Justia Professional Malpractice & Ethics Opinion Summaries

The Supreme Court reversed the judgment of the district court granting summary judgment in favor of Defendant on the ground that Plaintiff's cause of action was time barred by the statute of limitations for professional negligence under Neb. Rev. Stat. 25-222, holding that the district court erred in concluding that a massage therapist is a professional under section 25-222 and in granting summary judgment on that ground.Plaintiff, a customer of Defendant, a massage therapy establishment, alleged that Defendant's employee, a licensed massage therapist, improperly compressed a nerve on Plaintiff's neck, causing her to become unconscious, fall out of the massage chair, and sustain injuries. Plaintiff filed suit against Defendant, alleging that her injuries were caused by Defendant's negligence as the massage therapist's employer. The district court dismissed the complaint, concluding that Plaintiff's claim was time barred by the application of section 25-222. The Supreme Court reversed, holding that the district court erred by finding that massage therapy is a "profession" within the meaning of section 25-222. The Supreme Court remanded the cause to the district court. View "Wehrer v. Dynamic Life Therapy & Wellness, P.C." on Justia Law

The Supreme Court affirmed the judgment of the district court granting Defendants' motions to dismiss Plaintiff's petition alleging that Defendants - medical providers and facilities - committed negligence and medical malpractice resulting in a patient's wrongful death, holding that Plaintiff failed to meet the evidentiary standard required when responding to a motion to dismiss with facts outside the pleadings.In dismissing Plaintiff's petition, the district court found that the petition was filed one day after the statute of limitations had expired. On appeal, Plaintiff argued that her attorney electronically submitted the petition for filing before the statute of limitations ran and promptly responded when the petition was returned because of an electronic filing issue. The Supreme Court affirmed, holding that no evidence in the record supported Plaintiff's factual assertion that her counsel timely submitted the same petition as the one eventually file stamped by the clerk. Therefore, the Court could not reach the substance of Plaintiff's argument that a document is filed for purposes of the statute of limitations when uploaded to the electronic filing system rather than when the clerk of court accepts and file stamps it. View "Lambert v. Peterson" on Justia Law

Courtney had a CT scan performed at CDI’ diagnostic imaging facility. The radiologist, Webster, an independent contractor hired by MSC, missed Courtney’s rectal cancer. Courtney's cancer festered for over a year before being diagnosed, having metastasized to her lungs and liver. CDI claimed that it could not be held liable because CDI did not directly employ Webster. The district court rejected this argument and applied Indiana’s apparent agency precedent, which instructs that a medical provider is liable if a patient reasonably relied on its apparent authority over the wrongdoer. The jury returned a $15 million verdict. The Seventh Circuit affirmed, first explaining that CDI had not registered under Indiana’s Medical Malpractice Act, which limits liability for registered qualified health care providers and requires the presentation of a proposed complaint to a medical review panel before an action is commenced in court. MSC and Walker had registered as qualified health care providers, so the Websters had filed a complaint against them with the Indiana Department of Insurance. Courtney testified that she had no idea about the contractual relationships among MSC, CDI, and Dr. Walker and she was never provided information that the physician who would be interpreting her CT scan was not subject to CDI’s control or supervision. View "Webster v. CDI Indiana, LLC" on Justia Law

