3rd Party Doctor Can Be Held Liable in Med Mal Cases

The plaintiff Samuel Mejia filed a lawsuit against Quest Diagnostics and Dr. Simon Santos for allegedly failing to detect his late wife Tania’s cervical cancer. Quest Diagnostics, in turn, filed a third-party complaint against Tania’s doctor, Dr. Jacinto Fernandez.…law.com, How a 3rd-Party Doctor Can Be Held in Med Mal Cases in NJ, P.J. D’Annunzio, 2020

In his defense, Dr. Jacinto Fernandez argued that he should not be made a party to the liability trial considering that he was not sued by the plaintiff and an affidavit of merit was never served on him by any party.

He pointed the court’s attention to the Burt v. West Jersey Health Systems case in which defendants were dismissed for failure to timely serve an affidavit.

However, the court observed that in the said case, the defendants were “dismissed meritoriously” whereas in this case, Dr. Fernandez fails to present a meritorious right to dismissal. The court observed that “Third-party defendants are subject to the contribution claims filed against them by joint tortfeasors, unless there exists a right to a dismissal of the claims against them.”

The court, therefore, made Dr. Fernandez an active third-party defendant who must participate at trial.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Supreme Court Affirms Judgement Favoring Defendant Physician

In Kos v. Lawrence Mem’l Hosp. medical malpractice case, the plaintiffs, Laura Kos and Michael Kos, appeal following the trial court denying their motion to set aside the jury’s verdict in favor of the defendants Elisa Marie Girard and Physicians for Women’s Health, LLC…law.com, Kos v. Lawrence Mem’l Hosp. 2020

They argue that the trial court improperly instructed the jury by including a charge on the acceptable alternatives doctrine, and limiting their allegations regarding Girard’s breach of the standard of care. They also request that the court abolish the acceptable alternatives doctrine.

However, the Supreme Court, while concurring with the plaintiffs about the trial court’s incorrect instruction to the jury on the doctrine of acceptable alternatives, affirms the judgement of the trial court. It says that the error of instruction was harmless and also refuses to abolish the acceptable alternatives doctrine.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

When Does The Delayed Discovery Rule Apply?

The medical malpractice statute of limitations for filing a legal claim is three years from the date of the injury or one year from the date that the plaintiff learns that he or she has been injured or reasonably should have learned about the injury. However, the exception to it is the delayed discovery rule that applies to cases in which a person discovers the cause of his or her injury after a delay of some period after the incident…californiaaccidentattorneysblog, CA Courts Rule on Statute of Limitations in Medical Malpractice Claims, Steven Sweat, Mar, 20

Judith Brewer underwent a surgery on April 22, 2013, at Doctors Medical in Modesto, California. The morning after her surgery, Brewer suffered from paralysis and lost sensation in her arms and legs. Subsequent to that, Dr. Benjamin J. Remington saw Brewer on April 24, 2013. Instead of performing an emergency spinal decompression procedure, Remington chose to wait to until May 30, 2013, to allow the swelling to subside.

Brewer underwent the spinal decompression procedure on May 30, 2013 after which, she regained some sensation in her arms and a little in her legs. However, her paraplegia was permanent. Brewer and her husband filed a lawsuit on June 9, 2014, against Drs. Bedi and Pistel (the doctors who performed the first surgery), Doctors Medical, and Stanislaus Orthopedic and Sports Medicine Clinic for medical malpractice and loss of consortium because of the April 22, 2013, surgery. Upon requesting and receiving the medical records, they sent them to a neurosurgical expert named Dr. Brian Andrews who opined on July 20, 2015 that Dr. Remington should have performed the procedure as an emergency surgery on April 24, 2013 itself and not waited.

Acting on this opinion, the Brewers filed an amendment on July 24, 2015, to add Dr. Remington as a defendant. Submitting an argument, Remington put forth the following:

~The plaintiffs had added him as a defendant outside of the statute of limitations.
~Brewer knew or should have reasonably known about her injury on May 30, 2013, when she didn’t regain many functions following the second surgery.
~The statute of limitations for the claims against him ran out on June 9, 2014, meaning that the Brewers’ claims against him were time-barred.

