3 State Supreme Courts Reinstate 3 Medical Malpractice Cases In 10 Days

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Between September 9 and September 18, Three Different State Supreme Courts In The United States Reinstated Medical Malpractice Cases That Lower Courts Had Dismissed. MedicalMalpracticeLawyers.com Discusses Each Of These Cases In Detail.

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Between September 9 and September 18, three different state Supreme Courts In the United States reinstated medical malpractice cases

The state Supreme Courts of Connecticut, Nevada, and New Mexico each issued written opinions in medical malpractice cases earlier this month that their respective lower trial courts had either dismissed or entered summary judgment in favor of the defendants. In each of these cases, the state Supreme Court determined that the cases had been improperly resolved in favor of the defendants and remanded the cases back to the trial courts for trial.

The Connecticut Case

In its opinion released on September 9, 2014, the Connecticut Supreme Court reviewed the decision of the trial court in a Connecticut medical malpractice case where the trial court granted the defendants’ motions to dismiss the medical malpractice case even though it was commenced within one year of the dismissal of the first action, because the defendants were not properly served within the statute of limitations. The trial court further determined that Section 52-592 did not apply to save the plaintiff’s action because the first action was not “commenced” for purposes of that statute.

The Connecticut Supreme Court held that the wrongful death medical malpractice action was commenced against the defendants when they had effective notice within the time period prescribed by the statute of limitations, and therefore remanded the case to the trial court for trial.

Karen Dorry, Administratrix (Estate of Jerome Dorry), et al. v. Mitchell S. Garden, et al., SC 19191.

The New Mexico Case

In a written opinion issued by the Supreme Court of the State of New Mexico on September 18, 2014, the New Mexico Supreme Court reinstated a medical malpractice case that had ended in summary judgment being entered in favor of the defendant hospital because the medical malpractice plaintiff had failed to specifically plead the vicarious liability of the defendant hospital for the alleged failure of a contract radiologist to communicate a possible cancer diagnosis to the emergency room physician, leading to a fourteen-month delay in diagnosing the patient’s colon cancer. The defendant hospital had also alleged that the plaintiff failed to submit required expert testimony in support of his negligence claim.

The New Mexico Supreme Court stated, “Communication between medical personnel is not a matter that requires expert knowledge to understand the standard of care involved. A party may be able to establish that a departure from the standard of ordinary care occurs when a clerical error affects the timeliness or accuracy of a diagnosis … A professional setting such as a hospital might tailor communications to fit specific needs, but the fact that communication must occur is within the realm of common knowledge. A reasonable patient understands that the radiologist who processes X-rays needs to communicate the results to the treating physician. Basic human communication, even between doctors, is not so far from common knowledge that it requires an expert’s testimony.” The New Mexico Supreme Court remanded the case to the trial court for trial.

Diego Zamora as Personal Representative of the Estate of William "Mack Vaughan v. St. Vincent Hospital, Docket No. 33,770.

The Nevada Case

In its decision dated September 18, 2014, the Supreme Court of the State of Nevada reinstated a Nevada medical malpractice case that had been dismissed by the trial court because the plaintiff’s expert affidavit attached to her medical malpractice complaint did not identify all the medical malpractice defendants by name and referred to them only as staff of the medical facility.

The Nevada Supreme Court held that the district court should read a medical malpractice complaint and affidavit of merit together when determining whether the affidavit meets the requirements of NRS 41A.071, the purpose of which is to deter frivolous claims and provide defendants with notice of the claims against them. In the case the Nevada Supreme Court was deciding, it held that the plaintiff’s expert affidavit, while omitting several names, adequately supported the allegations of medical malpractice against the medical malpractice defendants contained in the complaint and provided adequate notice to the defendants of the claims against them. Therefore, the Nevada Supreme Court reversed the trial court’s order of dismissal and remanded the case to the district court for further proceedings.

Max Zohar, a minor, and Dafna Noury, Individually and as the Natural Mother of Max Zohar v. Michael Zbiegien, M.D., et al., No. 60050.

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Jeff E. Messing, President
MML Holdings LLC
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