Medical Malpractice


Casebook Case Summaries

Alfonso v. Lund
Ascher v. Gutierrez
Anderson v. Somberg
Ashman v. SK & F Lab Co.
Bardoni v. Kim (two cases)

Bing v. Thunig
Boody v. U.S.
Bond v. District Court County of Denver

Bundren v. Los Robles Regional Medical Center
Burgess v. Perdue
Chatman v. Millis

Chew v. Paul D. Meyer, M.D., P.A.
Clarke v. Hoek

C.S. v. Nielson
DiFilippo v. Preston

Estrada v. Jaques
Foote v. US v. Michael Reese Hospital and Medical Center

Ferrara v. Galluchio
Gilson v. Mitchell

Helling v. Carey
Herman by Warshafsky v. Milwaukee Children's Hosp.
Hill v. Springer

Hiser v. Randolph
Hook v. Rothstein
Horner v. Northern Pacific Beneficial Assn Hospitals

Humphers v. First Interstate Bank of Oregon
Jackson v. Power

Johns Hopkins Hospital v. Genda
Kearns v. Superior Court (Von Rader)
Keene v. Wiggins

Kennedy v. Parrott
Kubrick, U. S. v.
Leach v. Shapiro, Estate of

Largess v. Tatem
Lee v. H. Miles
Lilly v. Fieldstone
Logan v. Greenwich Hosp. Assn.
Lum v. Stinnett
Mattocks v. Bell
McCain v. Batson
McCord v. Maguire

McDermott v. Manhattan Eye, Ear and Throat Hospital
Meyer v. McDonnell.
Millsaps v. Bankers Life Co.
Mohr v. Williams
Morgan v. Cohen
Morowitz v. Marvel
Murray v. University of Pennsylvania Hosp.
Nicastro v. Park

Ostrowski v. Azzara
Panaro v. Electrolux Corp.
Pedroza v. Bryant

Perna v. Pirozzi
Pike v. Honsinger

Public Health Trust v. Wons
Ravi v. Williams
Ray v. Wagner
Samson v. Greenville Hosp. System (three cases)

Schoening v. Grays Harbor Community Hospital
Shepard v. Redford Community Hosp.
Shilkret v. Annapolis Emergency Hospital Ass'n
Siemieniec v. Lutheran Gen. Hosp.
Simcuski v. Saeli
Sloan v. Metropolitan Health Council of Indianapolic, Inc.

Sparger v. Worley Hospital, Inc.
Strachan v. John F. Kennedy Memorial Hospital
Steward v. Rudner
Sullivan v. O'Connor
Thompson v. Carter
Toth v. Community Hospital at Glen Cove

Tresemer v. Barke
Trower v..Jones

Truman v. Thomas
Ward v. Levy
Weil v. Seltzer
Willey v. Ketterer
Wilson v. Bodian

 

Hiser v. Randolph
Cite as: 126 Ariz. 608, 617 P.2d 774)
July 29, 1980.

Surviving spouse of deceased patient instituted malpractice action against physician "on call" in hospital emergency room whose refusal to treat patient suffering from acute hyperglycemia resulted in 40-minute delay in patient's testing and treatment. The Superior Court, Mohave County, Cause No. C-9267, J. Thomas Brooks, J., granted summary judgment in favor of physician and decedent's spouse appealed. The Court of Appeals, Jacobson, J., held that (1) physician was obligated by contract between physician and hospital to treat patient to best of his ability; (2) spouse of deceased patient had burden to show by expert testimony that patient probably died as a result of 40-minute delay in testing and treatment occasioned by physician's refusal to attend her; and (3) substantial fact issue existed as to whether 40-minute delay occasioned by physician's refusal to treat patient, in probability, proximately caused her death, precluding summary judgment. Reversed and remanded.


Largess v. Tatem
(Cite as: 130 Vt. 271, 291 A.2d 398)
Supreme Court of Vermont.
May 8, 1972.

Action wherein plaintiff sought to recover against two physicians and a hospital for alleged negligent treatment of a hip fracture sustained by her and against a manufacturer for alleged defects in a hip fixation device. All the defendants except one negotiated a settlement with plaintiff, and the County Court, Windham County, Larrow, J., entered judgment for plaintiff against remaining defendant, and latter appealed. The Supreme Court, Daley, J., held that where, in light of physician's admitted unfamiliarity with fixation device implanted in patient's hip, and hospital order which he had read relative to weight bearing on such device, an obligation to investigate arose and became part of his duty when he took over patient's care and supervision, and where physician's admitted reliance on an expert in a field (intertrochanteric fractures) in which he possessed little, if any, training and experience imposed on physician duty of consultation prior to allowing full weight bearing on patient's injured limb, which she did with physician's full knowledge and consent and with no instructions to contrary from him, actions of physician were inconsistent with due care and constituted negligence, and patient was not contributorily negligent for following a course of conduct which physician permitted and even encouraged during her hospital stay.
Affirmed.


Jackson v. Power
Supreme Court of Alaska.
Oct. 16, 1987.

Medical malpractice action was brought against hospital. The Superior Court, Fourth Judicial District, Fairbanks, Gerald J. Van Hoomissen, J., denied patient summary judgment and petition for review was filed. The Supreme Court, Burke, J., held that: (1) hospital could not be held vicariously liable for negligence or malpractice of independent contractor/physician under enterprise liability; (2) genuine issue of material fact as to whether hospital held itself out as providing emergency care services to public precluded summary judgment for patient on apparent authority theory; and (3) general acute care hospital's duty to provide physicians for emergency room care was nondelegable.
Affirmed in part, reversed in part, and remanded.


Keene v. Wiggins
(Cite as: 69 Cal.App.3d 308, *309)
Court of Appeal, Fourth District, Division 1, California.
April 25, 1977.

The trial court granted a motion to strike the complaint and a motion for summary judgment in favor of defendant doctor against whom an action for damages, arising from alleged malpractice, had been filed. The plaintiff, injured during an industrial accident, had been sent to defendant doctor by his employer's workers' compensation carrier. The doctor examined the plaintiff and wrote the insurance company an opinion letter in which he stated that the plaintiff's condition was not amenable to surgery and recommended no further treatment. Plaintiff received a copy of the report and allegedly relied on it to his detriment. In granting summary judgment, the trial court agreed the doctor was conducting an examination solely for the purpose of rating an injury to settle a workers' compensation claim and not for care or treatment. The trial court held that there was no physician- patient relationship and hence no duty was owed. (Superior Court of San Diego County, No. 367256, Jack R. Levitt, Judge.)

The Court of Appeal affirmed. The court held the doctor was not liable to the plaintiff for negligence in making a report of the physical examination since the doctor conducted the examination solely for the purpose of rating the plaintiff's injury for the employer's insurance carrier in a workers' compensation proceeding, he neither offered or intended to treat, care for or otherwise benefit the plaintiff examined, and he had no reason to believe that the plaintiff would rely on his report. The court further held there was no physician-patient relationship, express or implied, of the sort giving rise to a duty of care owed to the plaintiff in connection with the medical report, since the plaintiff went to the doctor's office at the request of the insurance carrier for examination, the plaintiff was present because he was required to submit to examination as a claimant, the carrier requested the examination to *309 verify the opinions of other consulting doctors who had stated no operation or treatment was called for and to rate the disability, and the defendant's opinion was needed to rate properly the case for settlement of the plaintiff's claim. (Opinion by Cologne J., with Brown (Gerald), P. J., and Stansforth, J., concurring.)


Chatman v. Millis
Supreme Court of Arkansas.
Jan. 13, 1975.

Action was brought by divorced husband against psychologist for malpractice and for defamation. Psychologist made special appearance and on motion to quash, the Circuit Court, White County, Elmo Taylor, J., held that there was no cause of action for malpractice against a psychologist and that venue was improper on remaining count of defamation, and husband appealed. The Supreme Court, Harris, C.J., held that psychologist owed no duty, as a doctor, to husband, who was not a patient, and thus there was no basis for action for malpractice. Affirmed.


PIKE v. HONSINGER
Court of Appeals of New York.
March 1, 1898.

Appeal from supreme court, general term, Third department.
Action by George W. Pike against Willis T. Honsinger. From a judgment of the general term (32 N. Y. Supp. 1149) affirming a judgment in favor of defendant entered on a verdict by the court, plaintiff appeals. Reversed.
By this action the plaintiff sought to recover damages from the defendant, a physician and surgeon, for negligence in treating his knee, which had been injured by an accident. On the trial, at the close of the evidence given in behalf of the plaintiff, a motion for a nonsuit was made and denied, but at the close of all the evidence the court directed a verdict in favor of the defendant. After an affirmance by the general term, without an opinion, the plaintiff came here. The facts appear in the opinion.
Bartlett, J., dissenting.


Shilkret v. Annapolis Emergency Hospital Ass'n
Court of Appeals of Maryland.
Oct. 8, 1975.

