Archive - Medical Malpractice

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

April 11, 2017

Dismissal as a Matter of Law

Marc Rosenberg won dismissal as a matter of law in Boston v. Kitsap County, et al., in which a plaintiff sued a county and its medical provider under 42 U.S.C. § 1983, claiming the defendants were deliberately indifferent to medical needs of an inmate in the county jail.  Plaintiff also brought a claim against the jail for negligent design resulting in a trip and fall.  Plaintiff served the County with a Notice of Tort Claim, pursuant to RCW 4.96.020, and filed a lawsuit more than three years after events alleged in the pleadings.   The district court denied a Rule 12(b)(6) motion on statute of limitations as to the federal claim.  Upon a certified question, the Ninth Circuit reversed and held that RCW 4.96.020 does not operate to toll the state’s general limitations period for claims under 42 U.S.C. § 1983.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

March 29, 2017

Summary Judgment victory

John C. Versnel, III, Aaron P. Gilligan, and Daniel C. Mooney won summary judgment in Perez v. Pediatric DDS.  Plaintiff claimed $15,000,000 in damages when a minor child suffered permanent right eye blindness after undergoing general anesthesia for extensive dental treatment. John and Aaron moved to dismiss plaintiff’s claims, citing lack of evidence of proximate cause. Dan argued in reply that, even after a three-month continuance, plaintiff still lacked admissible expert testimony on causation. The court denied the motion. John and Dan moved for reconsideration, at which point Plaintiffs came forward with the required testimony. Dan argued the new evidence was untimely and not proper on reconsideration. The court agreed, reversing its prior ruling, and dismissing all of Plaintiff’s claims with prejudice. Paralegal Helen Mooney was instrumental in the motion as well.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

December 8, 2016

Win in Court of Appeals, Div. III

John C. Versnel, III and Aaron P. Gilligan won on appeal in Hedman v. OMS in the Court of Appeals, Division 3.  The lawsuit arose from alleged dental malpractice claims.  The Spokane County  Superior Court granted Defendant’s motion for summary judgment because plaintiff failed to produce medical testimony that the oral surgeon breached the standard of care.  When plaintiff appealed, the Court of Appeals affirmed the summary judgment dismissal.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

November 23, 2016

Dental Malpractice Defense Verdict

John Versnel, III and Dan Mooney obtained a unanimous defense verdict for their client in Lee v. DDS in King County Superior Court.  The plaintiff sued her dentist, John and Dan’s client, and her orthodontist alleging a failure to diagnose and treat her ongoing periodontal disease, and allowing her to be kept in orthodontic treatment too long.  Plaintiff claimed damages were bone loss, tooth mobility and resulting debilitating neuropathic pain.  Plaintiff’s last demand was $1,000,000.  After a two-week trial, the jury returned a unanimous verdict finding the dentist did not violate the standard of care.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

April 18, 2016

Summary Judgment Dismissal of Dentist

Aaron P. Gilligan and Chris L. Winstanley won summary judgment dismissal of plaintiffs’ dental malpractice claim in Early v. Dentist brought in Pierce County Superior Court.  Plaintiffs sued the dentist, alleging negligence, outrage, and negligent infliction of emotional distress arising from an alleged facial nerve injury following a dental procedure.  Aaron and Chris moved for summary judgment on the grounds plaintiffs lacked expert testimony to support breach and proximate cause.  After the court granted plaintiffs an additional 90 days to secure expert testimony, plaintiffs produced an opinion from an expert alleging breach.  The defense pointed out the opinion failed to show such alleged breach proximately caused the alleged injury.  The court agreed and dismissed the action with prejudice.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

November 20, 2013

Claims of Vicarious Liability and Corporate Negligence Against Hospital Dismissed

Craig L. McIvor, David M. Norman and Melinda R. Drogseth obtained summary judgment of dismissal in the matter of Dudley v. Hospital. Plaintiff had a resection of her pituitary gland performed in 1998 after an MRI showed a potential tumor. She developed complications, and claimed that she discovered in 2011 that no tumor was present. Plaintiff alleged that the hospital was vicariously liable for the negligence of the surgeons and for their failure to secure informed consent for the surgery. She also alleged that the hospital was independently negligent for granting privileges to the surgeon and for failing to prevent him from performing the surgery. Craig and David filed a motion for summary judgment of dismissal as to all claims, and the court granted the motion, dismissing all of plaintiff’s claims with prejudice.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

November 19, 2013

Defense Verdict in $10 Million Claim of Negligence Trial

Craig L. McIvor and David M. Norman  obtained a defense verdict in Glenn v. Ob/Gyn Physician.  Plaintiffs were the parents of an infant that died shortly after his delivery.  Plaintiffs alleged that Craig and David’s client was negligent in failing to adequately monitor the baby’s declining condition before the delivery and in failing to make preparations for and performing a “crash” cesarean section in a more expeditious manner.  At trial, plaintiffs asked the jury for approximately $10 million in general damages.  After a three-week trial in King County, the jury found that defendant was not negligent.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