In 2009, Della Gallegos had to undergo three cranial surgeries after her radiologist, Dr. Steven Hughes, failed to detect an obvious brain tumor on an MRI scan three years earlier. Had Dr. Hughes discovered the tumor in 2006, Gallegos could have treated it with cheaper, and less invasive, radiosurgery. The highly invasive cranial surgeries damaged Gallegos’s vision, hearing, and memory. Gallegos retained attorney Patric LeHouillier to sue Dr. Hughes for medical malpractice. But LeHouillier later decided not to proceed with the suit, concluding it did not make economic sense. He and Gallegos disagreed over whether he actually informed her of this decision, and the statute of limitations lapsed on the claims Gallegos could have brought against Dr. Hughes. Gallegos thereafter brought this attorney malpractice case against LeHouillier and his firm, claiming that LeHouillier’s negligence prevented her from successfully suing Dr. Hughes for medical malpractice. The question before the Colorado Supreme Court involved who bore the burden to prove that any judgment that could have been obtained against Dr. Hughes would have been collectible. The Supreme Court concluded that because the collectibility of the underlying judgment was essential to the causation and damages elements of a client’s negligence claim against an attorney, it held the client-plaintiff bore the burden of proving that the lost judgment in the underlying case was collectible. Here, the record reflected Gallegos failed to present sufficient evidence of collectibility. However, given the absence of a clear statement from the Supreme Court regarding plaintiff's burden to prove collectibility at the time of trial, and because the issue was not raised in this case until after Gallegos had presented her case-in-chief, the Court reversed the court of appeals and remanded for a new trial. View "LeHouillier v. Gallegos" on Justia Law

Keith's estate filed a wrongful death and survival action against Ortberg, a licensed clinical social worker and employee assistance program counselor, and her employer Rockford Memorial Hospital, alleging that, on September 30, 2005, Keith had an initial appointment with Ortberg; that it was Ortberg’s duty to evaluate Keith’s mental health condition; that Ortberg breached her duty by performing an inadequate assessment and failed to recognize that Keith was at high risk for suicide, and failed to refer him to an emergency room or a psychiatrist for immediate treatment. Keith died by suicide on or about October 6, 2005. The circuit court submitted an instruction, over plaintiff’s objection, asking the jury to respond “Yes” or “No”: Was it reasonably foreseeable to Ortberg on September 30, that Keith would commit suicide on or before October 9? The jury entered a general verdict in favor of the plaintiff, awarding damages of $1,495,151, but answered “No” on the special interrogatory. The circuit court ruled that the special interrogatory answer was inconsistent with the general verdict and entered judgment in defendants’ favor. The appellate court found, and the Illinois Supreme Court affirmed, that the special interrogatory was not in proper form and should not have been given to the jury; it did not apply the objective “reasonable person” standard for determining foreseeability and, therefore, misstated the law, Because the special interrogatory was ambiguous, the jury’s answer was not necessarily inconsistent with its general verdict. View "Stanphill v. Ortberg" on Justia Law

In 2002, in Texas, Dr. Phillips performed a laparoscopic hysterectomy on Bramlett, a 36-year-old mother. While hospitalized, Bramlett suffered internal bleeding and died. Her family filed a wrongful death lawsuit against the hospital and Dr. Phillips, who held a $200,000 professional liability insurance policy with MedPro. He notified MedPro of the lawsuit. In 2003, the hospital settled with the Bramletts for approximately $2.3 million. The Bramletts wrote to Dr. Phillips’s attorney, Davidson, with a $200,000 Stowers demand; under Texas law, if an insurer rejects a plaintiff's demand that is within the insured’s policy limit and that a reasonably prudent insurer would accept, the insurer will later be liable for any amount awarded over the policy limit. MedPro twice refused to settle. The family won a $14 million verdict. The Supreme Court of Texas capped Dr. Phillips’s liability. The family sued MedPro, which settled. MedPro was insured by AISLIC, which declined to cover MedPro’s settlement. The district court granted AISLIC summary judgment, concluding that coverage was excluded because MedPro should have foreseen the family’s claim. An exclusion precluded coverage for “any claim arising out of any Wrongful Act” which occurred prior to June 30, 2005, if before that date MedPro “knew or could have reasonably foreseen that such Wrongful Act could lead to a claim.” The Seventh Circuit reversed in part, finding genuine issues of material fact regarding whether MedPro’s failure to settle was a Wrongful Act and whether MedPro could have foreseen a "claim" before the malpractice trial. View "Medical Protective Co. of Fort Wayne, Indiana v. American International Specialty Lines Insurance Co." on Justia Law