Negligence action was brought against several physicians and a hospital. At trial, the Circuit Court, Anne Arundel County, James L. Wray, J., applied the strict locality rule and directed a verdict for defendants. The Court of Special Appeals affirmed, and certiorari was granted. The Court of Appeals, Levine, J., held that a physician is under a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances; that a hospital is required to use that degree of care and skill which is expected of a reasonably competent hospital in the same or similar circumstances; and that evidence that there was a national standard of care for accredited hospital in the prenatal, intrapartum and perinatal periods of pregnancy, and that there were national standards of care for child delivery, infant care, the treatment of neurological problems, and the measure of vital functions, was sufficient to take the standard of care issue to the jury as to all defendants.
Judgment of the Court of Special Appeals reversed and cause remanded with instructions.


HELLING v. CAREY
Supreme Court of Washington, En Banc.
March 14, 1974.

Malpractice action against ophthalmologists in which a patient claimed that she suffered permanent visual damage due to open angle glaucoma as a result of defendants' failure to diagnose and treat the condition. The trial court entered judgment for defendants following a defense verdict, the Court of Appeals, Division I, James, J., affirmed, and the patient petitioned for review. The Supreme Court, Hunter, J., held that defendants were negligent as a matter of law in failing to administer a simple glaucoma test to the patient despite uncontradicted expert testimony that it was the universal practice of ophthalmologists not to administer glaucoma tests to patients under age 40 because the incidence of glaucoma at younger ages was so small.
Reversed and remanded for new trial on issue of damages only.
Utter, J., concurred and filed opinion in which Finley and Hamilton, JJ., concurred.


McCord v. Maguire
United States Court of Appeals,
Ninth Circuit.
Decided April 28, 1989.

Patient who alleged physician's negligence in gallbladder surgery, treatment of subsequent hemobilia, and subsequent exploratory surgery destroyed much of her liver and limited her life expectancy brought malpractice suit. Following trial before the United States District Court for the District of Oregon, Owen M. Panner, Chief Judge, general verdict was returned in patient's favor. Physician appealed. The Court of Appeals, Kozinski, Circuit Judge, held that: (1) when general verdict may have rested on factual allegations unsupported by substantial evidence, verdict will be upheld if evidence is sufficient with respect to any of allegations, and (2) physician waived right to attack sufficiency of evidence to support some factual allegations by failing to request use of special verdicts, and court will not review based on mere theoretical possibility that jury based its decision on unsupported specifications only. Affirmed.


Toth v. Community Hospital at Glen Cove
Court of Appeals of New York.
June 5, 1968.

Action for damages was brought against pediatrician, ophthalmologist, and hospital by prematurely born babies blinded or partially blinded by retrolental fibroplasia allegedly caused by administration of six liters of oxygen a minute in hospital instead of four liters a minute as ordered by pediatrician. The Supreme Court, Trial Term, Nassau County, Joseph Liff, J., entered judgment July 6, 1965 dismissing the complaint as to the hospital at the end of the entire case and in favor of the pediatrician and ophthalmologist on a jury verdict. The Supreme Court, Appellate Division, Second Judicial Department, entered an order July 10, 1967 affirming, by a divided court, the judgment of the Trial Term, and the babies appealed. The Court of Appeals, Keating, J., held that evidence required submission to jury of issue whether pediatrician was negligent in failing to discover that nurses were administering six liters of oxygen a minute instead of four liters a minute, and that babies made out a prima facie case against hospital when they introduced substantial evidence to establish that nurses had not conformed to pediatrician's orders.
Order of Appellate Division modified so as to order new trial against hospital and pediatrician and otherwise affirmed.


DiFILIPPO v. PRESTON
Supreme Court of Delaware.
June 29, 1961.

Action for personal injuries and medical expenses resulting from alleged malpractice of a surgeon in performing a thyroidectomy. A directed verdict was entered for defendant in the Superior Court, New Castle County, and plaintiffs appealed. The Supreme Court, Wolcott, J., held that choice by a surgeon of one of two acceptable surgical techniques for performance of a thyroidectomy was not a negligent act on his part, even though the surgery resulted in permanent damage to recurrent laryngeal nerves of the patient.
Judgment affirmed.


Clarke v. Hoek
Court of Appeal, First District, Division 3, California.
Nov. 8, 1985.

Patient brought action against physician who proctored two surgical operations performed on patient by another surgeon. The Mendocino County Superior Court, Arthur A. Broaddus, J., granted summary judgment for physician, and patient appealed. The Court of Appeal, Scott, J., held that: (1) conflicting opinion testimony by doctors whether proctoring physician had duty to patient did not create disputed factual issue on existence of such duty, which was matter of law for court to decide; (2) physician and patient had no special relationship warranting imposition of duty on physician such that physician could be liable for inaction towards patient; (3) physician's proctoring of patient's operations was not a voluntary undertaking which imposed a duty of care upon physician; (4) physician had no duty of care towards plaintiff on theory that physician's duty to plaintiff was commensurate with that of hospital; and (5) imposing duty of care on physician would be contrary to strong public interest in encouraging medical peer review activities. Affirmed.



Bardoni v. Kim (Two Cases)
Decided April 22, 1986.

Survivors of patient's mother and brother filed suit against psychiatrist for negligently failing to diagnose that the patient was dangerous to members of his family and failing to warn them of the patient's potential dangerousness. The Circuit Court, Wayne County, Robert J. Colombo, J., granted summary judgment for the psychiatrist in each action. Appeals were taken as of right. The appeals were consolidated. The Court of Appeals held that: (1) when a psychiatrist determines or, pursuant to the standard of care of his profession, should determine that his patient poses a serious danger of violence to a readily identifiable third person, the psychiatrist has a duty to use reasonable care to protect that individual against the danger; (2) the mother was not a readily identifiable victim of the patient's violence; and (3) whether the psychiatrist should have known that his patient was dangerous specifically to his brother was a fact issue, precluding summary judgment. Affirmed in part and reversed in part.


Shepard v. Redford Community Hosp.
Court of Appeals of Michigan.
Decided April 22, 1986.

Parents of deceased child brought wrongful death action against hospital in their individual capacities, and in mother's capacity as personal representative of son's estate. The Wayne County Circuit Court, John H. Hausner, J., after dismissing mother and father as plaintiffs in their individual capacities, subsequently dismissed action for failure to state a claim. Mother appealed. The Court of Appeals held that absence of physician-patient relationship between hospital and deceased child did not preclude finding of duty where hospital had physician-patient relationship with child's mother, who allegedly infected five-year-old son with her undiagnosed spinal meningitis, leading to his death. Reversed and remanded.



Sparger v. Worley Hospital, Inc.
Supreme Court of Texas.
Jan. 12, 1977.

Patient brought medical malpractice action against hospital and surgeon for injuries resulting from failure to remove sponge from patient's abdominal cavity before finishing surgical operation. The District Court, Gray County, Grainger W. McIlhany, J., entered judgment against hospital and in favor of the surgeon and hospital appealed. The Court of Civil Appeals, 529 S.W.2d 639, affirmed in part and reversed and rendered in part, finding that surgeon was liable and that hospital and surgeon were jointly and severally liable, and surgeon appealed. The Supreme Court, Pope, J., held that so-called "captain of the ship doctrine" was a false special rule of agency and operating surgeons at hospitals were subject to same principles of agency law applicable to others; and that cause would be remanded to Court of Civil Appeals for determination of whether jury's refusal to find that nurses were the "borrowed servants" of the surgeon was against the great and overwhelming weight of the evidence. Judgment of Court of Civil Appeals reversed and case remanded.

SLOAN v. The METROPOLITAN HEALTH COUNCIL OF INDIANAPOLIS, INC.
Court of Appeals of Indiana,
First District.
Dec. 23, 1987.

Members brought medical malpractice action against health maintenance organization, alleging negligent failure to diagnose. The Hancock Superior Court, Richard T. Payne, J., entered summary judgment for health maintenance organization on grounds that corporation was not vicariously liable for malpractice of physician employed by corporation, and members appealed. The Court of Appeals, Neal, J., held that: (1) material issue of disputed fact as to whether usual requisites of agency or employer-employee relationship existed precluded summary judgment on issue of whether health maintenance organization was vicariously liable for malpractice of employee-physician, and (2) health maintenance organization could not avoid liability under doctrine of respondeat superior by not incorporating under Professional Corporations Act.
Reversed.


Pedroza v. Bryant
(Cite as: 101 Wash.2d 226, 677 P.2d 166)
Supreme Court of Washington, En Banc.
Feb. 16, 1984.

Action was instituted against hospital for alleged negligence in violating a duty of care to plaintiff's decedent. The Superior Court, Skagit County, Daniel T. Kershner, J., sustained defendant's motion for summary judgment of dismissal, and plaintiff appealed. The Supreme Court, Pearson, J., held that: (1) doctrine of corporate negligence is applicable in Washington so as to impose on a hospital a nondelegable duty owed directly to the patient to grant hospital admitting and treating privileges to only competent physicians, but the doctrine extends only to those who are patients within the hospital and, hence, does not extend to those who at the time of harm are being treated in the private offices of the physicians, and (2) the hospital named as the defendant in the case could not, therefore, be held liable under a theory of corporate negligence for its action in granting privileges to a nonemployee doctor who was alleged to have committed malpractice toward the plaintiff's decedent while in private practice off the hospital premises.
Affirmed.


