Archive - Medical Malpractice

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October 24, 2013

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.

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April 5, 2013

Medical Standard of Care Case

Craig L. McIvor, Deborah A. Severson, and David M. Norman won a defense verdict in Anderson v. Hamon, a medical malpractice case.  Plaintiff was visiting Seattle from Hawaii, and had been diagnosed with sinusitis six weeks before his lone encounter with Dr. Hamon.  He complained of ongoing headache and other symptoms.  No neurological abnormality was found, and Dr. Hamon concluded that plaintiff’s earlier sinus infection had not fully resolved.  He prescribed antibiotics and pain medication. The next day, plaintiff’s brain herniated and he was airlifted to Harborview.  A CT scan revealed a large brain abscess, requiring two craniotomies for drainage.  Plaintiff argued that Dr. Hamon fell below the standard of care by not referring him for an immediate CT scan, which would have revealed the brain abscess and resulted in surgery before his brain herniated.  Plaintiff suffered significant brain damage, including blindness and hemiparesis.   After a hard-fought, three-week jury trial in Kitsap County, the jury returned a defense verdict.

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Surgical Complication Negligence Case

Craig L. McIvor and Dan J. Von Seggern won a complete defense verdict in Rupnick v. Wright, a medical malpractice case.  The plaintiffs alleged that Dr. Wright was negligent in his care of   Ms. Rupnick following a 2005 laminectomy.  They alleged that Ms. Rupnick suffered permanent nerve damage because she was not taken back for additional surgery within 48 hours after the laminectomy and that he had failed to inform her of a surgical complication.  After a two-plus week trial, the jury deliberated less than three hours and  returned a verdict that Dr. Wright was not negligent.

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Consumer Protection Act, Discrimination

Sherry H. Rogers and David M. Norman obtained summary judgment of dismissal in Johnson v. Fertility Clinic, Inc.  Plaintiff brought 14 claims against Sherry and David’s clients, including medical malpractice, violation of the Consumer Protection Act, discrimination, and assault and battery, among others.  Sherry and David moved for summary judgment on all claims, and obtained dismissal as to all but the assault and battery claims.  After the defendant doctor passed away, Sherry and David moved for summary dismissal again under the Dead Man Statute, which  renders the oral testimony of an interested witness regarding a deceased person incompetent in an action brought by or against the estate of the deceased. The court granted this motion, dismissing the remainder of plaintiff’s case.

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.

Medical Malpractice Action

Joel E. Wright and David M. Norman obtained a voluntary dismissal with prejudice in Foley v. Physical Therapist Company. Joel and David sought summary judgment dismissal of the plaintiff’s medical malpractice action, while simultaneously pursuing sanctions for the plaintiff’s discovery violations.  The court granted the sanctions motion.  In response, the plaintiff voluntarily dismissed his case with prejudice, and paid a reduced sanction amount through a stipulated judgment.

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.

Assault by Another Patient

Sherry H. Rogers and David M. Norman won a defense jury verdict in a medical malpractice action Metje v. Cascade Emergency Physicians, Inc., P.S. Plaintiff was pregnant, and sought care at the Emergency Department of Auburn Regional Medical Center (ARMC) for abdominal pain.  She was assaulted in her hospital room by another patient, John Doe, who was schizoaffective. A physician from Sherry and Dave’s client had evaluated Mr. Doe when he arrived at the hospital. Plaintiff suffered a miscarriage approximately a month later. She brought suit against the hospital and Cascade, alleging negligence for not adequately protecting her from the criminal actions of Mr. Doe. Plaintiff sought $2.4 million in damages. The hospital settled with plaintiff a week before trial. Virtually every aspect of the trial was bitterly contested; the trial proceedings were marked by near-daily motions, responses, and evidentiary conflicts. After deliberating for approximately five hours, the jury found that Cascade’s physicians were not negligent and returned 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.

Nursing Home Medical Battery Claim

Sherry H. Rogers and David M. Norman obtained a dismissal in two cases. In a medical-battery claim against a nursing home, Serrano v. Aureus Nursing, police escorted plaintiff from her home after she made suicidal threats while intoxicated. She was involuntarily taken to the hospital for a mental-health evaluation. She refused to blow into a breathalyzer, became agitated and violent, and tried to seclude herself in her room. When hospital staff intervened, she slapped a security guard. A nurse ordered that plaintiff be put into four-point restraints. Plaintiff sued the hospital and the nurse, Sherry and David’s client, and others for medical battery, outrage, and civil rights violations. After Sherry and David moved for summary judgment, plaintiff’s counsel stipulated to voluntary dismissal with prejudice of all claims.

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.

Wrongful Death Medical Malpractice Case

In Delay v. Marcereau, a wrongful-death medical-malpractice case, Sherry H. Rogers and David M. Norman obtained a voluntary dismissal claims. Plaintiff’s mother died from complications of a bowel obstruction while hospitalized. Plaintiff sued the hospital, the radiologist, the hospitalist, and the emergency room physicians. Sherry and David sought summary judgment of dismissal on behalf of one of the emergency room physicians. They argued that their client did not assume a duty of care for the deceased beyond the limited emergency care he provided for her, that plaintiff lacked an expert witness to establish that the doctor was negligent, and that plaintiff could not prove a lack of informed consent, which is implied as to healthcare rendered in emergency situations. Rather than respond to the motion, counsel for plaintiff stipulated to an order of voluntary dismissal 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.

Surgeon’s Alleged Negligence Defended

Craig L. McIvor and David Norman won summary judgment of dismissal for a surgeon in Germeau v. Hennessey. Plaintiffs sued for medical malpractice, alleging that surgeons were negligent in their care of an elderly patient who later died from complications of surgery. Craig and David moved for summary judgment on behalf of the doctor who performed the surgery, plaintiffs did not file a response, and the court dismissed all claims against the surgeon with prejudice.

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