Articles Posted in Medical Negligence

The Tennessee Department of Commerce and Insurance has released the "2006 Tennessee Medical Malpractice Claims Report"" which, in fact, is based on 2005 data.  Read the entire report here.

Some highlights:

*  There were  5 – that’s right – 5 – claims were resolved by judgment for the plaintiff in the entire state.  There were 6 verdicts for the plaintiff in 2004.

The Georgia Supreme Court was confronted with this question:  "In what circumstances, if any, is evidence of a nurse’s failure to pass a licensing  examination admissible in a medical malpractice action against the employing physician?"

Plaintiffs’ son Luke was diagnosed with bacterial meningitis resulting in brain damage and quadriplegia. Plaintiffs claimed that Luke’s pediatrician and his employees should have picked up on the symptoms given the information provided in a series of contacts.   Plaintiffs  introduced expert testimony that the pediatrician, Dr. Basilio, violated the standard of care by permitting an unlicensed nurse to answer weekend calls and give advice without consulting a supervising physician. To support that  testimony, the Sniders showed that Nurse DeVera was not licensed. However, the trial court did not allow the Sniders to show that Ms. DeVera failed to pass the nursing board examination.

The Georgia Supreme Court agreed.  It said as follows:  "Simply put, the issue in this case is not whether Ms. DeVera was generally competent, but whether Dr. Basilio breached the standard of care in hiring her because she was unlicensed. On this issue, the plaintiffs’ experts were able to testify that Dr. Basilio breached the standard of care by hiring an unlicensed nurse and allowing her to answer weekend calls without supervision. The fact that Ms. DeVera was unlicensed was key to resolving this issue. Why she was unlicensed was not."

Plaintiff received neck and spinal cord injuries in a motor vehicle accident.  He was taken to the local ER; the ER doctor thought he needed to be seen by a neurosurgeon.  The on-call neurosurgeon (Ebeling) said he was very tired and would not be coming to the hospital and recommended that Plaintiff be transferred to a trauma center.  Plaintiff was transferred and was determined to have developed C-7 paraplegia.

The ER doctor testified that Ebeling’s refusal to come in was the first time a doctor had refused to come to the ER because of fatigue. 

Plaintiff sued Ebeling (and others); Ebeling defended by saying that there was no physician-patient relationship between him and Plaintiff and that he was not negligent.

Do you remember   Kelley v. Middle Tennessee Emergency Physicians, P.C., 133 S.W.3d 587 (Tenn. 2004), when the defendant tried to claim that he owed no duty to the plaintiff because he was not the plaintiff’s regular doctor?   The defendant was called by the emergency room doctor and gave the doctor advice that allegedly turned out to be wrong.  The defendant said his advise was a "curbside opinion" and did not give rise to a duty of care to the patient.  The Tennessee Supreme Court respectfully disagreed and said an issue of fact existed on the subject.  (Note:  the Court also made it quite clear that they thought the defendant’s argument that  there was a mere "curbside consultation" based on the "undisputed facts" was a stretch – see text accompanying fn. 17 in the opinion).

Well, the nice folks in Mississippi just had a "sidewalk opinion" case.  The defendant doctor there said he did not owe a duty to the patient to give the patient’s treating physician the right advice when the treating physician called and sought and opinion before referring the patient to the defendant for treatment.  In Scafide v. Bazzone, NO. 2004-CA-01658-COA (Miss.Ct. App. 9/12/06) the Court held that the defendant did not have a duty.

The key language from the opinion:

Here is an unusual case out of California – a unique application of the "reasonable person test" when applying the causation standard in an informed consent case.

Wilson was paralyzed from spinal surgery for scoliosis, rendering him a paraplegic. He was wheelchair bound and needed to use his arms and shoulders to get in and out of the wheelchair.  Some five years ago Wilson had a stroke, and thereafter  developed adhesive capsulitis in his shoulder.  His doctor referred him to a chiropractor, who recommended manipulation under anesthesia.  Wilson asked his doctor questions about the risk associated with the procedure, and allegedly was told by his doctor  that the only risk was an infection secondary to an injection that was part of the procedure.  His doctor was present at the procedure performed by the chiropractor. Wilson suffered a fractured shoulder and a torn rotator cuff during the procedure. As a result, he had to undergo surgery to repair the damage.

Wilson sued the doctor, the chiropractor and others, saying that he never gave informed consent to the procedure.  The case went to trial against the doctor, but the trial judge dismissed this case on several grounds, including the failure of Wilson to prove causation in the informed case. 

Timothy Brown sued the United States  alleging that his daughter Melody developed spinal bifida as a result of a military doctor recommending to Deborah Brown (Melody’s mother and a member of the military) than she  (Deborah) stop taking prenatal vitamins during a critical period in his development in utero.  The vitamins contained folic acid, which the Tommy alleged  is intended solely to prevent  neural tube defects in a developing fetus. Neural tube defects can cause serious spinal cord and  brain injury during the first 28 days of gestation, after which the fetal neural tube closes. Deborah Brown sustained no physical injury whatever from the effects of the negligent prenatal treatment, from her pregnancy, or from Melody’s birth.

The United States moved to dismiss, alleging that it was immune from suit under Feres v. United States, 340 U.S. 135 (1950).  Feres held that  the government “is not liable under [the Act] for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”   Id. at 146.  Plaintiff argued that the  Feres  doctrine was inapplicable because Melody’s injury was not derivative of any injury to her mother but was, rather, the result of negligence affecting Melody directly(albeit in utero). 

The district court (Judge McCalla in Memphis) dismissed the case, saying the case was controlled by a prior decision of the Sixth Circuit in Irvin v. United States, 845 F.2d 126 (1988), which held that "the treatment accorded to a pregnant member of the military on active duty is inherently inseparable from that accorded to the fetus and that such a claim would therefore force a judge to  question the propriety of decisions or conduct of fellow members of the military."