SCHOENING v. GRAYS HARBOR COMMUNITY HOSPITAL
Court of Appeals of Washington,
Division 2.
As Amended on Denial of Reconsideration
May 29, 1985

Patient and her husband brought action against hospital under theories of respondeat superior and corporate negligence. The Superior Court, Grays Harbor County, John W. Schumacher, J., entered summary judgment in favor of hospital, and patient and her husband appealed. The Court of Appeals, Alexander, J., held that: (1) recovery under theory of respondeat superior was precluded by settlement with doctors; but (2) doctor's affidavit raised fact question as to whether hospital satisfied its duty of care to patient; and (3) amended complaint was sufficient to put hospital on notice that patient and her husband were seeking to establish hospital's liability based on theory of corporate negligence. Reversed and remanded.


Gilson v. Mitchell
(Cite as: 131 Ga.App. 321, 205 S.E.2d 421)
Court of Appeals of Georgia, Division Nos. 1, 2, 3.
Feb. 27, 1974.
Rehearing Denied March 15, 1974.

Negligence action against doctors. The Supreme Court, Fulton County, Luther Alverson, J., found for doctors and plaintiffs appealed. The Court of Appeals, Hall, P.J., held that doctor who inserted catheter and doctors who thereafter removed catheter and found it to be short and subjected patient to further medical treatment to find missing part could be sued as joint tort-feasors by patient who claimed that alleged missing length never existed but was in fact cut off by doctor prior to insertion. Reversed.


Foote v. U.S.
(Cite as: 648 F.Supp. 735)
United States District Court, N.D. Illinois, Eastern Division.
Oct. 22, 1986.

Patient sued Government under Federal Tort Claims Act for government hospital's failure to diagnose and treat injury. After Government filed third-party complaint against hospital which first treated injury seeking contribution, hospital moved to dismiss. The District Court, Aspen, J., held that hospital could be liable to Government for contribution under Illinois Contribution Act. Motion denied.


Lum v. Stinnett
(Cite as: 87 Nev. 402, 488 P.2d 347)
Supreme Court of Nevada.
Sept. 3, 1971.

Malpractice action by patient against three physicians alleging that they negligently failed to detect and treat compression fracture in his spine. The Eighth Judicial District Court, Clark County, Taylor H. Wines, J., granted motions for dismissal of two insured defendants but denied third defendant's motion for dismissal and entered judgment on jury verdict against such third defendant, and he appealed. The Supreme Court, Gunderson, J., held that agreements, by which insurance carriers for the two dismissed defendants accepted plaintiff's proposal that carriers pay sum necessary to bring recovery up to $20,000 if jury awarded less than $20,000 in return for plaintiff's not executing against insured defendants if verdict exceeded $20,000 and not opposing motion for directed verdict in their favor on condition that plaintiff in addition agree to prosecute his action against third defendant and not settle, without consent, for less than $20,000, were contrary to law and public policy, and that action on remand would be reinstated against the two dismissed defendants as well as third defendant. Reversed and remanded.



WILSON v. BODIAN
(Cite as: 130 A.D.2d 221, 519 N.Y.S.2d 126)
Supreme Court, Appellate Division,
Aug. 10, 1987.

Patient brought medical malpractice action against ophthalmologist for his performance of allegedly unnecessary surgery. The jury in the Supreme Court, Kings County, Clemente, J., entered judgment against doctor for $100,000 and ophthalmologist appealed. The Supreme Court, Appellate Division, Spatt, J., held that: (1) portions of treating physician's office records germane to diagnosis and treatment which were legible were properly admissible in evidence as business records; (2) notation in physician's office records containing abbreviation without well-known and accepted meaning in medical profession was inadmissible; and (3) missing witness charge was required for treating physician whose office records were admitted into evidence. Reversed.



HILL v. SPRINGER
(Cite as: 132 Misc.2d 1012, 506 N.Y.S.2d 255)
Supreme Court, New York County,
July 29, 1986.

Patient sought access to videotape of surgery performed on him to determine whether he had meritorious medical malpractice claim. The Supreme Court, New York County, Stanley L. Sklar, J., held that: (1) the patient was not entitled to access to the videotape as prelitigation disclosure in the aid of bringing an action where there was no showing of the existence of any cause of action or even of any injury allegedly suffered, and (2) videotape was not a "medical record" that was required to be released to the patient before the commencement of any action. Petition denied.



BOND v. DISTRICT COURT COUNTY OF DENVER
(Cite as: 682 P.2d 33)
Supreme Court of Colorado, En Banc.
Rehearing Denied May 21, 1984.

Child, who was injured when she fell off truck and was run over by one of its wheels, and her family brought personal injury action against truck owner, seeking recovery of damages including mental pain and suffering and psychiatric expenses. Defendant truck owner filed motion for order compelling discovery as to written notes and records made by families' therapist during psychological evaluations and psychiatric care and treatment, and family filed motion for protective order. The District Court, Denver County, denied protective order and ordered family to produce documents, and family brought original proceeding seeking reversal of judge's order. The Supreme Court, Neighbors, J., held that: (1) family waived physician-patient privilege by bringing action requesting award of damages for mental suffering and expenses for psychiatric care, and (2) trial court abused its discretion in failing to balance family's interest in protecting confidentiality of communications with treating therapist against truck owner's interest in obtaining sufficient evidence to contest damage claims. Rule to show cause made absolute; remanded.



LEE v. H. MILES
(Cite as: 317 F.Supp. 1404)
United States District Court, N.D. Texas, Fort Worth Division.
Sept. 1, 1970.

Malpractice action against osteopathic physician and others for personal injuries alleged to have been sustained as result of negligence in performing an operation. The jury returned a verdict awarding plaintiff $22,500 plus medical and hospital expenses. The District Court, Brewster, J., found that award was excessive, and remittitur of sum in excess of $7,500 plus doctor, hospital and medical expenses was ordered, otherwise new trial was required. Ordered accordingly.



TROWER v..JONES
(Cite as: 121 Ill.2d 211, 520 N.E.2d 297, 117 Ill.Dec. 136)
Supreme Court of Illinois.
Rehearing Denied April 5, 1988.

Patient and husband brought medical malpractice action. The Circuit Court, Douglas County, Frank W. Lincoln, J., entered judgment on verdicts in favor of physician, and plaintiffs appealed. The Appellate Court, 149 Ill.App.3d 705, 103 Ill.Dec. 63, 500 N.E.2d 1134, reversed and remanded. After grant of physician's petition for leave to appeal, the Supreme Court, Cunningham, J., held that: (1) it was proper to inquire how much plaintiffs' medical expert witness was earning annually from services relating to rendering expert testimony, and it was proper to inquire into such income for the two years immediately preceding trial, and (2) inquiry into frequency with which plaintiffs' medical expert witness testified for plaintiffs was permissible. Appellate Court reversed; circuit court affirmed.



MEYER v. McDONNELL.
(Cite as: 40 Md.App. 524, 392 A.2d 1129)
Court of Special Appeals of Maryland.
Nov. 2, 1978.

The Baltimore City Court, Marshall A. Levin, J., entered judgment in favor of physician in medical malpractice action, and injured party appealed. The Court of Special Appeals, Thompson, J., held that: (1) evidence of physician's attempted intimidation of witnesses had probative value as far as it related to consciousness of weakness of his case and could be considered by jury for such purpose, and thus instruction under which jury could not have properly considered corroborative effect of evidence of attempted intimidation was too confining; (2) it could not be said that evidence of misconduct in attempting to influence witnesses would not have turned scales of justice in jury's mind if they had been properly instructed, and (3) injured party's privilege not to disclose communications relating to diagnoses or treatment of prior mental or emotional disorder was not violated in that such privilege did not apply where party introduced his medical condition as element of his claim or defense. Reversed and remanded.



JOHNS HOPKINS HOSPITAL v. GENDA
(Cite as: 255 Md. 616, 258 A.2d 595)
Court of Appeals of Maryland.
Nov. 13, 1969.

Action against hospital for injuries to plaintiffs' minor son resulting from fragment of needle left in his body during heart surgery. The Superior Court of Baltimore City, Meyer M. Cardin, J., denied defendant's motion for directed verdict, and entered judgment on jury verdict for plaintiffs, and defendant appealed. The Court of Appeals, Finan, J., held that plaintiffs were not entitled to recover in absence of evidence regarding required standards to be observed in open heart surgery operation, and in absence of showing that doctor, who was agent of hospital, sutured cavity in any manner other than with reasonable degree of care and skill that surgeon would ordinarily employ. Reversed.



McDERMOTT v. MANHATTAN EYE, EAR & THROAT HOSPITAL
(Cite as: 15 N.Y.2d 20, 203 N.E.2d 469, 255 N.Y.S.2d 65)
Court of Appeals of New York.
Nov. 25, 1964.

Malpractice action. The Supreme Court, Special and Trial Term, New York County, Charles A. Loreto, J., dismissed complaint, and the plaintiff appealed. The Supreme Court, Appellate Division, 16 A.D.2d 374, 228 N.Y.S.2d 143, modified the judgment by providing that dismissal as to specified defendants should be without prejudice, and the plaintiff appealed. The Court of Appeals, Fuld, J., held that plaintiff could call defendant physician to stand and question him both as to his factual knowledge of case and, if he was qualified, as expert for purpose of establishing generally accepted medical practice in community. Judgment modified and, as modified, affirmed.



RAVI v. WILLIAMS.
(Cite as: 536 So.2d 1374)
Supreme Court of Alabama.
Nov. 18, 1988.

