Tennessee Medical Malpractice Law Blog

Frank Thomas, the former White Sox first baseman and designated hitter, has filed a medical negligence claim against two orthopedic doctors who were hired by the Sox. According to SI.com, the suit claims the White Sox doctors misdiagnosed the Big Hurt's broken foot as a bruise. Thomas continued playing, leading to a second bone break and his "eventual departure" from the team.

On a completely separate note... Go White Sox.

Over on our firm's Tennessee Business Litigation blog, James Streett posted about the admissibility of expert testimony in diversity cases. The leading case that he points to is a Sixth Circuit Court of Appeals case dealing with competency of an expert witness in a diversity case applying the Tennessee Medical Malpractice Act, Legg v. Chopra. A good case to keep in mind if you've got an out-of-state patient and the potential for filing in or removal to federal court.

The Ohio Supreme Court has allowed recovery of costs of pregnancy and birth-related expenses of an unhealthy child born following negligent genetic counseling or a negligent failure to diagnose a fetal defect or disease. Although the decision is nominally for the plaintiff, the right given in a hollow one because, all things considered, the birth-related expenses will be relatively small and the more significant expenses - the extra costs of raising a disabled child - cannot be recovered.

The case is what is known as a "wrongful birth" case; i.e. one in which "the parents of an unhealthy child born following negligent genetic counseling or negligent failure to diagnose a fetal defect or disease bring suit for the costs of having to raise and care for an impaired child, arguing that they were wrongfully deprived of the ability to avoid or terminate a pregnancy to prevent the birth of a child with the defect or disease.”

However, Court denied the claims of the parents for other economic losses and for emotional damages claimed by the parents because of having to raise an impaired child, saying that they were not a proximate cause of the defendant's negligence. More specifically, "consequential noneconomic damages require a valuation of being versus nonbeing. A judge or jury would be asked to weigh the emotional and physical tolls resulting from raising and supporting a disabled child versus not having a child at all. No such damages are recoverable."

The Court made it clear that it was not passing judgment on abortion. It said: "It is important to note that the issue of whether abortion should be considered a proper course of treatment during prenatal care is not before this court. Regardless of the multitude of moral, religious, policy, and legal arguments inherent in the abortion debate, the holding today merely recognizes that medical negligence during prenatal care that impacts the parents’ ability to decide whether to continue the pregnancy may be actionable."

The case is Schirmer v. Mt. Auburn Obstetrics & Gynecologic Assoc., Inc.; read it here.

Go to this post at Dayontorts to see a summary of a new case on whether a defendant is entitled to a jury instruction that provides that he has a right to assume that other health care providers will excercise due care.

The Ninth Circuit Court of Appeals recently reversed a defense verdict in a medical malpractice case against a neurosurgeon, Jerden v. Amstutz. The plaintiff claimed that the neurosurgeon should have properly diagnosed the plaintiff as having multiple sclerosis rather than a brain tumor requiring neurosurgery.

During the trial, the plaintiff called the defendant doctor's surgical assistant. On cross, the defendant asked the assistant how he viewed the same MRA report. The plaintiff objected, but the trial court allowed the testimony as mere fact testimony. The Ninth Circuit ruled that this was not fact testimony, but expert opinion testimony - it was based on "scientific, technical, or other specialized knowledge" and should not have been admitted unless a sufficient foundation for the expert testimony was laid. On the basis of this and another expert evidentiary decision, the Ninth Circuit reversed the defense verdict and remanded for a new trial.

Under Tennessee law, you would also object to the relevance of the testimony given the Tennessee Supreme Court's holding in George v. Alexander. Even if a sufficient foundation was laid for the assistant to testify about his own opinion, and even if that opinion was shown to be relevant to the standard of care of a physician in the defendant doctor's specialty, George should still preclude the evidence under Tennessee law.

The federal Emergency Medical Treatment and Assisted Labor Act -- a law designed to prohibit hospitals from engaging in a practice known as "patient dumping" -- applies to all patients regardless of income, according to a federal judge in New Jersey.

In an opinion in Love v. Rancocas Hospital, U.S. District Judge Joseph E. Irenas of the District of New Jersey said that while the circuits were split on the issue "the better view is represented by those courts which hold that EMTALA applies regardless of the patient's ability to pay or whether the patient has health insurance." The Judge also explained EMTALA requires a hospital to provide "for such further medical examination and such treatment as may be required to stabilize the medical condition," and prohibits a hospital from discharging a person with an emergency medical condition before the patient is stabilized.

The Sixth Circuit had ruled many years ago that EMTALA applies to all patients (Cleland v. Bronson Health Care Group, 917 F.2d 266, 270 (6th Cir. 1990)), but this opinion reminds us that this cause of action is available in appropriate cases.

Read an article about this opinion here. Read the opinion itself here.