October 24, 2013

Verdict for Physician in Emergency Room Case

Craig L. McIvor and David M. Norman obtained a defense verdict for their emergency room physician client in the matter of Hines v. Health Care Providers.  Plaintiff alleged that the defendants negligently failed to have the patient transfused, causing his eventual death 10 days later.  After a hard fought four week trial in King County, the jury returned a complete defense verdict.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

Defense Verdict in Fracture Case

Sherry H. Rogers and David M. Norman won a defense verdict at trial in Millikan v. Orthopedic Surgeon.  Plaintiff had a minimally-displaced tibial plateau fracture and was treated by Sherry and David’s client.  Plaintiff alleged that defendant’s order to keep the fractured leg immobilized for six weeks fell below the standard of care, and that early motion should have been prescribed no more than two weeks after the fracture to prevent further injury to the knee.  After a six-day trial in Snohomish Country, the jury rendered a defense verdict.

Lee Smart attorneys have extensive experience in the Areas of Practice shown to the right. Click on one to learn more about our expertise and our attorneys in that practice.

April 8, 2013

Washington Recognizes Malpractice Tort for Loss of Chance of Better Outcome

By David M. Norman

No reason exists to distinguish lost chance to avoid disability rather than death, the Court held.

A medical-malpractice plaintiff may sue for a “loss of chance for a better outcome,” the Washington Supreme Court recently held. In Mohr v. Grantham, 172 Wn. 2d 844, 262 P.3d 490 (2011), the Court expanded the “loss of chance of survival” cause of action established in Herskovits v. Group Health Cooperative of Puget Sound, 99 Wn.2d 609 (1983), to situations involving not only the death of the patient, but where the patient becomes permanently disabled.

In Mohr, the patient was injured in a car accident and sought treatment at a medical center. After neurological tests were performed, the patient exhibited neurological symptoms, including unsteadiness on her feet, pain, and lethargy. Early the next morning, the patient was transported to the emergency room of the same medical center; she was diagnosed as having a stroke. Over the next several hours, the patient’s condition significantly deteriorated, and there were multiple delays in her treatment, including delays in ordering a CT angiogram and beginning anticoagulant therapy. By the time the patient was to be transported to Harborview Medical Center, she had suffered permanent brain damage.

The patient and her husband sued, claiming the doctors’ negligence substantially diminished the patient’s chance of recovery and to minimize any potential disability. Relying on Herskovits, the trial court granted defendants’ motion for summary judgment. Plaintiffs appealed to the lower appellate court, which certified the case for the State Supreme Court’s review. The Herskovits Court reversed the trial court, concluding that a “lost chance” cause of action is not confined to circumstances where the patient ultimately dies.

In reaching this decision, the Mohr Court discussed at length Herskovits v. Group Health, the seminal case in which the Court held for the first time that a plaintiff might be entitled to damages for a loss of chance of survival based upon a defendant’s failure to timely diagnose, even where the plaintiff already had a less than 50-percent chance of survival based on the existing injury.  The “lost chance” was itself the cognizable injury.

The Mohr Court found no persuasive rationale to distinguish Herskovits from a medical-malpractice claim where the facts involve a loss of chance to avoid or minimize permanent disability rather than death. Accordingly, recognizing the doctrine in cases arising from permanent disability serves the same underlying principles of deterring negligence and compensating for injury.

Relying on the reasoning in Herskovits, the Mohr Court further concluded that such an injury must be demonstrated through the application of traditional proximate cause principles, i.e., cause in fact and legal causation, both on a more- probable-than-not basis, consistent with what is normally required in medical malpractice cases.

The Mohr Court again relied on the Herskovits decision to establish a proportional approach to the calculation of damages.  That is, if the plaintiff lost a 40-percent chance of survival, he or she would be entitled to only 40 percent of what would be compensable “under the ultimate harm of death or disability, such as lost earnings.” This showing of a loss of chance for a better outcome must be based on expert testimony.

The Mohr Court concluded that the defendants should not have been granted summary judgment because the plaintiffs had made a prima facie showing of negligence through the testimony of two medical experts.  The experts testified that if plaintiff had been retained for observation overnight, her condition would have been earlier discovered to be a stroke.

Further, the doctors each testified that had the patient received non-negligent treatment at various points, she would have had a 50- to 60-percent chance of a better outcome, including the possibility of no disability whatsoever if she had been properly treated.

Two forceful dissenting opinions, authored by Chief Justice Barbara Madsen and Justice James Johnson, respectively, directly challenged the majority’s willingness to recognize the “loss of chance of a better outcome” as the injury itself.

Chief Justice Madsen, in particular, voiced concerns that the majority’s holding would allow for liability upon a showing of the mere possibility that the physician’s negligence caused harm, in derogation of traditional causation principles.  She also concluded that the Legislature is the appropriate body to recognize such a cause of action, considering the wide-reaching policy implications.

Justice James Johnson echoed these concerns in his dissenting opinion, interpreting the issue as one of pure statutory interpretation; because the medical negligence statute requires a showing of proximate cause of a physical injury and the plaintiffs failed to meet their burden to demonstrate a prima facie action as a matter of law.

Twitter Facebook LinkedIn RSS

Archives