Liability

  • Read more: The “Common Knowledge” Exception to the Expert Requirement in Medical Malpractice Actions under FTCA Categorized as “Substantive”
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    The “Common Knowledge” Exception to the Expert Requirement in Medical Malpractice Actions under FTCA Categorized as “Substantive”

    By Alex Stein All expert requirements for medical malpractice actions (including merit certificates and affidavits) are categorized as “substantive” rather than “procedural” under both Erie (in diversity suits) and the Federal Tort Claims Act (FTCA). See here and here. The Fifth Circuit recently ruled in connection with a medical malpractice suit filed under FTCA that the…

  • Read more: Malpractice at the Front Desk
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    Malpractice at the Front Desk

    By Alex Stein Georgia’s Court of Appeals recently categorized a clinic’s front-desk person’s failure to communicate a patient’s complaints to the doctors as ordinary negligence rather than medical malpractice. Wong v. Chappell, 773 S.E.2d 496 (Ga.App. 2015). This categorization has four important implications: First, it allows an aggrieved patient to file her suit and proceed to trial…

  • Read more: (UPDATED) Defendants’ Motion for Summary Judgment Granted in Looney v. Moore (SUPPORT trial lawsuit)
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    (UPDATED) Defendants’ Motion for Summary Judgment Granted in Looney v. Moore (SUPPORT trial lawsuit)

    By Michelle Meyer UPDATE: Plaintiffs have filed an appeal in the U.S. Court of Appeals for the Eleventh Circuit. Their brief is due on October 19. The district court has granted summary judgment (opinion pdf) for all remaining defendants as to all of plaintiffs’ remaining claims in Looney v. Moore, the lawsuit arising out of…

  • Read more: The Unintended Effect of Medicare on the Law of Torts
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    The Unintended Effect of Medicare on the Law of Torts

    By Alex Stein If you are familiar with about a thousand medical malpractice decisions and can’t think of an accident that might surprise you, read Stayton v. Delaware Health Corporation, — A.3d —- 2015 WL 3654325 (Del. 2015). Another reason for reading this new decision of the Delaware Supreme Court is that it has delivered an…

  • Read more: HIPAA and the Physician-Patient Privilege: Can Doctors Defending Against Medical Malpractice Suit Carry Out Ex Parte Interviews with the Plaintiff’s Treating Physicians?
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    HIPAA and the Physician-Patient Privilege: Can Doctors Defending Against Medical Malpractice Suit Carry Out Ex Parte Interviews with the Plaintiff’s Treating Physicians?

    By Alex Stein Whether a litigant’s right to conduct informal ex parte interviews with fact witnesses extends to the plaintiffs’ treating physicians, given the confidentiality provisions of the Health Insurance Portability and Accountability Act of 1996 (HIPAA), is a question of considerable practical importance. This question has recently received a positive answer from the Kentucky Supreme…

  • Read more: Reproductive Malpractice and the U.S. Military
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    Reproductive Malpractice and the U.S. Military

    By Alex Stein and Dov Fox Check out the new op-ed at HuffPo by Bill of Health bloggers Dov Fox and Alex Stein on the unfair treatment of American servicewomen (and their children) under the Feres doctrine should they fall victim to medical malpractice during their pregnancy or delivery. Fox and Stein call for SCOTUS to fix…

  • Read more: Proving Decision-Causation
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    Proving Decision-Causation

    By Alex Stein Proving decision-causation in a suit for informed-consent violation is never easy. Things get even worse when a trial judge misinterprets the criteria for determining – counterfactually – whether the patient would have agreed to the chosen treatment if she were to receive full information about its benefits, risks, and alternatives. The recent Tennessee…

  • Read more: Military Medical Malpractice in Baby Delivery and Prenatal Care
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    Military Medical Malpractice in Baby Delivery and Prenatal Care

    By Alex Stein When Congress enacted the Federal Tort Claims Act (FTCA) in 1946, it did not envisage that its formulation of the federal government’s liability will allow members of the military forces to sue the United States for service-related noncombatant injuries. The Supreme Court closed this gap in Feres v. United States, 340 U.S. 135…

  • Read more: Of Competence and Referrals: When a Doctor’s Failure to Refer a Patient to another Physician Constitutes Malpractice?
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    Of Competence and Referrals: When a Doctor’s Failure to Refer a Patient to another Physician Constitutes Malpractice?

    By Alex Stein Four days ago, the Supreme Court of South Dakota delivered an important decision on when a physician’s failure to refer a patient to another doctor constitutes malpractice. St. John v. Peterson, — N.W.2d —- (S.D. 2015), 2015 WL 3505401. This decision hides in the Court’s rulings on the admissibility of evidence, and so…

  • Read more: The Peer Review Privilege: No Exception for Objective Facts
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    The Peer Review Privilege: No Exception for Objective Facts

    By Alex Stein The Michigan Supreme Court’s recent decision in Krusac v. Covenant Medical Center, Inc., — N.W.2d —- (Mich. 2015), 2015 WL 1809371, foiled an attempt at establishing an “objective fact” exception to the peer review privilege.  An elderly hospital patient allegedly rolled off the operating table, fell on the floor, and died shortly thereafter. As part…