Confronting Medical Error
October 31, 2005
In September of this year, a medical malpractice suit pending in Wilkes-Barre, PA, generated significant publicity as the case proceeded to trial. In that case, plaintiffs Tukishia and William Bobbett filed suit against Mercy Hospital and several physicians following the death of their 4-year-old son in the hospital's emergency room. The child, Torajee Bobbett, died after spending more than 9 hours at the hospital on July 19, 2001 into July 20, 2001, without obtaining proper treatment, according to documents filed in the court record. Several aspects of plaintiffs' claim related to alleged deficiencies with the Emergency Department's policies, procedures and staffing at the time Torajee was treated.
Why CA's Anti-SLAPP Statute Should Apply to Peer Review
October 31, 2005
California law protects defendants from lawsuits designed to thwart "a person's right of petition or free speech under the United States or California Constitution in connection with a public issue." The "anti-SLAPP" (Strategic Lawsuit Against Public Participation) statute provides this protection by permitting the defendant to move to strike the plaintiff's complaint at the outset of litigation unless the plaintiff can demonstrate a likelihood of success on the merits of the claim. (Cal. Code Civ. Proc., ' 425.16, subd. (e)).
Verdicts
October 31, 2005
Recent rulings of importance to you and your practice.
Med Mal News
October 31, 2005
The latest news you need to know.
Bifurcating Medical Malpractice Cases
October 31, 2005
A classic medical malpractice trial generally conjures up images of strategic trial lawyers, sympathetic plaintiffs, and zealous expert witnesses all culminating in one statement from the jury regarding both liability and damages. This vision -- one of a unitary trial -- contrasts starkly with a device of civil procedure called a bifurcated trial. One of the primary methods of bifurcating a trial is to separate the liability phase from the damages phase. Though widely utilized in other civil cases, bifurcation is seldom requested -- or granted -- in medical malpractice cases. What is the current state of the law and its application to medical malpractice cases, and what are some practical considerations that may factor into the decision whether to seek bifurcation?
Plaintiff Has Standing in Defective Device Lawsuit
October 31, 2005
A patient implanted with a medical device is vulnerable to injury if that device is defective, even long after the operation and recovery phases have passed. Some courts have recognized a right to certain types of recovery when there is a prospect of future injury, but others have not. In the recent case of <i>Sutton v. St. Jude Medical S.C. Inc.</i>, 2005 U.S. App. LEXIS 18013 (6th Cir. 9/23/05), the U.S. Court of Appeals for the Sixth Circuit was asked to answer a related threshold question of first impression in a medical monitoring case: Does an increased risk of harm requiring current medical monitoring serve as a sufficient injury in fact to confer standing to sue?
Unallocated Family Support
October 31, 2005
In an article in the January, 2004, issue of The Matrimonial Strategist, I discussed the use of temporary support orders in a divorce action to allow the payor to deduct undifferentiated family support payments or for the purpose of paying debts, such as counsel fees, in light of a series of recent cases. The leading case disallowing the deduction of family support payments is Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002) (Colorado law; family support payments) but there are decisions involving the law of other states, mainly found in a series of Tax Court memorandum decisions. Some more recent cases now cast doubt on these precedents, leaving resolution of the issue uncertain, both for temporary orders, which by definition abate with the death of one of the parties to the pending divorce action, and for permanent marital settlements. They also raise the question whether an explicit termination provision would be effective if federal tax authorities conclude that the relevant state court would decide that the termination clause could not apply to the payor's child support obligation included within the support payments required by the order. A survey of state law reveals that this question is unresolved in almost every state, leaving the field wide open for federal tax determination of an important state law issue.
Litigation
October 31, 2005
Recent rulings of importance to you and your practice.
'Moral' Obligation to Adult Child Found No Bar to Restitution
October 31, 2005
In this age of corporate greed, the courts are faced with many new issues surrounding restitution. The appeal of Bernard Jaffe Jr. gave the Second U.S. Circuit Court of Appeals its first opportunity to define the term "dependent" under the Mandatory Victims Restitution Act of 1996, which requires district courts to order restitution to compensate victims for their losses "without consideration of the economic circumstances of the defendant."
