Frankel v. Deane (Md. 8/25/2022), https://www.mdcourts.gov/data/opinions/coa/2022/43a21.pdf, illustrates the legal issue that is the title of this post. It also illustrates what is technically a legal issue (a trial court’s abuse of discretion in excluding expert medical testimony), but is actually a practical issue that every trial lawyer has to deal with sooner or later, even multiple times in the course of a long career: the nightmare trial judge. I will discuss the legal issue first.
In Ruan v. United States (No. 24-1410, 6/27/22), https://www.supremecourt.gov/opinions/21pdf/20-1410_1an2.pdf, the Court addressed the mens rea requirement of the Controlled Substances Act as applied to physicians. From the syllabus:
This is an obstetrical malpractice case. A caesarean section was delayed for several hours due to the negligence of both the treating physicians and the nurses, as result of which the baby sustained significant hypoxic brain damage during labor and was born with cerebral palsy. The plaintiff mother, suing on behalf of her child, settled with the physicians and proceeded to trial against the hospital that employed the nurses. Rodriguez-Valentin v. Doctors’ Center Hospital, No. 20-2093 (1st Cir.
That’s an unkind title, I know. But really, when the plaintiff’s attorney submitted a pharmacist’s affidavit in opposition to a physician’s motion for summary judgment (which was supported by a physician’s affidavit), what did he think was going to happen?
When I was a practicing trial lawyer, a long time ago in a galaxy far, far away (okay, so it was actually Rhode Island), our state supreme court recognized lack of informed consent as a basis for liability in medical malpractice cases. In doing so, it held that the risks that must be disclosed are those that a reasonable patient would have considered in deciding whether or not to undergo the procedure in question. Of course, expert testimony is necessary to establish what all of the material risks (disclosed and undisclosed) of the procedure are, what the alternative treatments are, etc.
Revisiting an old blog is often a useful exercise. For us at Vident, this particular post is always relevant, because our business is providing experts, and we’re always focused on the “why” as well as the “how” when we promote our services. So if you haven’t seen this one, or even if you have, it’s a useful reminder of why we do what we do and how completely you can rely on us to do it right.
I’ve previously written about the surprising (to me) number of reported cases in which “the plaintiff failed to provide an adequate expert opinion on causation during discovery, resulting in summary judgment for the defendant.” See https://www.videntpartners.com/blog/2020/product-liability-defendant-wins-summary-judgment-because-plaintiff%E2%80%99s-expert-offered-no and previous blog posts cited therein.
Jeff Catalano, a longtime client of ours, is one of Massachusetts’s leading medical malpractice / products liability / personal injury attorneys. He recently wrote this article for his firm’s occasional email newsletter, and he has graciously consented to our request to reprint it here.
One Important Immunity Achieved: Healthcare Providers from Lawsuits
By Jeffrey N. Catalano