Physician appealed from order of the Circuit Court, Limestone County, Henry W. Blizzard, Jr., J., entered in favor of patient in medical malpractice action. The Supreme Court, Shores, J., held that: (1) it was physician's responsibility to remove all sponges from inside patient before closing of abdominal incision; (2) physician could be held liable although he delegated task of accounting for surgical sponges to nurse; and (3) admitting deposition of medical expert into evidence was not error. Affirmed.



WARD v. LEVY
(Cite as: 27 Mass.App.Ct. 1101, 534 N.E.2d 308)
Appeals Court of Massachusetts,
Decided Feb. 28, 1989.

Medical malpractice tribunal found for dentist on patient's claim of negligence in extraction of tooth. After patient failed to file required bond, action was dismissed by the Superior Court, Suffolk County. Patient appealed. The Appeals Court held that expert medical testimony was required to prove that facial cuts suffered by patient during tooth extraction resulted from dental negligence. Affirmed.



HORNER v. NORTHERN PACIFIC BENEFICIAL ASSOCIATION HOSPITALS, INC.
(Cite as: 62 Wash.2d 351, 382 P.2d 518)
Supreme Court of Washington
June 13, 1963.

Patient brought action against hospital for paralysis of right arm after patient underwent abdominal surgery. The Superior Court, Pierce County, Floyd V. Hicks, J., entered judgment for the patient, and the hospital appealed. The Supreme Court, Hale, J., held that the res ipsa loquitur doctrine was applicable, and that evidence sustained the verdict. Judgment affirmed.



NICASTRO v. PARK
Cite as: 113 A.D.2d 129, 495 N.Y.S.2d 184)
Supreme Court, Appellate Division,
Nov. 12, 1985.

Medical malpractice action was brought against attending physician and consulting physician arising from patient's death as a result of coronary thrombosis. The Supreme Court, Suffolk County, Gerard, J., set aside jury verdict in favor of physicians as contrary to weight of evidence and ordered new trial. On appeal, the Supreme Court, Appellate Division, Lazer, J.P., held that trial court did not abuse its discretion in setting aside verdict in favor of physicians as contrary to weight of evidence, including evidence that patient's developing myocardial infarction was misdiagnosed as a virally induced problem based on inconclusive tests, and that patient, a heavy smoker and coffee drinker whose work involved physical labor, was released to normal activity. Affirmed.



MATTOCKS v. BELL
District of Columbia Court of Appeals.
Decided Oct. 16, 1963.

Assault and battery action brought against medical student who slapped infant patient. The District of Columbia Court of General Sessions, DeWitt S. Hyde, J., entered judgment for defendant, and plaintiff appealed. The District of Columbia Court of Appeals, Hood, C. J., held that whether medical student used required force in not improper manner when he slapped 23-month-old patient who clamped her teeth on student's finger causing blood to spurt from finger, was jury question. Affirmed.



MOHR v. WILLIAMS
Supreme Court of Minnesota.
June 23, 1905.

Action by Anna Mohr against Cornelius Williams. From an order denying a motion for judgment notwithstanding the verdict, defendant appeals; and from an order granting a new trial, plaintiff appeals. Affirmed.

Plaintiff consulted defendant concerning a difficulty with her right ear, and defendant advised an operation, to which plaintiff consented. When plaintiff was unconscious from anaesthetics, defendant examined her left ear, and found it in greater need of an operation, and called the attention of plaintiff's family physician to its condition, and concluded that the operation should be performed upon the left, instead of the right, ear, to which the family physician, who was present at plaintiff's request, made no objection. Plaintiff had not previously expressed any difficulty with the left ear, and was not informed, prior to the operation, that any difficulty existed with reference to it, and had not consented to an operation thereon. Held, that defendant had no authority to perform the operation without plaintiff's consent, express or implied.



243 N.C. 355
KENNEDY v. PARROTT
Supreme Court of North Carolina.
Jan. 13, 1956

Action against surgeon on theory of negligence and also on theory of assault and trespass. From a judgment of involuntary nonsuit entered by the Superior Court, Lenoir County, Joseph W. Parker, J., the plaintiff appealed. The Supreme Court, Barnhill, C. J., held that in action against surgeon for phlebitis allegedly resulting from unauthorized puncturing of cysts on left ovary while performing authorized appendectomy, the evidence was insufficient for jury on issues of negligence, assault or trespass. Affirmed.

 

PERNA v. PIROZZI
Supreme Court of New Jersey.
Decided March 2, 1983.

In medical malpractice case, the Superior Court, Law Division, Passaic County, entered verdict of no cause of action, and patient and his wife appealed. The Superior Court, Appellate Division, > 182 N.J.Super. 510, 442 A.2d 1016, King, J.A.D., affirmed, and certification was granted. The Supreme Court, Pollock, J., held that: (1) trial court's refusal to permit plaintiffs to show possible bias of panel doctor and to impeach testimony of doctor defendant, constituted reversible error; (2) statute requiring pretrial submission of medical malpractice claims to panel consisting of judge, attorney and physician is constitutional; and (3) patient who consents to surgery by one surgeon but is actually operated on by another has action for medical malpractice or battery. Reversed and remanded.



38 A.L.R.4th 879
Logan v. Greenwich Hosp. Ass'n
Supreme Court of Connecticut
Decided Sept. 6, 1983


Patient brought action to recover damages for medical malpractice against internist, urologist, radiologist, and hospital. The Superior Court, Judicial District of Fairfield at Bridgeport, McGrath, J., entered judgment for all defendants, and patient appealed. The Supreme Court, Shea, J., held that: (1) a physicians's duty to advise patient of possible alternatives in obtaining informed consent to an operative procedure requires disclosure of a more hazardous alternative; accordingly, in the instant action for malpractice stemming from a closed needle kidney biopsy during which plaintiff's gallbladder was punctured, trial court's instruction that physician's duty to inform patient did not encompass warning of an alternative that was more hazardous, specifically, an open kidney biopsy performed under general anesthesia, was reversible error; (2) failure to amplify instruction as to evaluation of answers given by expert witnesses to include consideration of sufficiency of facts assumed in hypothetical question was not substantially harmful; (3) charge made sufficient reference to evidence to serve as adequate guide to jury; (4) limitation of standard of care to medical practice within Connecticut was error, but not harmful; (5) evidence did not establish negligence on part of radiologist, hospital, or referring internist; (6) failure to record unanimity of jury verdict caused by patient's interruption to request poll was not reversible error; and (7) evidence was sufficient to support finding of damages. Error in part; new trial.



Hook v. Rothstein
Court of Appeals of South Carolina.
April 16, 1984.

Action was brought against radiologist for the wrongful death of a patient allegedly caused by radiologist's alleged failure to inform patient of the potential fatal risks involved in an intravenous pyelogram procedure. The Court of Common Pleas, Lexington County, Julius H. Baggett, J., entered summary judgment in favor of administratrix of deceased patient, and radiologist appealed. The Supreme Court, Littlejohn, J., reversed and remanded. On remand, the Court of Common Pleas, Lexington County, John B. Grimball, J., entered judgment in favor of radiologist, and administratrix appealed. The Court of Appeals, Goolsby, J., held that: (1) scope of radiologist's duty to disclose to patient the material risks inherent in the intravenous pyelogram procedure was to be measured by those communications a reasonable radiologist would have made under the same or similar circumstances; (2) administratrix had to establish radiologist's standard of care by expert medical evidence; and (3) causal connection would have existed between radiologist's failure to inform and patient's subsequent death only if reasonable person in patient's position would have refused the intravenous pyelogram procedure had he been told of the risk that allegedly resulted in patient's death. Affirmed.




Estrada v. Jaques
Court of Appeals of North Carolina.
Oct. 16, 1984.

Patient brought medical malpractice action against radiologists and surgeons following unsuccessful embolization procedure performed on his leg, resulting in amputation. The Superior Court, Orange County, Henry V. Barnette, Jr. and Giles R. Clark, JJ., made various rulings on motions to amend pleadings, for summary judgment, and to compel discovery, and plaintiff appealed. The Court of Appeals, Becton, J., held that: (1) amended complaint related back to original complaint; (2) under the circumstances, it would have been unfair to consider merits of plaintiff's appeal as to radiologists; and (3) consent obtained by surgeons failed to satisfy statutory requirements. Affirmed in part; reversed in part; dismissed in part.



611 P.2d 902
Truman v. Thomas
Supreme Court of California
Jun 9, 1980.


Decedent's two minor children brought a wrongful death action against a physician for his failure to perform a pap smear test on their mother, who died of cervical cancer. Expert testimony was presented which indicated that if decedent had undergone a pap smear during the time she was defendant's patient the tumor probably would have been discovered in time to save her life. Plaintiffs contended that defendant's failure to inform decedent of the material risks of not consenting to a recommended pap smear, so that decedent might make an informed choice, breached his duty of care to decedent. The trial court rejected instructions to that effect requested by plaintiffs. The jury rendered a special verdict finding defendant free of any negligence that proximately caused decedent's death. (Superior Court of Butte County, No. 54314, Lucian B. Vandegrift, Judge.)

