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Tag Archives: Medical Malpractice

Civil Practice – Collateral Estoppel – Tort/Negligence – Medical Malpractice – Prescription Drug – Job Loss – Prior ADA Case (access required)

Wilkins v. Farah In a prior lawsuit between plaintiff and her former employer, this court determined that plaintiff’s use of the prescription drug Adderall did not lead to her termination. In the present lawsuit against the doctor who prescribed Adderall, plaintiff is collaterally estopped from claiming she lost her job because of the drug.

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Tort/Negligence – Post-Surgery Injury – Fall from Table – Res Ipsa Loquitur – Direct Proof – Medical Malpractice – Rule 9(j) Certification Required (access required)

Alston v. Granville Health System Once defendants offered direct proof of the cause of plaintiff’s decedent’s fall from an operating table – the failure of medical personnel to restrain her as she was regaining consciousness – the doctrine of res ipsa loquitur was no longer applicable. Defendants’ unrefuted forecast of evidence showed that the decision to restrain a patient under anesthesia is one that requires use of specialized skill and knowledge and is therefore considered a professional service.

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Medicaid Crisis (access required)

Medicaid Crisis

When the parents of a severely disabled girl in North Carolina settled a medical-malpractice case for $2.8 million, the state stepped in and tried to take a nearly $1 million cut for prior Medicaid payments. It was an ordinary request for reimbursement, but the girl’s parents – who face an estimated $40 million in future medical costs for their daughter – decided to contest the state’s lien. And two weeks ago the Fourth Circuit Court of Appeals ruled in their favor.

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Trusts & Estates – Civil Practice – Venue – Tort/Negligence – Medical Malpractice (access required)

Estate of Davis v. Groff As administrator of the decedent’s estate, plaintiff was entitled to bring suit in the county where he resides. This rule of law, which was set down by our Supreme Court in Trust Co. v. Finch, 232 N.C. 485, 61 S.E.2d 377 (1950), was not and could not be changed by this court’s holding in Roberts v. Adventure Holdings, LLC, 703 S.E.2d 784 (2010), disc. review denied, 365 N.C. 187, 707 S.E.2d 241 (2011). Furthermore, although Roberts held that a guardian ad litem’s residence was insufficient to justify venue, the court also explained that the law regarding administrators and other fiduciaries did not apply to GALs.

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Tort/Negligence – Medical Malpractice – Standard of Care – Proximate Cause – Civil Practice – Directed Verdict (access required)

Day v. Brant Even though plaintiffs’ proximate cause expert agreed on cross-examination that assigning percentages to a patient’s survival changes was “speculation”, the expert’s testimony as a whole was sufficient to get to the jury on the issue of proximate cause. We reverse the trial court’s grant of a directed verdict for defendants.

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Tort/Negligence – FTCA – Medical Malpractice – Remedies – California Law – Reversionary Trust (access required)

Cibula v. U.S. In this case in which a family won a multi-million dollar Federal Tort Claim Act award from the U.S. for their child’s brain damage caused by government doctors, the 4th Circuit remands the case for a second time for the Virginia federal district court to grant the government a reversionary interest in the child’s future care award under the controlling California law.

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Tort/Negligence – Medical Malpractice – Evidence – Expert Witness – Nurse Defendant – OB-GYN Witness (access required)

Creekmore v. Maryview Hospital Although an OB-GYN did not have an active practice in nursing, he performed postpartum monitoring of high-risk patients with preeclampsia and could testify as an expert in a med-mal suit alleging a nurse’s failure to monitor plaintiff led to her stroke and permanent brain damage, and the 4th Circuit upholds the $900,000 judgment for plaintiff.

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Tort/Negligence – Medical Malpractice – Personal Injury – Mental Suffering – Cancer Misdiagnosis (access required)

Harmon v. Eastern Dermatology & Pathology, P.A. Because defendant negligently switched biopsy samples, plaintiff was diagnosed with cancer and underwent unnecessary surgery. In her personal injury claim, plaintiff sought damages for mental, as well as physical, suffering. This was not the same as asserting a claim for negligent infliction of emotional distress. We affirm the judgment for plaintiff and the trial court’s denial of defendant’s post-trial motions.

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Tort/Negligence – Medical Malpractice – Standard of Care – Expert Witness – Complicated Procedure (access required)

Crocker v. Roethling An obstetrician from a large hospital in a large metropolitan area of Arizona was properly rejected as an expert witness when he would have testified that the defendant-doctor — in a much smaller hospital — should have performed a complicated procedure, which the witness had never performed himself nor seen performed. We affirm summary judgment for defendant.

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