Category Archives: Medical Malpractice

What’s a “Similar Healthcare Provider” and Why does it Matter?

Your friends at Professional Liability Matters often focus on interpretation of Affidavit of Merit (“AOM”) requirements. As our handy table shows, each state has its own rules as to AOM requirements and other details regarding substance and form. These rules are of critical importance to many malpractice claims. Most states require an AOM from a professional within the same field certifying that the malpractice case has merit. A recent decision focuses on the application of this rule in the med-mal context.

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Fee Dispute Arises from Largest Med-Mal Verdict in CT

A law firm in Connecticut recently recovered the largest med-mal verdict ever in the state only to be sued by their client for malpractice. How does that happen? We’ll tell you. Plaintiffs retained a well-known Connecticut law firm (“Firm”) to represent them in a med-mal claim alleging that Defendant Doctor (“Dr.”) made significant errors during childbirth which caused Plaintiffs’ son being born with cerebral palsy. In 2011, a jury returned a verdict for Plaintiffs, and awarded $58 million – the largest medical malpractice verdict in Connecticut state history. Following verdict, the parties settled for $25 million.

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Professional Liability to Strangers

Professionals owe their clients a duty to exercise the care, diligence, and skill expected of others in their profession in similar circumstances. Generally, the professional-client relationship defines the scope of this duty of care. However, in certain circumstances, the professional’s duty may extend to third parties, even complete strangers to the professional relationship. This is where things get tricky.

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Liability for Lack of Malpractice Insurance?

Friends of PL Matters know that maintaining malpractice insurance is a must, regardless of your profession. Clients count on professionals to get things done right. When things don’t go exactly as planned, clients get unhappy, lawsuits are filed, and malpractice insurance kicks in to protect the professional. But what if the professional lacks insurance? May the client maintain a cause of action for lack of insurance?

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Proper Use of Expert Opinions

Expert witnesses are critical in many professional malpractice cases. This is particularly true in the med-mal context where expert testimony may be necessary to help understand causation. More specifically, experts in medical malpractice cases are essential in helping the fact finder determine whether the medical professional’s actions (or inactions) were the cause of the alleged injury. Whether an expert succeeds in this task can be the difference between a win and a loss at trial and in some cases on a motion for summary judgment. Take for example the following scenario.

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Communication Breakdown = PL Claim

Communication is key. Defining clear objectives, limiting unreasonable expectations, and keeping the client reasonably informed of any developments in the matter at hand all go a long way to maintaining client satisfaction. However, not all professionals prioritize these relatively simple measures for successful representation. According to a recent study investigating malpractice claims against medical professionals, poor communication is a major contributor to liability actions. The study analyzed over 1800 lawsuits against doctors arising between 2007 and 2014, with a focus on the specific elements that led to patient injury.

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Prescription for Negligence?

Like all professionals, pharmacists owe a duty of care to their clients. The level of care and the specific duty owed, however, can vary depending on the jurisdiction. Historically, most states assign the duty to warn about the potential dangers, side effects or general usage of a drug to the physician or drug manufacture. Since pharmacists are not prescribing the medication, their potential liability is generally limited to scenarios involving the negligent filling of a prescription. However, a recent trend in the field has been expanding the potential liability of the pharmacists by holding them liable for failing to warn about a drug in certain situations or failing to consult the prescribing physician. A decision out of the state of Florida highlights this growing trend and creates a cause for concern in the profession.

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Emotional Distress in Medical Malpractice Claims?

We were pleased to see your interest in our recent post regarding emotional distress damages in the LPL space. In continuing with that topic, we turn to emotional distress claims in the context of medical malpractice. Medical malpractice victims are generally entitled to recover for emotional harm they endure, but what about the victim’s family? Many states permit some form of recovery for bystander emotional distress. However, translating that type of claim into the field of medical malpractice can be trickier as there is often no specific “accident” to observe when a medical mistake is made. The Supreme Court of Connecticut recently addressed this issue, reconciling a split in the state courts as to whether a claim of bystander emotional distress was available as a result of medical malpractice.

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No Defense of Informed Consent in PA

Informed consent is a critical aspect of the medical profession, and often can provide a defense in med-mal cases. The Pennsylvania Supreme Court, however, recently limited the defense. In Brady v. Urbas, the court held that unless there is an allegation of lack of informed consent, the fact “that a patient affirmatively consented to treatment after being informed of the risks of that treatment is generally irrelevant to a cause of action sounding in medical negligence.” The ruling upholds the Superior Court's holding that a trial judge improperly admitted into evidence consent forms signed by the plaintiff prior to surgery.

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A-Rod Sues Yankees Doc For Malpractice

In the midst of his appeal of a 211-game suspension arising from the alleged use of performance enhancing drugs, Alex Rodriguez just filed the anticipated malpractice suit against a Yankees’ team physician. Professional Liability Matters posted of the rumblings of a malpractice suit in August. Now, the other shoe dropped. Although the allegations are serious, many speculate that A-Rod’s real goal of this lawsuit is to distract from A-Rod’s steroid controversy and to deflect blame.

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