The Supreme Court reversed. The court held that refusal to give the requested instruction meant that the jury was unable to consider whether defendant breached a duty by not disclosing the danger of failing to undergo a pap smear, and since that theory found support in the record, it was error for the trial court to refuse to give the requested instruction. The court further held that if the jury had been given the instruction and had found in favor of plaintiffs, such a finding would have had support in the record, and the error therefore was reversible error. The court also held the trial court properly refused to give an instruction that as a matter of law a physician who fails to perform a pap smear test on a female patient is liable for injury or death proximately caused by such failure. (Opinion by Bird, C. J., with Tobriner, Mosk and Newman, JJ., concurring. Separate dissenting opinion by Clark, J., with Richardson and Manuel, JJ., concurring.)



14 Fla. L. Weekly 112
Public Health Trust of Dade County v. Wons
Supreme Court of Florida
March 16, 1989

Hospital brought action seeking court order allowing administration of life- saving blood transfusions to adult patient who for religious reasons refused transfusions. The Circuit Court, Dade County, Edmund W. Newbold, J., appointed guardian ad litem and ordered transfusions. The patient appealed. The District Court of Appeal, 500 So.2d 679, reversed and certified to Supreme Court question whether competent adult had lawful right to refuse blood transfusion without which she may well die. The Supreme Court, Kogan, J., held that state's interest in having children raised by two loving parents was insufficient to overcome patient's right, pursuant to practice of her religion, to refuse life-saving blood transfusion. Affirmed.

Estate of Leach v. Shapiro
Court of Appeals of Ohio, Ninth District, Summit County.
May 2, 1984.

Relatives of patient who was placed on a life-support system after she suffered a respiratory-cardiac arrest which rendered her in a chronic vegetative state filed action seeking damages for time the patient was on life- support systems. The Probate Court Summit County, granted defendants' motion to dismiss for failure to state a claim upon which relief could be granted, and plaintiffs appealed. The Court of Appeals, Baird, J., held that: (1) a cause of action exists for wrongfully placing and maintaining a patient on life- support systems; (2) existence and nature of any consent to placing patient on life-support systems, and nature of treatments before and after patient was placed on such systems, were all factual questions the answer to which determined whether plaintiffs were entitled to relief, and thus, trial court erred in dismissing plaintiffs' complaint for failure to state a claim; (3) plaintiffs' allegations that defendants failed to advise family of patient's course of treatment during two-month period patient was on life-support systems, and allegations that during such period defendants administered experimental drugs to the patient without the family's consent were questions of fact, dismissal of which was improper; (4) plaintiffs could not recover damages for any invasion of patient's right to privacy; (5) trial court erred in dismissing plaintiffs' claim that defendants caused an improper delay in carrying out probate court order terminating life-support measures; and (6) thus, plaintiffs' claim for punitive damages would be reinstated. Judgment reversed and cause remanded.



Thompson v. Carter
Supreme Court of Mississippi.
Oct. 7, 1987.

Patient brought medical malpractice action following alleged severe allergic response to prescribed drug. The Circuit Court, Harrison County, Kosta N. Vlahos, J., directed verdict for physician and patient appealed. The Supreme Court, Prather, J., held that: (1) drug package insert, properly identified, was admissible under hearsay exception; (2) expert witness in fields of pharmacology and toxicology should have been allowed to testify concerning medical standard of care with respect to use and administration of drug in question; and (3) exclusion of that evidence warranted new trial. Reversed and remanded for new trial.



Tresemer v. Barke
Court of Appeal, Second District, Division 5, California.
Nov. 22, 1978.

Patient sued doctor to recover for injuries allegedly sustained from insertion of intrauterine device. The Superior Court, Los Angeles County, Alfred L. Margolis, J., entered summary judgment in favor of defendant and plaintiff appealed. The Court of Appeal, Stephens, Acting P. J., held that: (1) summary judgment for defendant on basis that action was barred as having been brought more than one year after plaintiff should have discovered cause of injury was precluded by existence of genuine issue of material fact as to whether plaintiff's failure to discover cause of injury until more than two years after insertion of device was reasonable and not caused by lack of due diligence; (2) defendant was not liable on theory that his conduct had been either willful or negligently wrongful, where, at time, device was one of most popular and acceptable intrauterine devices on market and it was not until two years later that serious question as to its general safety was first raised and acknowledged in general medical community, and (3) plaintiff stated cause of action on theory that defendant had failed to warn plaintiff of dangerous effects of the device, when, subsequent to its insertion, defendant obtained factual knowledge of hazards and that such failure amounted to negligent breach of duty to warn arising by virtue of confidential relationship between defendant and plaintiff. Reversed.



Ashman v. SK & F Lab Co.
United States District Court, N.D. Illinois, Eastern Division.
Dec. 23, 1988.

Patient paralyzed by allegedly negligently performed lumbar puncture procedure brought products liability action against, inter alia, drug manufacturer. On manufacturer's motion for summary judgment, the District Court, Hart, J., held that: (1) patient's injury was not foreseeable result of purported failure to warn of drug's interactive propensities, and (2) manufacturer was not liable for failure to warn, in that prescribing physician was informed and learned intermediary. Motion granted.



Anderson v. Somberg
Decided April 29, 1975.

An action was brought against surgeon, hospital, manufacturer and supplier, for injuries sustained when, during course of back operation, the tip or cup of an angulated pituitary rongeur (forceps) broke off while tool was being manipulated in plaintiff's spinal canal and metal fragment was not retrieved necessitating subsequent surgical interventions. The Superior Court, Law Division, entered judgment in favor of all defendants, and plaintiff appealed. The Superior Court, Appellate Division, reversed and remanded for new trial, and petition for certification was granted. The Supreme Court, Pashman, J., held that since defendants had engaged in conduct which activated legal obligations by each of them to plaintiff, jury should have been instructed that failure of any defendant to prove his nonculpability would trigger liability and further that since at least one of defendants could not sustain his burden of proof of least one would be liable; and that where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to scope of surgery, such as cases where foreign objects are left in body of patient, those who had custody of patient and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment, can be called to account for their default, and they must prove their nonculpability or else risk liability for injuries suffered.Judgment affirmed and cause remanded for trial.



Samson v. Greenville Hosp. System (Three Cases)
Supreme Court of South Carolina.
Decided May 9, 1988.

Transfusion recipient brought action against blood center and hospital to recover for damages caused by transfusion of blood allegedly tainted with "AIDS (Acquired Immune Deficiency Syndrome)" virus. The United States District Court, Joseph F. Anderson, Jr., J., certified question to the South Carolina Supreme Court. The Supreme Court held that blood shield statute exempting providers of blood and blood products from implied warranty-based liability did not violate South Carolina's equal protection clause. Question answered.



Willey v. Ketterer
United States Court of Appeals, First Circuit.
Decided March 14, 1989

Medical malpractice action was brought on behalf of minor victim of cerebral palsy against hospital and obstetrician alleging negligence in delivery. Following jury trial, the United States District Court for the District of New Hampshire, Martin F. Loughlin, J., entered judgment on jury verdict in favor of defendants and denied victim's motion for new trial. Plaintiffs appealed. The Court of Appeals, Bailey Aldrich, Senior Circuit Judge, held that introduction of evidence concerning febrile seizures suffered by cerebral palsy victim's sister, as well as evidence of uncle's Down's syndrome, was reversible error where defense counsel did not link either condition to cerebral palsy so as to show genetic predisposition as promised. Reversed. New trial ordered.



Alfonso v. Lund
4 Fed.R.Serv.3d 1143
United States Court of Appeals, Tenth Circuit.
Feb. 10, 1986.

Patient filed diversity action against surgeon alleging that he had suffered permanent disability and disfigurement to his hand due to medical malpractice. The United States District Court for the District of New Mexico, Santiago E. Campos, J., entered a directed verdict in favor of physician, and patient appealed. The Court of Appeals, Holloway, Chief Judge, held that: (1) under New Mexico law, in view of expert testimony indicating that there was only a possibility, not a probability, of successful reattachment of severed fingers within 12 hours of chain saw accident, patient could not recover from surgeon for his disability and disfigurement under theory that surgeon was negligent in opting for closure of finger joints rather than reimplantation of severed fingers, and (2) under New Mexico law, liability in a medical malpractice case would likely not be predicated on "lost chance" theory that physician's negligence increased likelihood of harm to patient. Affirmed.



FERRARA v. GALLUCHIO
71 A.L.R.2d 331
Court of Appeals of New York
June 25, 1958.

Malpractice action against physicians. The Supreme Court, Trial Term, Bronx County, Abraham N. Geller, J., rendered judgment on jury verdict for plaintiff and defendants appealed. The Supreme Court, Appellate Division, First Judicial Department, May 8, 1957, 3 A.D.2d 829, 161 N.Y.S.2d 832, unanimously affirmed, and an appeal was taken by permission of the Court of Appeals. The Court of Appeals, Conway, C. J., held that where patient who went to dermatologist for treatment of X-ray burns sustained in course of therapy administered by defendant physicians was informed by dermatologist that she must have tissue examined every six months as cancer might develop, and, as a result of such statement, she developed severe cancerophobia, she was entitled to recover for such mental anguish in her successful malpractice action against defendant physicians. Affirmed. Froessel, Van Voorhis and Burke, JJ., dissented in part.



