Personal Injury Professional Malpractice Civil Procedure

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Taking Down the Flagg: Fifth Circuit Remands Med Mal & Device Case for Lack of Diversity Despite Uncompleted Administrative Review...

A divided panel (2-1) of the U.S. Circuit Court of Appeals for the Fifth Circuit recently held that failure to exhaust a state law pre-suit medical panel review process did not subject the plaintiff’s claims against the...more

Health Alert (Australia) - October 5, 2015

In This Issue: - Judgments; Legislation; and Reports. - Excerpt from Judgments: Victoria. Epichealth Pty Ltd v Yang [2015] VSC 516 The Supreme Court has granted an interlocutory...more

Massachusetts Supreme Judicial Court Reinforces the Standard for Detailed and Complete Expert Disclosures and Clarifies the...

Massachusetts has made much ado about expert disclosures in recent years, even going so far as to implement the still “newish” Superior Court Rule 30B, which requires experts to sign party disclosures of the facts, opinions...more

Ask But Don’t Tell: Kentucky Allows Defendant to Seek Ex Parte Interviews of Plaintiff’s Treating Physicians

We walked into the Drug and Device Law Rock Climber’s room last night to find her packing for her return to college while the ignored TV blared in the background. Onscreen was a popular cable reality franchise involving...more

Plaintiff’s Expert Physician Deemed Not Competent to Testify as to the Standard of Care Applicable to Hospitals

In Lattimore v. Dickey (2015 S.O.S. 4448 – filed August 21, 2015), the California Court of Appeal for the Sixth District held that plaintiff’s expert physician’s declaration was insufficient to create a triable issue of...more

CA Supreme Court Expands Scope of Lawyers’ Statute of Limitations to Non-Legal Malpractice Claims – Confusion Predicted for Law...

In Lee v. Hanley (S220775 – Filed 8/20/2015), the California Supreme Court clarified the meaning of Code of Civil Procedure section 340.6 by holding that its limitations period applies to claims against attorneys “whose...more

Health Alert (Australia) - August 17, 2015

In This Issue: - Judgments; Legislation; and Reports. - Excerpt from Judgements: New South Wales (NSW) 13 August 2015 - Waller v James [2015] NSWCA 232 The NSW...more

Missouri Court of Appeals – Western District Upholds Missouri Statute Requiring Plaintiff to Submit a Health Care Affidavit of...

Austin v. Schiro, Slip Opinion, WD78085 (Mo.App. W.D. May 26, 2015) - The Missouri Court of Appeals, Western District, affirmed a trial court decision dismissing a plaintiff’s medical negligence action, without...more

No Duty for Device Manufacturer to Provide Separate Warnings to Hospital, According to Washington Court of Appeals

We admit it. We (and “we,” in this instance, should be read in the singular) are fans of certain social media, particularly the one that involves “posting” on a “wall” then sitting back and basking in the “likes.” We tend...more

Supreme Court of Missouri Upholds 10-Year Statute of Repose for Foreign-Object Medical Malpractice Claims

Ambers-Phillips v. SSM DePaul Health Center, 2015 WL 1926012 (Mo.banc. April 28, 2015) - The Supreme Court of Missouri, en banc, affirmed a trial court’s decision to dismiss a plaintiff’s foreign-object medical...more

Medical Malpractice Damage Caps — A Balance of Justice

In a recent landmark decision for the citizens in the State of Florida, Florida’s Fourth District Court of Appeals, the appellate court for Palm Beach, Broward, and the counties to their north, issued an opinion finding the...more

Defending Against Non-Retained Experts

California is generally regarded as providing broad leeway for non-retained experts to testify on a range of matters. Several recent decisions, however, have narrowed the scope of permissible testimony for non-retained...more

Hospital Says Injury Was Malpractice, Plaintiff Insists It Wasn’t

Here’s an interesting riddle. When a plaintiff sues a hospital for an injury, why would the hospital insist the injury was caused by malpractice? Even more puzzlingly, why would the plaintiff insist she was not the victim...more

Serving Legal Documents On Time Can Be Tricky

Woodland Hills personal injury lawyer Barry P. Goldberg runs into litigation service deadlines on a regular basis. It can be confusing calculating when a legal document is considered “served” according to the Code of Civil...more

Long Tail Personal Injury Claims – Have the Gates Opened in Western Australia?

In September 2014, we reported on the argument before the Supreme Court of Western Australia Court of Appeal in an appeal against the decision of Dixon v Clarke [2013] WASC 471.  The Court of Appeal delivered its reasons for...more

NJ Appeals Court Upends Nursing Home Negligence Suit

In a decision with far-reaching ramifications for long-term care litigation, the Superior Court of New Jersey, Appellate Division held that § 30:13-4.2 of the Nursing Home Responsibilities and Residents’ Rights Act (NHA) does...more

Pennsylvania Federal Court Reiterates EMTALA’s Inapplicability to Transfers of “Admitted Patients”

On February 23, 2015, the District Court in Baney v. Fick held that a patient’s complications arising from elective surgery do not fall under the purview of the Emergency Medical Treatment and Labor Act, 42 U.S.C. § 1395dd,...more

Caution: Read (and understand) before signing…contributory negligence bars legal malpractice suit

Under North Carolina law contributory negligence is a complete defense to all types of negligence claims including legal malpractice. Summary judgment is appropriate in NC if a plaintiff is contributory negligent....more

Appellate Court Notes

AC35659 - Ceferatti v. Aranow - In this med mal case the Appellate Court held that leaving a sponge in the patient did not toll the SOL under the continuing course of conduct theory so as to avoid SJ in favor of the...more

Your Deposition: What to Expect [Video]

Depositions sound intimidating to any lay person involved in a civil lawsuit. Whether the case is about a personal injury, a commercial dispute, an employment issue or any other kind of claim that winds up in civil court,...more

“Uncollectibility” Is an Affirmative Defense to Legal Malpractice Claims in Washington

The Washington Supreme Court addressed two issues of first impression regarding legal malpractice claims in Schmidt v. Coogan, No. 88460-9, (October 9, 2014) and held: (1) that “uncollectibility” is an affirmative defense to...more

SCOVA Refuses to Incorporate Prior Discovery Rulings from Previous Non-suited Action

In Temple v. Mary Washington Hospital, Inc., et al., Record No. 131754 (Sept. 12, 2014), the Supreme Court of Virginia opined on an obscure, yet significant, issue related to the common practice of incorporating discovery by...more

High Court hears appeal on hospital’s duty of care to man murdered by mental health patient

Last week, the High Court of Australia heard argument in an appeal against the decision of McKenna v Hunter & New England Local Health District; Simon v Hunter & New England Local Health District [2013] NSWCA 476. The...more

Did the Federal Court Protect the Wrong Doctor?

Last week in a medical malpractice case in Alabama, a federal court denied the plaintiff’s motion to compel production by a hospital of the defendant doctor’s personnel file. The plaintiff believed that the file could show...more

Court Nixes Litigation Standards Set by Pathologists

What if a truck drivers' union tried to set standards for when juries could conclude that a driver was negligent in causing a motor vehicle wreck? Or what if a trucking company could defend its driver falling asleep at the...more

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