Pneumonia in the News, in the Law, But Hopefully Not in Your Lungs

Whether your travels have taken you to the Research Triangle of North Carolina or Round Rock, Texas, or you stayed at home reading the business news or listening to the county music station you have probably heard a lot about pneumonia lately.

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What Is Discoverable from a Hospital’s Quality Assurance Process?

When medical malpractice allegedly occurs in a hospital setting, the plaintiff often seeks to discover information related to the hospital’s quality assurance process. While courts have been reluctant to shield incident reports from discovery (See the Medical Law Perspectives May 6, 2015, Blog Hospital Incident Reports Under Scrutiny Again; In Camera Review Found Necessary To Determine Discoverability), external peer review reports have been protected.

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Alzheimer’s Disease Presents an Array of Legal Issues

Few medical conditions raise as wide a variety of legal issues as Alzheimer’s disease, an irreversible, progressive brain disorder that slowly destroys memory and thinking skills and, eventually, the ability to carry out the simplest tasks and respond to the environment. Because of the high prevalence of Alzheimer’s disease—as of 2013, as many as five million Americans were living with Alzheimer’s disease and this number is projected to rise to 14 million by 2050—it is in every lawyers’ best interest to learn about the growing field of, for lack of a better term, Alzheimer’s jurisprudence.

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Hospital’s Policies, Procedures Not Discoverable in Vicarious Liability Suit

In most medical malpractice cases related to treatment in a hospital setting, a fairly standard interrogatory posed by plaintiffs to hospitals is a request for the production of any internal policies and procedures in effect at the time of the alleged malpractice related to the area of practice. Whether the policies and procedures will be found discoverable varies considerably by jurisdiction.

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Problems of Proving a Lyme Disease Diagnosis

Lyme disease is the most commonly reported vector-borne illness in the United States. A new CDC report found that the number of counties in the northeastern states identified as having a high incidence of Lyme disease increased by over 320% between 1993 and 2012.

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Blaming the Victim: Challenges of COPD Treatment and Subsequent Lawsuits

Chronic obstructive pulmonary disease (COPD) is a group of progressive respiratory conditions, including emphysema and chronic bronchitis, characterized by airflow obstruction and symptoms such as shortness of breath, chronic cough, and sputum production. A recent Centers for Disease Control and Prevention study on COPD in the United States found that COPD was more common among current smokers than former smokers or never smokers.

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Hospital Can Be Liable for Employee Following Instructions from Non-Employee, Private Attending Physician

In New York, there are two situations where a hospital may be held liable for the acts of a hospital employee who was following instructions given by a private attending physician who is not a hospital employee: (1) the hospital employee committed an act of negligence independent of the physician’s instructions, or (2) the attending physician’s orders were contraindicated by normal practice such that ordinary prudence required inquiry into the correctness of the attending physician’s orders. Continue reading

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Failure to Diagnose Cancer Claims Face Hurdles, Especially in New York

People who are diagnosed with cancer bring lawsuits for medical malpractice and negligence just as patients with other types of medical injury do. Failure to diagnose claims are brought by people who eventually are diagnosed with a disease, including cancer.

Failure to diagnose claims face all of the same hurdles as any other medical malpractice claim, including issues of physician judgment, reasonableness of awards, and limitations barring an action.

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Jury Instruction in Product Liability Case That Violation of the FDCA is Negligence Per Se; Preemption Considerations

Diverging from other courts’ decisions in 2014, the Ninth Circuit in 2015 held that a state law failure to warn claim was not preempted by the Medical Device Amendments of 1976 (MDA) to the Food, Drug & Cosmetics Act (FDCA) (therefore, a jury instruction on negligence per se was proper). This decision runs counter to a California appellate court decision that held the FDCA preempted a state law failure to warn claim and a Third Circuit decision which held that the FDCA preempted state law design defect claims. Continue reading

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Hospital Incident Reports Under Scrutiny Again; In Camera Review Found Necessary To Determine Discoverability

Courts have been reluctant to shield incident reports from discovery. In Hammond v. Saini, 766 S.E.2d 590 (N.C., Dec 19, 2014), the North Carolina Supreme Court held that documents created by the county health authority after a surgical fire at a county facility were not shielded from discovery. The court emphasized the importance of the trial court’s in camera review to sort protected information from discoverable information. “In most medical malpractice cases related to treatment in a hospital setting, a fairly standard interrogatory posed by plaintiffs to hospitals is a request for the production of any incident reports created in relation to the plaintiffs’ treatment. Courts have continued to resist advocates of protecting hospital incident reports from discovery.” See the Medical Law Perspectives March 2, 2015, Blog: Discovery of Hospital Incident Reports: Prepare for In Camera Review; Discovery Likely. Continue reading

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