered on orders excluding testimony from plaintiffs' two expert witnesses and a summary judgment granted to defendants based upon the excluded testimony. Mrs. Nelson went to the Emergency Department of St. Mary's Regional Medical Center seeking medical assistance on the evening of July 21, 2006. The emergency room physician, Dr. Vaughan, ordered diagnostic tests, diagnosed an incarcerated hernia with possible bowel obstruction, and attempted to reduce the hernia. Dr. Vaughan telephoned Dr. Shepherd, Mrs. Nelson's internist and primary care provider. Dr. Shepherd instructed Dr. Vaughan to telephone Dr. Shreck, a surgeon. Dr. Shreck came to the hospital, reduced Mrs. Nelson's hernia, and she was admitted to the hospital. The medical record indicated Dr. Shreck reduced Mrs. Nelson's incarcerated hernia by manipulation. Mrs. Nelson became septic, went into septic shock during the morning of July 22nd, and she had a cardiac arrest while being prepared for surgery to address a perforated or dead bowel. She was resuscitated. After the surgery, Mrs. Nelson was given medicines to raise and control her blood pressure. Dr. Shepherd then switched Mrs. Nelson's medication to vasopressin. At approximately 11:00 p.m., Mrs. Nelson's blood pressure started to fall, her pulse became unstable and she died. A medical malpractice action was brought against Mrs. Nelson's medical providers for her last illness. Dr. Shepherd and Enid Medical Associates moved to exclude the proposed testimony of plaintiffs' two expert witnesses. They argued each witness had not provided legally proper testimony on the issue of the cause of Mrs. Nelson's demise because the testimony did not satisfy the requirements of "Daubert v. Merrell Dow Pharmaceuticals, Inc.," (509 U.S. 579 (1993)). The two defendants also sought summary judgment because the causation element of the malpractice claim action was missing from plaintiffs' claim. After review, the Supreme Court held that the opinions of the two witnesses on the issue of causation satisfied the requirements of 12 O.S. 2702, and reversed the summary judgment granted by the District Court. View "Nelson v. Enid Medical Associates, Inc." on Justia Law

Plaintiff was born prematurely by emergency cesarean section at New York City Health and Hospitals Corp. (HHC) in June 2005. He was transferred to the neonatal intensive care unit and discharged in stable condition in August 2005. In January 2007, more than 90 days after the claim arose, without first obtaining leave of court as required by General Municipal Law 50-e (5), plaintiff served a notice of claim against HHC alleging negligence and malpractice arising out of failure to properly treat and manage his mother's prenatal care and failure to obtain informed consent with regard to plaintiff's care. The notice claimed that plaintiff sustained brain damage, cognitive defects, developmental, speech and psychomotor delays, fetal and respiratory distress and seizure disorder. Plaintiff filed suit in August 2008, but waited until December 2010, to seek permission to serve late notice of claim. The Appellate Division affirmed dismissal, finding unreasonable an excuse that counsel waited because he needed to receive medical records from HHC. The court held that plaintiff failed to establish "that the medical records put HHC on notice that the alleged malpractice would subsequently give rise to brain damage as a result of birth trauma and hypoxia," The New York Court of Appeals affirmed. Contrary to plaintiff's argument, the medical records must do more than "suggest" that an injury occurred as a result of malpractice in order for the medical provider to have actual knowledge of essential facts. View "Wally G. v NY City Health & Hosps. Corp." on Justia Law

Tomeka Handy filed a complaint alleging medical negligence against Madison County Nursing Home and Madison County. Handy filed her complaint for wrongful death on October 4, 2012, individually and in her capacity as the administratrix of the estate of her mother, Willie Handy, who was a resident of the nursing home from August 25, 2008, through the date of her death on April 12, 2011. The suit was filed on behalf of all the decedent’s wrongful death beneficiaries. After the county was dismissed, the nursing home filed a motion for summary judgment arguing that it was entitled to a judgment as a matter of law because Handy had not designated an expert witness. Before the summary judgment hearing, Handy filed designations of two expert witnesses. The Circuit Court of Madison County granted the motion for summary judgment because Handy had failed to produce sworn expert testimony in opposition to the motion for summary judgment. Handy filed a motion for reconsideration along with expert witness affidavits, but the circuit court denied the motion for reconsideration. Handy appealed, arguing that the circuit court dismissed her case as a sanction for a discovery violation, and the harsh sanction of dismissal amounted to an abuse of discretion. Because the record established that Handy failed to meet her burden of production on summary judgment, and the circuit court did not abuse its discretion by denying Handy’s motion for reconsideration, the Supreme Court affirmed the circuit court. View "Handy v. Madison County Nursing Home" on Justia Law

In September 2008, plaintiff Dustin Rock fractured his right ankle while changing the brake pads on a truck. Defendant K. Thomas Crocker, D.O., a board-certified orthopedic surgeon, conducted surgery and provided postsurgical care. In October 2008, defendant allegedly told plaintiff that he could start bearing weight on his leg, though plaintiff did not start doing so at the time. In November 2008, another doctor, Dr. David Viviano, performed a second surgery on plaintiff’s ankle, purportedly because the surgery performed by defendant had failed to unite all the pieces of the fracture. At the time of the surgery performed by defendant, Viviano was a board-certified orthopedic surgeon. In June 2010, plaintiff filed this lawsuit, alleging that defendant had committed 10 specific negligent acts during the first surgery and over the course of postsurgical care. The issues this case presented for the Michigan Supreme Court's review involved: (1) the admissibility of allegations of breaches of the standard of care that did not cause the plaintiff’s injury; and (2) the time at which a standard-of-care expert witness must meet the board-certification requirement in MCL 600.2169(1)(a). First, the Supreme Court vacated that portion of the Court of Appeals’ judgment ruling on the admissibility of the allegations in this case and remanded for the circuit court to determine whether the disputed evidence was admissible under MRE 404(b). Second, the Supreme Court affirmed the Court of Appeals’ conclusion that a proposed expert’s board-certification qualification was based on the expert’s board-certification status at the time of the alleged malpractice rather than at the time of the testimony. View "Rock v. Crocker" on Justia Law