Defendant struck Plaintiff, a pedestrian with his vehicle. Plaintiff filed a personal injury suit. Defendant filed an answer with an affirmative defense. Defendant answered an interrogatory about his drivers' license by stating that he had diabetes and required medical approval to drive, but refused to answer follow-up questions about his medical condition, stating that the question violates HIPAA, doctor-patient privilege; the Defendant has not placed his medical condition at issue. The court found that Plaintiff had legitimate cause to believe that Defendant had sight problems that could have been related to the accident and held Defendant’s attorney in contempt. The court found the attorney was not entitled to assert the physician-patient privilege, 735 ILCS 5/8-802. The Illinois Supreme Court affirmed the appellate court’s reversal of the contempt order. A plaintiff may not waive a defendant’s privilege by putting the defendant’s medical condition at issue. Neither the plaintiff nor the defendant asserted anything about defendant’s physical or mental condition. If these allegations put a defendant’s medical condition in issue, then it will be at issue in most traffic accident cases. The court urged the legislature to clarify the meaning of “at issue” and noted that, when a patient obtains a physician’s report to maintain his driving privileges, he is not seeking treatment so the privilege does not apply to the record filed with the Secretary of State. View "Palm v. Holocker" on Justia Law

The Supreme Court affirmed the orders of the district court granting summary judgment in favor of Defendants, three professionals, on Plaintiff’s claims of malpractice, breach of fiduciary duty, and conversion arising out of conservatorship and divorce proceedings, holding that the district court did not err.Defendants were Plaintiff’s conservator and counsel during the divorce proceedings. After the divorce concluded, Defendant filed this lawsuit alleging conversion, professional malpractice, and breach of fiduciary duty. The Supreme Court affirmed, holding (1) collateral estopped precluded Plaintiff from prevailing on his conversion claim; and (2) the district court did not err in granting summary judgment in favor of Defendants on the malpractice and breach of fiduciary duty claims. View "Tozzi v. Moffett" on Justia Law

The administrator of the decedent’s estate brought a wrongful death and survival action against Union Health Service based on alleged negligence in providing medical treatment the decedent. UHS moved to dismiss on the grounds that it is immune from suit under the Voluntary Health Services Plans Act (215 ILCS 165/26), as a “health services plan corporation”. The Act provides: A health services plan corporation incorporated prior to January 1, 1965, operated on a not for profit basis, and neither owned or controlled by a hospital shall not be liable for injuries resulting from negligence, misfeasance, malfeasance, nonfeasance or malpractice on the part of any officer or employee of the corporation, or on the part of any person, organization, agency or corporation rendering health services to the health services plan corporation’s subscribers and beneficiaries.” The circuit court denied the motion, reasoning that a 1988 amendment to section 26 was unconstitutional because it left intact UHS’s statutory immunity while eliminating that immunity for all other similarly situated entities. The Illinois Supreme court reversed. UHS was also immune under the prior version of the law. The former version of the law has been upheld by our appellate court against constitutional attack. addressing the constitutionality of the 1988 amendment is not necessary for resolution of this case. View "Gonzalez v. Union Health Service, Inc." on Justia Law

The Supreme Court reversed the judgment of the court of appeals holding that a health care claimant’s expert report was insufficient as to causation with respect to one of her providers and dismissing her claims against that provider, holding that the expert report adequately addressed both causation and the standard of care.The health care claimant in this case sued a health care provider and two of its physicians for negligence. Only the claimant’s claim against the provider for vicarious liability based on the alleged negligence of its employee nurses was at issue in this appeal. The provider filed a motion to dismiss the claimant’s claims challenging the claimant’s expert report. The trial court denied the motion to dismiss. The court of appeals reversed and dismissed the claims against the provider. The Supreme Court reversed and remanded the case to the trial court for further proceedings, holding that the report sufficiently identified the applicable standard of care and linked the provider’s nurses’ alleged breaches with the claimant’s injuries. View "Abshire v. Christus Health Southeast Texas" on Justia Law