Siemieniec v. Lutheran Gen. Hosp.
56 USLW 2122
Supreme Court of Illinois. Aug. 17, 1987.

Parents of child who was born with hemophilia brought action individually and on behalf of child against hospitals and physicians. The Circuit Court, Cook County, Alan E. Morrill, J., denied hospitals' and physicians' motions to dismiss complaint but certified questions for review. The Appellate Court, Hartman, J., 134 Ill.App.3d 823, 89 Ill.Dec. 484, 480 N.E.2d 1227, affirmed in part, reversed in part, and remanded, and hospitals and physicians appealed. The Supreme Court, Ryan, J., held that: (1) child had no cause of action on his behalf for extraordinary medical expenses he expected to incur during his majority; (2) parents had cause of action for extraordinary medical expenses and other expenses involved in caring for hemophiliac child during his minority; and (3) parents had no cause of action for negligent infliction of emotional distress. Affirmed in part, reversed in part and remanded.



C.S. v. Nielson
Supreme Court of Utah
Dec. 6, 1988.

Mother who gave birth to normal and healthy child brought action against physician claiming negligence in not informing her that sterilization procedure was not "absolute in nature" and that alternative sterilization procedures were available with varying success rates. The United States District Court for the District of Utah, David Sam, J., certified questions of whether claim for "wrongful pregnancy" resulting in birth of normal, healthy child as result of unsuccessful sterilization procedure performed by physician gave rise to tort claim for damages under state laws, and if tort claim for "wrongful pregnancy" was recognized, what was appropriate measure of damages. The Supreme Court, Hall, C.J., held that: (1) mother's suit was correctly viewed as "wrongful pregnancy" cause of action; (2) action based on wrongful pregnancy was valid cause of action; (3) recoverable damages included any medical and hospital expenses incurred as result of physician's negligence, physical and mental pain and damages suffered by mother, wages necessarily lost by mother and/or father, and punitive damages, if applicable; and (4) projected cost of rearing normal, healthy child could not be recovered. Questions answered.



Herman by Warshafsky v. Milwaukee Children's Hosp.
Court of Appeals of Wisconsin
Opinion Filed Nov. 19, 1984. Review Denied.

The Circuit Court, Milwaukee County, Laurence C. Gram, Jr., J., awarded more than $3,000,000 to patient and her parents for injuries sustained as result of negligent medical treatment, and cross appeals were taken. The Court of Appeals, Sullivan, J., held that: (1) evidence supported findings that hospital, acting through its employees, was negligent in the care and treatment of patient, that such negligence was a cause of her injuries, and that certain doctors were not negligent in their care and treatment of patient; (2) award of $2,600,000, for past and future pain, suffering and disability to patient who was intellectually and physically impaired as result of negligent treatment was not supported by the evidence and therefore was excessive; thus, reviewing court would reduce the award to $925,000 and grant patient the option of accepting that sum or having a new trial on issue of damages; and (3) Wisconsin Patients Compensation Fund was responsible for costs and interest awarded to a party whose claims agaginst health care provider resulted in a judgment in excess of statutory limits on health care provider's liability. Affirmed in part, reversed in part, and modified in part.



Boody v. U.S.
United States District Court, D. Kansas
Feb. 23, 1989. As Corrected Feb. 27, 1989

Husband sued United States under Federal Tort Claims Act alleging negligence by Air Force base hospital personnel in connection with the death of his wife. The District Court, Theis, J., held that: (1) physician was negligent in failing to note atelectasis in review of decedent's lateral chest x-ray; (2) plaintiff was not entitled to recover for decedent's lost future wages; and (3) plaintiff's damages would be calculated by multiplying the total value of the decedent's life by the percentage of life lost due to physician's negligence. Judgment for plaintiff.



Ostrowski v. Azzara
Supreme Court of New Jersey
Decided Aug. 11, 1988.

Diabetic, cigarette-smoking patient brought medical malpractice action against physician for allegedly performing improper removal of toenail. The Superior Court, Law Division, disallowed any recovery, and patient appealed. The Superior Court, Appellate Division, affirmed, and certification to review was granted. The Supreme Court, O'Hern, J., held that: (1) posttreatment conduct of patient may be submitted to jury on question of whether mitigation or apportionment of damages can be expressed in terms of patient's fault, but patient's fault will not be a bar to recovery except to extent that her fault caused damages; (2) trial court's instructions failed to distinguish between preoperative and postoperative conduct which could serve only to mitigate her damages as opposed to conduct which could serve to avoid any recovery; and (3) trial court's instruction improperly permitted jury to bar patient entirely from recovery of damages that were attributable to physician. Reversed and remanded.



Lilly v. Fieldstone
United States Court of Appeals, Tenth Circuit
June 5, 1989. As Amended July 11, 1989

In medical malpractice action, patient appealed from order of the United States District Court for the District of Kansas, Dale E. Saffels, J., allowing substitution of the United States for defendant physician. The Court of Appeals, McKay, Circuit Judge, held that civilian consultant called upon to perform emergency surgery at Army hospital was an independent contractor, rather than an "employee of the government" as required to allow substitution. Reversed and remanded.


 

BING v. THUNIG
Court of Appeals of New York.
May 16, 1957

Action against hospital and others for injuries sustained by patient when burned during course of operation. The Supreme Court, Kings County, J. Vincent Keogh, J., entered judgment upon a verdict for plaintiff, and defendant appealed. The Supreme Court, Appellate Division, 1 A.D.2d 887, 149 N.Y.S.2d 358, reversed, and plaintiff appealed. The Court of Appeals, Fuld, J., held (click here for complete case) that hospital is liable to patient for injuries sustained through negligence of hospital employees acting within scope of employment, and that doctrine according hospital immunity for the negligence of its employees is abandoned. Judgment of Appellate Division reversed and new trial granted.



Panaro v. Electrolux Corp.
Supreme Court of Connecticut. Decided Aug. 16, 1988.

Employee brought malpractice action against company nurse alleging that nurse's failure to exercise reasonable professional care increased severity and risk of harm of stroke that employee suffered while at work. The Superior Court, judicial district of Stamford-Norwalk, Lewis, J., granted summary judgment for nurse. Employee appealed. The Supreme Court, Arthur H. Healey, J., held that Workers' Compensation Act exclusivity section, precluding employee from bringing suit against fellow employee, precluded malpractice suit against nurse. No error.



McCain v. Batson
Supreme Court of Montana.
Decided Aug. 18, 1988.

Injured person brought negligence action against physician. The 18th Judicial District Court, County of Gallatin, Joseph Gary, J., granted physician's motion for summary judgment out of the good samaritan statute, and injured person appealed. The Supreme Court, Harrison, J. held that: (1) good samaritan statute applied to treatment rendered in early hours of morning by physician with limited medical supplies available to victim who had suffered puncture wound, and (2) physician's treatment, including suture of the wound, did not amount to gross negligence or willful or wanton acts. Affirmed.



Kearns v. Superior Court (Von Rader)
Court of Appeal, Second District, Division 3, California
Oct. 3, 1988. As Modified Oct. 14 and Oct. 18, 1988. Review Denied Dec. 21, 1988

Patient brought malpractice action against physicians. Following denial of motion for summary judgment, one physician sought writ of mandate. The Court of Appeal held that physician who happened to be in hospital treating his own patients when another surgeon requested assistance during the course of operation on patient and who provided that assistance was rendering assistance in "emergency" for purposes of Good Samaritan law. Writ issued.



Weil v. Seltzer
28 Fed. R. Evid. Serv. 180
United States Court of Appeals, District of Columbia Circuit. Argued Dec. 8, 1988. Decided April 28, 1989. As Amended April 28, 1989. Rehearing and Rehearing En Banc Denied July 12, 1989.

Physician's estate appealed from judgment of the United States District Court for the District of Columbia, June L. Green, J., entered on jury verdict in wrongful death and survival actions. The Court of Appeals, Floyd R. Gibson, Senior Circuit Judge, held that: (1) trial court properly granted new trial following original jury verdict in favor of physician where court determined that it had improperly instructed on contributory negligence; (2) patient was not contributorily negligent in following physician's instructions to take medication or in failing to discover that the medication was steroids rather than antihistamines as he was told by the physician; but (3) evidence that physician had prescribed steroids for other patients who were told that they were receiving decongestants or antihistamines was not admissible as evidence of habit; and (4) damages for wrongful death could not include loss of passive income. Vacated and remanded.



RAY v. WAGNER
49 A.L.R.3d 497
Supreme Court of Minnesota. March 20, 1970.

Medical malpractice suit by patient against physician. The District Court of Hennepin County, Stanley D. Kane, J., rendered judgment for the physician and the patient appealed. The Supreme Court, Otis, J., held that whether patient was contributorily negligent by giving physician incomplete and misleading information about her employment status, by maintaining no telephone where she lived and by failing to inquire about results of test so that physician was unable to contact her to notify her that test results showed possibility of cancer was question for jury. Affirmed.