In 2001, the decedent presented to the Wetzel County Hospital Emergency Room in New Martinsville and came under the care of Dr. Murthy, a surgeon; she slipped into shock and died the next day. Her estate filed a medical negligence action, alleging that Murthy failed to perform exploratory surgery to identify, diagnose and correct the decedent’s “intraabdominal condition.” A jury awarded $4,000,000 in compensatory damages. After the trial, the circuit court allowed amendment of the complaint to add Murthy’s insurance carrier, Woodbrook, alleging that Woodbrook made all relevant decisions for Murthy’s defense and acted vexatiously and in bad faith. Following a remand, Murthy paid a reduced judgment, plus interest, in the total amount of $1,162,741.60 and filed motions in limine to preclude certain matters from consideration on the issue of attorney fees and costs, including an unrelated case that resulted in a $5,764,214.75 verdict against Dr. Murthy in March 2007. The court dismissed Woodbrook as a party-defendant and awarded the estate attorney fees and costs. The precise calculation was to be later determined. The Supreme Court of Appeals of West Virginia reversed, concluding that the lower court’s reliance on certain conduct by Murthy did not justify the award. View "Murthy v. Karpacs-Brown" on Justia Law

Plaintiff Leonard Lopez appealed after a bench trial on his medical negligence claims. Lopez underwent lower back surgery at the Veterans Administration Medical Center of Denver, Colorado (VA Hospital), in order to alleviate longstanding sciatic pain. Immediately following surgery, however, Lopez began experiencing excruciating pain in his left foot. Lopez has since been diagnosed with neuropathic pain syndrome. Lopez filed suit against the United States pursuant to the Federal Tort Claims Act alleging, in pertinent part, that: (1) Dr. Samuel Waller was negligent in performing the surgery; and (2) that the hospital was negligent in credentialing and privileging Dr. Glenn Kindt, the supervising physician involved in the surgery. At the conclusion of the trial the district court found in favor of the government on both claims. After review, the Tenth Circuit affirmed the district court’s judgment in favor of the United States on Lopez’s claim of medical negligence involving Waller, but reversed the district court’s judgment on the negligent credentialing and privileging claim. The case was remanded with directions to dismiss that claim for lack of jurisdiction. View "Lopez v. United States" on Justia Law

Charlene Ivy was admitted to East Mississippi State Hospital (“EMSH”) in May 2012, and she died on July 17, 2012. Alleging medical negligence by EMSH staff, Ivy’s son Spencer sent a Notice of Claim letter via certified mail dated July 11, 2013, to EMSH Director Charles Carlisle. Carlisle signed for the letter on July 15, 2013, as evidenced by a return receipt. The definitive question in this appeal was whether Carlisle, as the Director of the East Mississippi State Hospital (“EMSH”), was the proper “chief executive officer” for notice purposes under the Mississippi Tort Claims Act (“MTCA”), as opposed to the Executive Director of the Department of Mental Health (“DMH”). The trial judge found that “proper pre-suit notice” required service “upon the executive director of [DMH], not a facility manager of one of the institutions under its jurisdiction and control.” The trial judge found further that the statute of limitations was not tolled because Ivy had “failed to comply with the mandatory provisions of Section 11-46-11(1)” and dismissed Ivy’s complaint with prejudice. The Supreme Court reversed, finding that EMSH’s Director was the CEO under the MTCA, and that Ivy provided the "proper pre-suit notice. View "Ivy v. East Mississippi State Hospital" on Justia Law

Plaintiffs, the parents of a newborn baby, alleged that on June 12, 2012, their son died as a result of the medical malpractice of the Hospital defendants and the Baker defendants (Richard Baker, M.D. and Mary Beerworth, M.D.). It was undisputed that this filing was within the period established by the applicable statute of limitations. The issue this case presented for the Supreme Court's review centered on the denial of motions to dismiss filed by the Hospital defendants and the Baker defendants. Both sets’ motions were predicated on plaintiffs’ failure to timely serve process. On appeal, the Baker defendants argued that the trial court’s grant of an enlargement of time to serve process expired prior to plaintiffs’ serving of the summons and complaint, while the Hospital defendants contended that although they signed a waiver of service, plaintiffs failed to file that waiver with the court before the expiration of the service period. Both sets of defendants also appealed the trial court’s conclusion that even if plaintiffs’ service was found to be untimely, it retained the authority to retroactively grant a motion for enlargement of time and extend the period for service after the running of the statute of limitations on the basis of excusable neglect. Finding no reversible error, the Supreme Court affirmed. View "Clark v. Baker" on Justia Law

Regina Corr sued Dr. Charles Robinson for medical malpractice. The jury awarded Corr $55,634.78 for past medical expenses and $420,000 for pain and suffering. Robinson filed motions for judgment notwithstanding the verdict and for remittitur, which the trial court denied. On appeal, Dr. Robinson argues that the trial court erred in excluding his proffered testimony, in admitting testimony from Regina’s expert that was outside her expert’s designation, and in denying his request for a remittitur. Finding no error, the Supreme Court affirmed the trial court's judgment. View "Robinson v. Corr" on Justia Law