The plaintiffs argued that the one-year statute of limitations only began to run when they knew or should have reasonably known that the delay of surgery caused a second injury to Brewer. Since the discovery was not produced by Doctors Medical until July 8, which was outside of the one year from the date of Brewer’s second injury, they argued that they did not know or have any reason to know that Dr. Remington had caused the second injury until after they had received Dr. Andrews’ expert opinion.

The court while initially granting the motion for summary judgment, corrected itself upon a review and agreed that it had committed a legal error and granted the Brewers’ motion.

In arriving at the decision, the court reviewed the statute of limitations for medical malpractice claims. It noted that the statute of limitations starts to run when the last element of the cause of action accrues. It observed that Brewer could not have reasonably discovered her second injury that was caused by Remington until she had received the expert’s opinion about Remington’s negligence in July 2015 and that unsatisfactory outcomes by themselves are not enough to give a plaintiff notice of a doctor’s negligence.

The court affirmed the lower court’s ruling and returned the case for further proceedings awarding the plaintiffs their legal costs on appeal.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

A Whopping $1.19 Million Jury Award For Delayed Diagnosis

Rebecca Wacker, the plaintiff, underwent an emergency surgery to cure her severe lower back pain and leg weakness. Post-surgery, her health deteriorated and she suffered injuries of permanent nature, which the suit claimed was a result of several hours of delay in her diagnosis…law.com, Delayed Diagnosis Claim Yields $1.19 Million Jury Award in Burlington, David Gialanella, Mar, 20

The defendants in the suit, the principle among them being, advanced practice nurse Jeffrey Magasiny of Emergency Physicians Associates, a contracted nurse who treated Wacker in the emergency room, contended that the diagnosis and result would have been no different had Wacker underwent surgery that morning instead.

After about three weeks of trial, the jury unanimously submitted that nurse Magasiny deviated from the standard of care and awarded damages amounting to $1.7 million for pain and suffering, and attributed the injury 70% to Magasiny and 30% to a preexisting condition, making net verdict $1.19 million.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

$500,000 Damages For Missed Melanoma

A jury in the Palm Beach Circuit Court has ruled that a pathologist from the West Palm Beach area was liable to pay $500,000 in damages after failing to detect melanoma (a cancer of the skin) in a patient…law.com, Patient Claims Pathologist Missed Melanoma Diagnosis, 2020

James Clyde, a resident of WPB, underwent a biopsy in June 2014 and the interpreting pathologist, Dr. Jefferson Morgan, concluded at the time that the results were negative. However, after 20 months, cancer was detected in the same area that had been tested in 2014. Subsequent to this, James Clyde sued the pathologist Morgan, alleging that he misread the biopsy back then and this had caused at least a 20-month treatment delay that could have otherwise saved him the mental and physical suffering and treatment expenses.

The defense, on its part had contended that the biopsy was appropriately read and that Clyde’s cancer was such that it was difficult to detect at the time. But the jury sided with Clyde and awarded damages of $500,000.

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD

Psychiatric Facility Not Liable for Sexual Assault On Counselor By Patient

The Pennsylvania Superior Court has ruled that a psychiatric facility is not liable for negligence for a sexual assault on one of its counselors by a patient…law.com, Psychiatric Facility Not Liable for Patient’s Sexual Assault of Counselor, Court Rules, P.J. D’Annunzio, 2020

Plaintiff Michelle Grabowski filed a negligence suit against the company, Carelink Community Support Services, on the basis that it was negligent and should be held liable under the Workers’ Compensation Act’s third-party attack and personal attack exceptions.

However, Grabowski has already been awarded $75,000 in workers’ compensation benefits and also received an additional $40,000 from the defendant as part of a compromise and release agreement. The court argued that while passive receipt of workers’ compensation benefits does not necessarily bar a negligence claim, “Where, however, there [is a] final adjudication in a workers’ compensation proceeding that the injury is covered by the WCA, the employee is stopped from claiming that the personal animus/third party attack exception applies.”

________________________

Kayur V. Patel, MD, MRO, FACP, FACPE, FACHE, FACEP
KayurVPatel@ExpertWitness.MD