U. S. v. Kubrick
62 L.Ed.2d 259
Supreme Court of the United States Argued Oct. 3, 1979. Decided Nov. 28, 1979

A veteran brought suit under the Federal Tort Claims Act to recover for a hearing loss allegedly occasioned by medical malpractice in a Veterans Administration hospital. A judgment for the veteran, 435 F.Supp. 166, was affirmed by the Court of Appeals, Third Circuit, 581 F.2d 1092. On writ of certiorari, the Supreme Court, Mr. Justice White, held that: (1) "accrual" of a cause of action under the Act does not await plaintiff's awareness that injury was negligently inflicted, but, rather, plaintiff when armed with facts is not excused from failure to seek advice as to whether his legal rights have been invaded, and (2) where in January of 1969, a veteran who had been treated at a veteran's hospital for infection was aware of his injury, i. e., some loss of hearing, diagnosed as bilateral nerve deafness, and that probable cause of such injury was neomycin treatment administered at the hospital, the statute of limitations began then to run even if he had not yet been told that treatment was improper, and accrual was not delayed by reason of "technical complexity" of the case. Reversed.



Morgan v. Cohen
Court of Appeals of Maryland. April 7, 1987
Motion for Reconsideration Denied May 26, 1987

Parties injured in individual motor vehicle accidents brought medical malpractice action against physician who treated their injuries. The Circuit Court, Baltimore County, John F. Fader, II, J., and the Circuit Court, Baltimore City, Joseph I. Pines, J., granted summary judgments for physician, and injured parties appealed. Granting certiorari while cases were pending before the Court of Special Appeals, the Court of Appeals, Adkins, J., held that: (1) general release of original tort-feasor did not discharge physician as matter of law, but rather, release of physician depended upon intent of parties; (2) substantial issues of material fact existed as to whether parties intended to release physician, precluding summary judgment; and (3) substantial issue of material fact existed as to whether satisfaction of judgment against original tort-feasor intended to include damages for both original tort and subsequent tort based upon negligent treatment, precluding summary judgment. Reversed and remanded.



Morowitz v. Marvel
District of Columbia Court of Appeals
Argued Sept. 10, 1980. Decided Nov. 5, 1980

Physicians appealed from order entered by the Superior Court, District of Columbia, Norma Holloway Johnson, J., dismissing amended complaint alleging abuse of process, malicious prosecution, and professional negligence. The Court of Appeals, Pryor, J., held that: (1) physicians' injuries, alleged to have been sustained as result of medical malpractice counterclaim filed against them in suit against patient seeking monies for medical services rendered, of costs incident to litigation and "professional defamatory-type" damages were not actionable in malicious prosecution claim; (2) allegation of mere filing of medical malpractice counterclaim and subsequent withdrawal, without more, as proof that patient's attorney filed counterclaim with ulterior motive of coercing settlement did not show that process was, in fact, used to accomplish end not regularly or legally obtainable so as to support action for abuse of process; and (3) cause of action for professional negligence could not lie for physicians against adverse counsel for filing of medical malpractice claim. Affirmed.



Thompson v. Carter
56 USLW 2278
Supreme Court of Mississippi.
Oct. 7, 1987.

Patient brought medical malpractice action following alleged severe allergic response to prescribed drug. The Circuit Court, Harrison County, Kosta N. Vlahos, J., directed verdict for physician and patient appealed. The Supreme Court, Prather, J., held that: (1) drug package insert, properly identified, was admissible under hearsay exception; (2) expert witness in fields of pharmacology and toxicology should have been allowed to testify concerning medical standard of care with respect to use and administration of drug in question; and (3) exclusion of that evidence warranted new trial. Reversed and remanded for new trial.



TRESEMER v. BARKE
150 Cal.Rptr. 384
Court of Appeal, Second District, Division 5, California.
Nov. 22, 1978.

The trial court granted a physician's motion for summary judgment in an action brought by a patient for damages allegedly sustained from insertion of a Dalkon Shield intrauterine device, on the grounds that the action was barred by the time limitations contained in Code Civ. Proc., 340.5, providing that the statute of limitations is four years after the date of injury or one year after plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever, first occurs, and in Code Civ. Proc., 340, subd. 3, providing a one-year statute of limitations for personal injury actions based upon allegations of wilful misconduct, that the action was without merit; and that plaintiff had presented no triable issue of fact. Plaintiff's complaint had been filed on April 12, 1976. Although the insertion of the Dalkon Shield was done in August of 1972, plaintiff's complaint alleged that she did not discover the cause of her injury until May 5, 1975, and that her failure to make an earlier discovery was reasonable and not through lack of due diligence. (Superior Court of Los Angeles County No. C157394, Alfred L. Margolis, Judge).
The Court of Appeal reversed. The court held that the word 'injury' in Code Civ. Proc., 340.5, to denote the start of the three-year limitations period, clearly referred to the damaging effect of the alleged wrongful act and not to the act itself and that the one-year period of limitation under 340.5 commences not merely upon discovery of the harm caused by the alleged wrongful act but requires also discovery of the malpractice. Thus the trial court erred in granting summary judgment on the basis that the statute of limitations under 340.5 barred the action, plaintiff alleging that she had not discovered the cause of her injuries until May 5, 1975, and could not have with due diligence made such discovery before. The court also held that it was error to grant defendant's motion for summary judgment on the basis that the action was barred by the one-year statute of limitations of Code Civ. Proc., 340, subd. 3, under which the limitations period commences to run when plaintiff discovers the injury and its negligent cause or through the exercise of reasonable diligence should have discovered it. The court further held that defendant's affidavit was sufficient to negate any charge that his conduct was either wilfully or negligently wrongful when in 1972 he inserted the intrauterine device. He had declared in his affidavit that the shield was one of the most popular and acceptable intrauterine devices on the market, that he had inserted the device 'without incident,' thereafter providing plaintiff with a copy of the manufacturer's 'package insert' describing the shield and potential problems and complications. He had also set forth his credentials in obstetrics and gynecology and declared that his conduct was within the standard of practice in the community. The court further held that plaintiff's complaint stated a cause of action for malpractice and for common negligence where it alleged that defendant breached his duty to warn her of the dangerous effects of the Dalkon Shield when, subsequent to its insertion, he obtained actual knowledge of its hazards. (Opinion by Stephens, Acting P. J., with Ashby and Hastings, JJ., concurring.)



Ashman v. SK & F Lab Co.
United States District Court, N.D. Illinois, Eastern Division.
Dec. 23, 1988.

Patient paralyzed by allegedly negligently performed lumbar puncture procedure brought products liability action against, inter alia, drug manufacturer. On manufacturer's motion for summary judgment, the District Court, Hart, J., held that: (1) patient's injury was not foreseeable result of purported failure to warn of drug's interactive propensities, and (2) manufacturer was not liable for failure to warn, in that prescribing physician was informed and learned intermediary. Motion granted.



Anderson v. Somberg
Supreme Court of New Jersey.
Decided April 29, 1975.

An action was brought against surgeon, hospital, manufacturer and supplier, for injuries sustained when, during course of back operation, the tip or cup of an angulated pituitary rongeur (forceps) broke off while tool was being manipulated in plaintiff's spinal canal and metal fragment was not retrieved necessitating subsequent surgical interventions. The Superior Court, Law Division, entered judgment in favor of all defendants, and plaintiff appealed. The Superior Court, Appellate Division, reversed and remanded for new trial, 134 N.J.Super. 1, 338 A.2d 35, and petition for certification was granted. The Supreme Court, Pashman, J., held that since defendants had engaged in conduct which activated legal obligations by each of them to plaintiff, jury should have been instructed that failure of any defendant to prove his nonculpability would trigger liability and further that since at least one of defendants could not sustain his burden of proof of least one would be liable; and that where an unconscious or helpless patient suffers an admitted mishap not reasonably foreseeable and unrelated to scope of surgery, such as cases where foreign objects are left in body of patient, those who had custody of patient and who owed him a duty of care as to medical treatment, or not to furnish a defective instrument for use in such treatment, can be called to account for their default, and they must prove their nonculpability or else risk liability for injuries suffered. Judgment affirmed and cause remanded for trial.



Sullivan v. O'Connor
Supreme Judicial Court of Massachusetts, Suffolk.
99 A.L.R.3d 294
Decided May 9, 1973.

Professional entertainer filed two-count declaration against plastic surgeon seeking to recover for breach of contract in respect to operation on plaintiff's nose and for malpractice. The Superior Court, Brogna, J., rendered judgment for plaintiff, and exceptions were taken. The Supreme Judicial Court, Kaplan, J., held that as damages for surgeon's breach of contract to perform two plastic surgery operations on professional entertainer's nose and to thereby enhance her beauty and improve her appearance entertainer was not confined to recovery of out-of-pocket expenditures but was entitled to recover for worsening of her condition, which involved a mental ailment, and for pain and suffering and mental distress involved in a third operation; in absence of claim for pain and suffering connected with first two operations contemplated by agreement or the whole difference in value between present and promised condition, aforementioned elements were compensable on either an expectancy or reliance basis. Plaintiff's exceptions waived; defendant's exceptions overruled.



Murray v. University of Pennsylvania Hosp.
Superior Court of Pennsylvania.
Argued March 13, 1984.

