Florida courts have grappled with the issue of whether or not claims for quasi-medical injuries occurring in a hospital, medical clinic, or physician’s office, automatically fall under the regulations of Florida’s medical malpractice statutes, or should be brought as ordinary negligence claims. Likewise, plaintiffs claiming damages resulting from these quasi-medical injuries were torn between filing claims under the purview of medical malpractice statutes, or simply filing claims asserting ordinary negligence. Does the classification make any difference? The short answer is, yes.
Products Liability-Record $70 Million Punitive Damage Award Pending Appeal
Kuhlmann et al. v. Ethicon Endo-Surgery Appellate Case No. A147945, Court of Appeal, First District
A record high $70 million punitive damages verdict against Johnson & Johnson in a lawsuit over a defective surgery stapler is up on appeal. Johnson & Johnson contends the evidence does not support the jury’s finding the stapler manufacturer acted with malice. If the verdict is allowed to stand, it will be the highest punitive award affirmed by a California court. Johnson & Johnson’s attorneys claim the amount is excessive, as it far exceeds what courts have approved for cases involving far more reprehensible alleged misconduct, such as harm caused by asbestos or the tobacco industry.
Coalition Against Distracted Driving et al. v. Apple Inc. et al.
In this appeal recently brought before the Second Appellate District (downtown Los Angeles), appellant urged the Court to revive a suit in he and a coalition brought against Apple, Google, Samsung and Microsoft. In that suit, it was alleged these tech giants should be required to warn consumers about the dangers of using smartphones while driving. Plaintiffs argued the four tech companies must apply warning labels regarding the dangers of distracted driving to their products. The trial court dismissed the case, ruling the coalition had no standing to sue.
Statutes of limitations are an integral component of the legal system enacted as a matter of public policy and designed “to give defendants reasonable repose, that is, to protect parties from defending stale claims [and] to require plaintiffs to diligently pursue their claims.” In California, there is an important exception to the general rule that a cause of action accrues when appreciable harm occurs. This is known as the Delayed Discovery Rule. The Rule applies in certain circumstances where it is not reasonably possible for a person to discover the cause of injury or even know that an injury has occurred, until an extended period of time after the act which caused the alleged injury. In these situations, the Delayed Discovery Rule operates to “postpone the accrual of a cause of action until the plaintiff discovers, or has reason to discover, the cause of action.” The principal purpose of the rule permitting postponed accrual of certain causes of action is to protect aggrieved parties who, with justification, are ignorant of their right to sue.
Recently, the Arizona Court of Appeals issued several decisions of interest providing guidance to insurance companies and insurance defense attorney’s litigating in Arizona state court.
Preliminary Expert Opinion Affidavits.
Muniz v. Anderson, et al., 1 CA-CV 17-0146 (Ariz. App. February 15, 2018) – Memorandum Decision
Jesus Muniz filed a medical malpractice claim against Correctional Healthcare Companies, Inc. (“CHC”), alleging its nurse was negligent in administering Muniz an improper dose of insulin. Muniz asserted expert testimony was not required to prove his negligence claim. CHC moved for an order compelling Muniz to serve a preliminary expert opinion affidavit in compliance with A.R.S. §12-2603(B). Muniz then served a preliminary expert opinion affidavit stating his own experience taking insulin qualified him to be his own expert witness. CHC moved to dismiss Muniz’s claim for failure to comply with A.R.S. §12-2603(B). Muniz sought additional time to cure the deficiencies and obtain a new preliminary expert affidavit. The trial court denied Muniz’s request for additional time and granted CHC’s motion to dismiss. Muniz appealed.
I will admit I have a soft spot for those in the medical field, especially physicians. My father-in-law has been a pediatrician for almost 45 years and is passionate about the care he provides. He is also genuinely concerned about his patients’ welfare and that they are comfortable with him.
One of the things my father-in-law hates about practicing medicine is the onslaught of frivolous medical practice claims and the cost of malpractice insurance. He is painfully aware not all doctors provide the same level of care he does. He is also very aware there are genuine cases of medical malpractice and those doctors should have their licenses stripped. The way he sees it, the high cost of insurance is the price he pays to make sure children get a good head start in life.
CONSTRUCTION DEFECT – CALIFORNIA SUPREME COURT RULES REGARDING PRE-LITIGATION COMPLIANCE WITH THE RIGHT TO REPAIR ACT
McMillin Albany LLC v. Superior Court 2018 WL 456728 California Supreme Court (Opinion Published January 18, 2018)
Plaintiffs sued developer and general contractor McMillin Albany LLC in 2013 for numerous construction defects in 37 single-family homes which were built after January 2003. Plaintiffs’ common law causes of action included claims for negligence, strict product liability, breach of contract, breach of warranty, and a statutory claim for violation of the construction standards set forth in Civil Code § 896. Defendant requested Plaintiffs agree to a stay of the litigation so the parties could proceed through the informal process contemplated by The Right to Repair Act, Civil Code, §§ 895–945.5. Plaintiffs refused the request and the trial court denied the motion for stay, relying on Liberty Mutual Ins. Co. v. Brookfield Crystal Cove LLC (2013) 219 Cal.App.4th 98, 163 Cal.Rptr.3d 600.
The Arizona Supreme Court recently issued an opinion clarifying the process for challenging the qualifications of expert witnesses in medical malpractice cases. The Court held a defendant may move for summary judgment based on a proposed expert’s lack of requisite qualifications under A.R.S. §12-2604 without first challenging the sufficiency of the expert affidavit under A.R.S. §12-2603. The Court further held an expert is unqualified to testify on standard of care if she did not engage in active clinical practice or teaching during the year immediately preceding the injury.
In a published opinion filed on July 31, 2017, the Fourth District Court of Appeal, Division One, held in a 2-1 ruling an arbitration agreement between a 24-hour skilled nursing facility and deceased resident was enforceable in a lawsuit filed on behalf of the heirs. Baker v. Italian Maple Holdings, (2017) 13 Cal.App.5th 1152. The appeal was filed after the trial judge denied the defendant’s petition to compel arbitration in reliance on a 2009 ruling of the Second District Court of Appeal, Division Seven, in Rodriguez v. Superior Court (2009) 176 Cal.App.4th 1461. The conflict arose from the interpretation of Code of Civil Procedure Section 1295(c) which requires inclusion of a clause which allows a patient to rescind a binding arbitration agreement contained in a contract for medical services within 30 days of signature by the patient.