Professional Malpractice

[08/27] Garcia v. Gomez
In plaintiff's suit against a hospital and a treating physician for the death of plaintiff's mother from a pulmonary embolism following surgery, court of appeals' affirmance of trial court's dismissal of the suit and denial of defendants' motion for attorney's fees is reversed and remanded where: 1) there is some evidence of reasonable attorney's fees and some evidence that the physician incurred attorney's fees; 2) section 74.351(b) mandates an award of attorney's fees and costs, when expert reports are not served timely.

[08/27] In re Columbia Valley Healthcare Sys. , LP
In plaintiffs' medical malpractice suit, defendant's petition for a writ of mandamus, challenging the trial court's denial of defendant's motion to disqualify plaintiffs' counsel because of its employment of a legal assistant, is conditionally granted as, because the legal assistant's employer did not take effective reasonable steps to shield the assistant from working on this case, and the assistant actually worked on the case at her employer's directive, disqualification is required and the trial court is directed to grant the defendant's motion to disqualify and recuse plaintiffs' counsel.

[08/26] Florida Bar v. Hall
In an attorney's disciplinary proceedings, arising from forgery and fraudulent recording of a lease agreement and agreement for sale between the attorney and property owners, a referee's recommendation of a ninety-day suspension is approved in part and disapproved in part where: 1) referee's finding of fact, recommendations of guilt, and award of costs are affirmed; 2) referee's reliance on Standard 7.0 is disapproved and instead Standard 5.0 should be applied; and 3) referee's recommendation of a ninety-day suspension is unsupported, as after considering the factual findings, the totality of misconduct, case law, and the Standards, disbarment is the appropriate sanction.

[08/25] Giacometti v. Aulla, LLC
In employees' suit for professional negligence against an accounting firm, claiming that the firm negligently or fraudulently over-reported income on their W-2 forms by including tip money taken by the restaurant managers as income to the employees, trial court's order sustaining the demurrer to the employees' second amended complaint against the firm for professional negligence without leave to amend is affirmed where: 1) there are no allegations in the charging complaint that the accountants knew that the restaurant's representation of employees' income was wrong at the time they prepared these documents, and there are no allegations that the accountants were hired to calculate, or in fact did calculate, employees' income for purposes of year-end reporting; and 2) the accountants did not owe the employees a duty of care under the negligence theory alleged in the second amended complaint.

[08/23] Ruiz v. Podolsky
In a medical malpractice and wrongful death suit brought by decedent's wife and children against an orthopedic surgeon and other health care providers, judgment of the court of appeal is reversed and remanded as, in accordance with the intent of the Legislature that enacted Code of Civil Procedure section 1295 and related statutes, all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when, as here, the language of the agreement manifests an intent to bind these claimants.

[08/23] Morton v. Thousand Oaks Surgical Hosp.
In plaintiffs' suit against a hospital and physicians alleging a cause of action for negligent infliction of emotional distress (NEID), arising from their mother's surgery for a sigmoid colon resection, trial court's dismissal after sustaining a demurrer to plaintiffs' cause of action for NIED is affirmed as plaintiffs' allegation, that they were "experienced in the medical field and understood and appreciated the dangers faced by their mother" in the event remedial action was not taken, is insufficient to establish that plaintiffs knew and appreciated the medical circumstances affecting their mother.

[08/13] Abcarian v. McDonald
In plaintiff's suit against a university and number of its employees, claiming that defendants' reporting of a settlement of a medical malpractice claim against him to state and national professional authorities violated his constitutional rights, district court's denial of plaintiff's motion to reconsider its judgment of dismissal of the case is affirmed as plaintiff's own complaint shows that the defendants merely complied with legal requirements for filing notices of medical malpractice settlements with federal and state authorities, and by filing those notices, defendants did not violate plaintiff's free speech rights or his rights to equal protection of the law and due process of law.

[08/06] Csiszer v. Wren
In an action against the hospital and obstetrician that provided care to a mother during the birth of their daughter, claiming that negligent care during the delivery was the proximate cause of the daughter's cerebral palsy, judgment for defendants is affirmed where: 1) the objectionable portions of defense counsel's argument, as well as any evidence presented concerning the financial aspects of the daughter's care and treatment, were rendered irrelevant by the jury's verdict in the defendants' favor on liability; and 2) the Arkansas statute setting forth the elements that a medical malpractice a plaintiff must prove through expert testimony did not burden plaintiffs' fundamental rights.

[08/02] Haworth v. Superior Court
In a female patient's suit against her physician for negligence in performing plastic surgery on her lip, court of appeal's affirmance of the superior court's order vacating an arbitration award in favor of the physician on the ground that the neutral arbitrator had failed to disclose a matter "that could cause a person aware of the facts to reasonably to entertain a doubt that the...neutral arbitrator would be able to be impartial," is reversed as the neutral arbitrator, a former judge of the superior court, was not required to disclose to the parties the circumstances that 10 years earlier, he received a public censure based upon his conduct toward and statements to court employees, which together created "an overall courtroom environment where discussion of sex and improper ethnic and racial comments were customary."

[07/30] Baker v. Simpson
In plaintiff's appeal from the denial of his motion to remand his legal malpractice action from a bankruptcy court to state court, the order is affirmed where claims of professional malpractice, based on services rendered pursuant to a Title 11 petition, "arise in" a bankruptcy case because they implicate the integrity of the bankruptcy process and are inseparable from that proceeding.

[07/26] Cruz-Vazquez v. Mennonite Gen. Hosp., Inc.
In plaintiff''s suit filed pursuant to the Puerto Rico's medical malpractice law and the federal Emergency Medical Treatment and Active Labor Act (EMTALA), district court's judgment in favor of the defendants is vacated as the district court abused its discretion in excluding plaintiff's expert witness, as considerations such as an expert witness's pecuniary interest in the outcome of a case, or his status as an expert witness only for one side of an issue, or the extent to which a doctor currently sees patients, go to the probative weight of testimony, not its admissibility.

[07/16] Montgomery v. Superior Court
In a medical malpractice action against a physician, plaintiffs' petition for relief from the order of the trial court removing their only expert witness on the medical standard of care and causation is granted as the removal was unnecessary because the expert waived any conflict of interest arising out of the previous representation by the doctor's counsel.

[07/09] Freeman v. X-Ray Assocs., P.A.
In a medical malpractice action claiming that defendant doctor performed a biopsy on an incorrect organ, the trial judge's grant of defendant's motion for a directed verdict in the defendant's favor is reversed where: 1) the liver biopsy performed on plaintiff was a surgical procedure as contemplated by 18 Del. C. section 6853(e)(3); and 2) this rendered a medical expert's opinion on the standard of care and breach thereof unnecessary.

[06/28] Scott v. Rayhrer
In a medical malpractice suit, arising from a surgery for colorectal cancer where a drain inserted after the surgery was left in plaintiff's abdomen and not discovered and removed until 20 months later, the judgment of the trial court is affirmed as the trial court did not err: 1) in refusing to give the res ipsa loquitur instruction as to one of the doctors; 2) in instructing the jury that a finding of negligence must be based on expert testimony; and 3) in its instruction to the jury on the standard of care.

[06/21] Med. Assurance Co., Inc. v. Hellman
District court's order issuing a stay of federal proceedings in an insurer's request for declaratory judgment, claiming that it no longer has a duty to defend or indemnify a doctor due to his disappearance in more than 350 medical malpractice claims, is reversed and remanded as it was an abuse of discretion to stay this action.

Back to Main Menu