If you have the time, here are a few opinions of interest from the past few weeks for personal injury attorneys. If you don’t have the time, I have tried to provide a quick summary of the relevant facts and law.
- Rosenfeld v. Oceania Cruises: This is the classic slip and fall case that, honestly, my firm never would have taken. Plaintiff slipped and fell on a wet ceramic surface while walking to the bathroom at the dinner buffet on an Oceania Cruises cruise ship. Worse still, the Plaintiff did not really remember at deposition what type of floor she was on when she fell. Plaintiff brought in an expert from Austria (seriously, Austria) who testified that the tile Plaintiff’s lawyers claimed she slipped on had an inadequately low coefficient of friction. Really, just the worst imaginable case. Still, the 11th Circuit overturned the district court and found that this expert’s opinion should survive a Daubert challenge. So this case goes to the jury despite its Swiss cheese holes.
- Fritch v. University of Toledo College of Medicine: This is a brachial plexus medical malpractice case. Plaintiff’s expert testified that there were four possibilities what happened: (1) there was some traction on the nerves during surgery; (2) there was bleeding that no one saw (or couldn’t see) and they pulled traction on the nerve; (3) they stretched the nerve by stretching the arm; and/or (4) a scalene block injection caused the brachial plexus. Plaintiff’s doctor held up on direct examination, testifying that it was more likely than not that the injuries occurred because the surgeon negligently stretched the nerve in surgery from moving the arm or retracting on the retractor. The doctor’s experts testified as to the other possibilities of the harm that were possible but did not say that any of those likely were the cause. Plaintiff appealed to the Ohio Supreme Court, arguing that the doctor’s experts should not be able to testify about causes, only those that are more probable than not. The court rejected this claim. A Maryland appellate court would as well because there is no requirement that the defendant’s expert witness is required to state an alternative possible cause in terms of probability). Plaintiff also made a res ipsa claim which failed (although there are viable res ipsa malpractice claims in Maryland in very limited circumstances.)
- Hirsch v. CSX Transportation: The Sixth Circuit rejects a medical monitoring claim because of the unlikely possibility of injury.
- Smith v. Johnson & Johnson: This is a vaginal mesh implant suit against Johnson & Johnson in Mississippi. The Plaintiff underwent a total abdominal hysterectomy and was diagnosed with vaginal vault prolapse. This is a tough condition for women. A portion of the Plaintiff’s upper vagina fell, protruding from the vaginal opening. She chose an abdominal sacrocolpopexy which involves a surgical incision in the abdomen and then using mesh to attach the vagina to the front of the backbone. The surgeon used an Ethicon vaginal mesh which is a sterile synthetic nonabsorbable surgical material. But as many women have learned, these vaginal mesh implants do more harm than good. The plaintiff was diagnosed with vaginal mesh erosion and needed surgery to remove it. The plaintiff brought a claim against Ethicon, among others, for the defective vaginal mesh implant. The defendants sought summary judgment, arguing one key point: Plaintiff did not show that the Defendants were given an adequate warning that it would have made a difference.Here, the Mississippi District Court judge found that the Plaintiff did not establish that an adequate warning would have convinced the treating physician not to prescribe the product for the plaintiff. (The Southern District of Mississippi apparently does not post its opinions online; I linked above to the Drug and Device Law Blog’s gleeful recitation of the facts. If you can ignore the whining – “plaintiffs’ lawyers are always cut all the breaks and we are not,” – and the pandering to Mississippi judges and related tripe, it is an excellent post.
Speaking of res ipsa in the Ohio case above, Los Angeles County has settled a malpractice lawsuit with a patient at Harbor-UCLA Medical Center who claimed that one of her blood vessels was punctured by a catheter tip during a medical procedure. The woman suffered further complications from the injury but was released a few days later.
This is from the article I read:
County officials said they believed they cared for the patient properly but would be hampered in court by the Res Ipsa Loquitur doctrine. The doctrine says an entity is presumed to be negligent if it had “exclusive control of whatever caused the injury even though there is no specific evidence of an act of negligence, and without negligence the accident would not have happened,” according to the website law.com.
Res ipsa loquitur in this case? What on earth are they talking about? I’m not saying res ipsa can never be applied in a malpractice case (read Orkin v. Holy Cross Hosp, Inc., 318 Md. 429 (1990) but that’s a pretty big matzah ball to leave hanging out there. You are the Los Angeles Times. Tell us a little more than that.