Patient and her husband brought action against doctor and hospital seeking recovery for damages arising out of express warranty given in connection with a tubal ligation. The jury returned a verdict in favor of plaintiffs, but the Court of Common Pleas, Civil Division, Philadelphia County, No. 910 August Term, 1976, Lord, J., granted defendants' motion for new trial, and plaintiffs appealed. The Superior Court, Nos. 2899, 2968 Philadelphia, 1982, Wieand, J., held that: (1) plaintiffs proved a valid enforceable cause of action for defendants' breach of contract, and thus defendants were not entitled to judgment n.o.v.; (2) trial court properly concluded that authorization for surgery was not intended to be entire agreement between the parties, and thus parol evidence was admissible to show existence of oral agreement to guaranty prevention of future pregnancies; and (3) remand was necessary so trial court could consider additional issues raised in defendants' motion for new trial. Remanded.



STEWART v. RUDNER
Supreme Court of Michigan.
Sept. 4, 1957.

Action by woman whose child was stillborn against one physician for failure to perform Caesarean section as agreed and for damages resulting from allegedly unauthorized operation performed by another physician, and against both physicians for assault and battery. The Circuit Court, County of Genesee, Philip Elliott, C. J., dismissed action for operation performed and for assault and battery, and rendered judgment for woman for failure to perform Caesarean, and physicians appealed. The Supreme Court, Smith, J., held that evidence sustained finding that baby would have lived had operation been performed as agreed, and that woman was entitled to recover for pain and suffering and loss of wages directly resulting from physician's failure to perform contractual obligations. Affirmed.



Chew v. Paul D. Meyer, M.D., P.A.
Court of Special Appeals of Maryland.
July 10, 1987.

Patient brought suit against his physician claiming that his employer fired him, for an unexcused or unexplained absence from work, because the physician, after undertaking to send to the employer a document that would explain and excuse patient's absence from work, failed to do so in a timely manner. The Circuit Court for Baltimore City, Thomas Ward, J., granted physician's motion to dismiss and motion for summary judgment as to five of the six counts of the complaint, and patient appealed. The Court of Special Appeals, Bloom, J., held that: (1) employee's loss of his job was not a "medical injury," within Health Claim Arbitration Act, as would require claim to be filed within Health Claims Arbitration Office, and (2) physician had duty to act reasonably in completing and submitting to patient's employer a document that would explain and excuse patient's absence from work. Reversed and remanded.



Simcuski v. Saeli
Court of Appeals of New York.
May 4, 1978.

Action was brought by patient claiming that physician negligently severed nerve during operation and fraudulently concealed her condition. The Supreme Court, Onondaga County, George G. Inglehart, J., denied physician's motion to dismiss, and physician appealed. The Supreme Court, Appellate Division, 57 A.D.2d 711, 395 N.Y.S.2d 776, reversed and dismissed complaint, and patient appealed. The Court of Appeals, Jones, J., held that: (1) complaint set forth cause of action based on intentional fraud as well as cause of action in negligence for medical malpractice; (2) because of physician's alleged subsequent intentional concealment of malpractice and misrepresentation as to its cure, time within which negligence action could be brought was not limited to then applicable three-year statute of limitations; (3) it could not be said that action was not commenced within reasonable time after discovery of malpractice, and (4) limitations period applicable to claim for damages based on intentional fraud was six-year statute. Order of Appellate Division reversed and Supreme Court's order reinstated.
 


Millsaps v. Bankers Life Co.
Appellate Court of Illinois, Second District, Second Division.
Feb. 10, 1976.

Plaintiff life insurance applicant appealed an order of the Circuit Court, 16th Judicial Circuit, Kane County, John A. Krause, J., dismissing several counts of his second amended civil complaint against a physician, a credit company, and a life insurance company. The Appellate Court, Rechenmacher, J., held that two of plaintiff's counts charging libel were barred by the statute of limitations; that the affirmative defense of privilege could be asserted by defendants by way of motion to dismiss; that an allegedly libelous letter supplied by plaintiff physician to the insurance company regarding plaintiff's medical history was conditionally privileged; that the insurer's forwarding of a code number to a centralized medical information bureau came within the privilege doctrine; that certain counts sounding in libel were legally insufficient for reason of plaintiff's failure to allege facts showing actual malice, negligence, or other proper ground of liability; and that the trial court properly dismissed the counts alleging tortious interference with contract. Affirmed.



BUNDREN v. LOS ROBLES REGIONAL MEDICAL CENTER
193 Cal.Rptr. 671
Court of Appeal, Second District, California.
Aug 8, 1983.

A woman who had brought suit against a medical center based on its debt collection practices while she was still hospitalized petitioned the Court of Appeal for a writ of mandate after the trial court granted defendant's motion for partial summary judgment with respect to her cause of action for intentional infliction of emotional distress. At issue was a telephone call from defendant's business office on the day after plaintiff had undergone surgery in which she was questioned in a concededly rude manner for 20 to 30 minutes about how she would pay her bill.
The Court of Appeal issued a peremptory writ of mandate commanding the trial court to vacate the order at issue and to enter a new order denying defendant's motion for partial summary judgment. The court held that the trial court erred in granting the motion, since plaintiff presented evidence raising questions of fact as to whether defendant's agent acted in an unreasonable and outrageous manner, acted in reckless disregard of plaintiff's physical condition, or abused the special relationship that exists between hospital and patient. The court further held that, in light of the agent's apparent position of power to affect plaintiff's recovery, it was arguably reasonable for her to fear that failure to make immediate arrangements for payment would result in her eviction from the facility. Since plaintiff claimed to be feeling the effects of surgery when the telephone call at issue occurred, the court also held a trier of fact might well conclude that she was in all probability vulnerable. Thus, the court held there was a question as to whether defendant's method of seeking payment, perhaps reasonable had it been attempted after plaintiff had regained her health, was in fact reasonable in light of her alleged delicate physical and emotional state at the time at issue. (Opinion by Stone, P. J., with Gilbert and Abbe, JJ., concurring.)



Humphers v. First Interstate Bank of Oregon
53 USLW 2491
Supreme Court of Oregon, In Banc.
Decided March 6, 1985.

Mother who had given up her daughter for adoption just after her birth brought action against physician who had delivered daughter, seeking damages for physician's conduct in subsequently helping to reveal mother's identity to daughter. The Circuit Court, Multnomah County, Charles S. Crookham, J., dismissed complaint, and the Court of Appeals, 68 Or.App. 573, 684 P.2d 581, affirmed in part and reversed in part. On review, the Supreme Court, Linde, J., held that: (1) mother had no cause of action against physician under invasion of privacy theory, but (2) mother had cognizable cause of action against physician for breach of confidential relationship. Affirmed in part, reversed in part, and remanded.



Ascher v. Gutierrez
United States Court of Appeals, District of Columbia Circuit.
Decided March 26, 1976.

Malpractice action was brought against anesthesiologist by patient who, following an injection of sodium pentothal, developed laryngospasm and sustained severe brain damage. The United States District Court for the District of Columbia, Howard F. Corcoran, J., entered judgment in favor of plaintiff, and defendant appealed. The Court of Appeals, Bryan, District Judge, held that the admission in evidence of hospital records was proper, despite contradictory evidence tending to refute their contents, and their substantive contents warranted jury finding that second anesthesiologist was not in operating room "replacing" defendant when defendant left and that, consequently, defendant abandoned his patient; and that sufficient proof of causation was introduced, including proof that plaintiff was not intubated, the remedy that finally relieved the emergency, until as late as 1:45, that defendant had left the operating room at 1:30, a time when plaintiff was still in extremis, and that defendant was not replaced by an equally qualified physician when he left. Affirmed.

 

Strachan v. John F. Kennedy Memorial Hosp.
Supreme Court of New Jersey.
Decided March 16, 1988.

Parents of suicide victim brought action alleging that hospital, its administrator, and several doctors had committed tort of outrage, and were responsible for inappropriate handling of dead body. The Superior Court, Law Division, Camden County, entered judgment for parents, and appeal was taken. The Superior Court, Appellate Division, 209 N.J.Super. 300, 507 A.2d 718, reversed and remanded. On appeal as of right, the Supreme Court, Clifford, J., held that: (1) duty of hospital to parents of suicide victim was not to have in place procedures for removal of their son from life support systems or to release to parents their son's dead body, but rather, to act reasonably honoring their legitimate request to turn over their son's dead body; (2) evidence supported jury's conclusion that defendants had negligently withheld body of suicide victim from his parents; and (3) parents were not required to prove physical injury to recover emotional distress damages. Affirmed in part, reversed in part.



Burgess v. Perdue
Supreme Court of Kansas.
June 13, 1986.

Mother, individually and as heir-at-law of son, brought action against State for the outrageous and negligent act of son's treating physician at State Neurological Institute and against another physician for negligent infliction of emotional distress. The District Court, Shawnee County, E. Newton Vickers, J., entered summary judgment in favor of State and other physician, and mother appealed. The Supreme Court, Lockett, J., held that: (1) statement by treating physician to mother that State Neurological Institute had "son's brain in a jar" was not so extreme and outrageous as to subject State to liability; (2) other physician, who negligently informed county coroner that mother had consented to a full autopsy on son's body when mother had in fact agreed only to a partial autopsy which would not include son's brain, was not liable to mother for emotional distress for interfering with son's dead body; and (3) other physician, who failed to properly inform county coroner that mother did not wish autopsy to include son's brain, after voluntarily assuming duty to properly inform coroner, was liable for reasonable costs of exhuming son's dead body in order to bury the brain with the body. Affirmed.