Medical Malpratice vs. Ordinary Negligence

  • Read more: Psychiatrists’ Liability for Patient’s Violence Against Other People: Washington Supreme Court Abolishes the Inpatient-Outpatient Distinction
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    Psychiatrists’ Liability for Patient’s Violence Against Other People: Washington Supreme Court Abolishes the Inpatient-Outpatient Distinction

    By Alex Stein In a recent decision, Volk v. DeMeerleer, 386 P.3d 254 (Wash. 2016), the Washington Supreme Court relaxed the “control” prerequisite for psychiatrists’ duty to protect third parties against violent patients. The Court made this decision in a case involving a psychiatric patient who murdered his girlfriend and her nine-year old son and then committed suicide (after…

  • Read more: CAVEAT HOSPITIA: Suits Alleging Negligent Credentialing Against Hospitals Get Exemption from Tort Reform
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    CAVEAT HOSPITIA: Suits Alleging Negligent Credentialing Against Hospitals Get Exemption from Tort Reform

    By Alex Stein Policymakers and scholars interested in medical malpractice and torts generally should read Billeaudeau v. Opelousas General Hospital Authority, — So.3d —-, 2016 WL 6123862 (La. 2016). In this recent and important decision, the Louisiana Supreme Court ruled that suits alleging negligent credentialing against a hospital sound in regular negligence, rather than medical malpractice,…

  • Read more: Patient Safety in the NHS: The Culture Change Agents
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    Patient Safety in the NHS: The Culture Change Agents

    By John Tingle and Jen Minford  It is important to take a broad holistic approach when looking at patient safety policy development and practice in the NHS. There cannot be a one size fits all approach and a number of possibly quite disparate organisations and stakeholders in the NHS and beyond must be consulted and…

  • Read more: Improving the safety of maternity care in the National Health Service (NHS) and other medico-legal matters
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    Improving the safety of maternity care in the National Health Service (NHS) and other medico-legal matters

    By John Tingle There are some very interesting Government patient safety and access to justice policy development activities currently going on in England. Maternity Services In maternity services, there is a clear recognition by Government that safety is inconsistent and that there is significant scope for improvement. Our still birth rates are amongst the highest in…

  • Read more: Medical Malpractice vs. General Negligence under California Law
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    Medical Malpractice vs. General Negligence under California Law

    By Alex Stein In its recent decision, Flores v. Presbyterian Intercommunity Hosp., 369 P.3d 229 (Ca. 2016), the California Supreme Court has sharpened the critical distinction between “medical malpractice” and general negligence. Under California statute, a plaintiff’s ability to file a medical malpractice suit expires in one year after the accrual of the cause of action. The statute tolls…

  • Read more: Patient Fall: Medical Malpractice or General Tort?
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    Patient Fall: Medical Malpractice or General Tort?

    By Alex Stein Courts coalesce around the view that patient fall injuries are actionable only as medical malpractice except when the care provider acts with intent or malice. This approach gives providers of medical care all the protections that benefit defendants in medical malpractice cases (compulsory suit-screening panel procedure, merit certificate / affidavit as a prerequisite…

  • Read more: Products Liability or Medical Malpractice? The Definition of a “Healthcare Provider”
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    Products Liability or Medical Malpractice? The Definition of a “Healthcare Provider”

    By Alex Stein Every defendant in a suit for medically inflicted injuries wants to be a “healthcare provider.” This status entitles the defendant to categorize the suit as “medical malpractice” and become eligible to special litigation advantages, which include shortened limitations and repose periods, dismissal of suits not verified by experts, and statutory caps on damages….

  • Read more: Actions for Sexual Assault Incidental to Medical Treatment Placed Outside the Scope of Medical Liability
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    Actions for Sexual Assault Incidental to Medical Treatment Placed Outside the Scope of Medical Liability

    By Alex Stein Ex parte Vanderwall, — So.3d —- 2015 WL 5725153 (Ala. 2015), is a new important decision that defined “medical malpractice” to identify suits adjudicated under special defendant-friendly rules. As I explained here, here, here, here, here, here, here, and in a foundational article on the subject, categorizing a suit as sounding in “medical malpractice”—as opposed to “ordinary negligence,” “assault” or “battery”—determines…

  • Read more: “Medical Malpractice or Ordinary Negligence?” in the Context of Psychiatric Treatment
    Article

    “Medical Malpractice or Ordinary Negligence?” in the Context of Psychiatric Treatment

    By Alex Stein “Medical Malpractice or Ordinary Negligence?” is an issue that will stay on the courts’ agenda for long. See here, here, here, here, here, here, and here. As I explained in these posts and in a foundational article on medical malpractice, categorizing a plaintiff’s action as “medical malpractice” rather than “ordinary negligence” determines whether it must satisfy rigid…

  • 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…