Medical malpractice -- Birth-Related Neurological
Injury Compensation Act -- Although trial court erred by concluding that
injuries allegedly sustained by mother during childbirth were compensable under
Florida Birth-Related Neurological Injury Compensation Plan, dismissal of
action was proper because plaintiffs' counsel failed to comply with statutory
presuit requirements
ROCK POLLOCK, SR. and SHAWNA M. POLLOCK, Individually and as
Parents and Natural Guardians of R.P., a minor, Appellants, v. LAURA DANNER,
C.N.M.; GULF COAST OBSTETRICS & GYNECOLOGY, LTD. f/k/a CORCORAN, EASTERING
& DOYLE-VALLERY, LTD.; and SARASOTA COUNTY PUBLIC HOSPITAL DISTRICT d/b/a
SARASOTA MEMORIAL HOSPITAL, Appellees. 2nd District.
Pre-suit Requirements: MAINE HIGH COURT VACATES $420K
VERDICT FOR UNFULFILLED PRE-SUIT REQUIREMENTS, Levesque v. Cent. Me. Med. Ctr.,
15 No. 5 Westlaw Journal Nursing Home 9, Westlaw Journal Nursing Home September
7, 2012
The Maine Supreme Judicial Court has vacated a $420,000 jury
award in a bedsore case because the plaintiff presented trial evidence on a
theory of liability that he did not present to a pre-litigation screening
panel. State law required Paul V. Levesque to notify hospital defendant that he
planned to argue it was responsible for a nonemployee physician's alleged
negligence and to present the claim to a pre-suit screening panel, the high
court said.
Arbitration Agreement: FLORIDA ASSISTED LIVING FACILITY WINS
APPELLATE COURT BID FOR ARBITRATION, Emeritus Corp. v. Pasquariello, 15 No. 5
Westlaw Journal Nursing Home 2, Westlaw Journal Nursing Home September 7, 2012
The operator of an assisted living facility in Florida has
won reversal of a court order that said a deceased resident's power of attorney
did not authorize his wife to enter into an arbitration agreement on his
behalf. The power-of-attorney form explicitly gave Kathleen M. Pasquariello
absolute power over claims and litigation for her husband, including the
authority to submit to arbitration, the 2nd District Court of Appeal said.
Arbitration Agreement: KENTUCKY HIGH COURT INVALIDATES
RESIDENT'S ARBITRATION AGREEMENT, Ping v. Beverly Enters., 15 No. 5 Westlaw
Journal Nursing Home 1, Westlaw Journal Nursing Home September 7, 2012
The Kentucky Supreme Court has ruled that an arbitration
agreement signed by a nursing home resident's daughter is unenforceable,
reinstating a negligence and wrongful-death action brought by the mother's
estate. Donna Ping had Alma C. Duncan's power of attorney, but her authority to
make health care and financial decisions for her mother did not extend to an
optional arbitration agreement that waived Duncan's right of access to the
courts, the justices unanimously held.
Engle Progeny (Statute of Limitations): SMOKER'S HEALTH
PROBLEMS MANIFESTED AFTER ENGLE CUTOFF DATE; LAWSUIT TOSSED, Castleman v. R.J.
Reynolds Tobacco Co., 27 No. 26 Westlaw Journal Tobacco Industry 5, Westlaw
Journal Tobacco Industry September 7, 2012
A Florida appeals court has rejected a lawsuit filed against
cigarette maker R.J. Reynolds Tobacco Co., finding that a smoker's heart and
lung conditions manifested themselves after a 1996 cutoff date specified in the
landmark Engle class action. The 1st District Court of Appeal said the smoker
did not link his medical problems to his smoking history until 1998 -- two
years after the deadline for membership in the class action expired.
Cypher Stent: N.J. SUPREME COURT FINDS STENT DEATH SUIT
UNTIMELY, FEDERALLY PREEMPTED, Cornett v. Johnson & Johnson, 19 No. 15
Westlaw Journal Medical Devices 9, Westlaw Journal Medical Devices September
10, 2012
New Jersey's highest court has affirmed the dismissal of a
consumer fraud and design defect suit against Cordis Corp. by a Kentucky woman
who says her husband died from a blood clot that formed near a Cypher
drug-eluting stent several months after its implantation. All of Vonnie
Cornett's claims against Cordis and parent Johnson and Johnson are untimely
under Kentucky law and, secondarily, even if they were timely, most are
preempted by Riegel v. Medtronic Inc., 552 U.S. 312 (2008)
Graphic Warnings: D.C. FEDERAL APPEALS COURT SNUFFS OUT
FDA'S GRAPHIC WARNINGS, R.J. Reynolds Tobacco Co. v. FDA, 27 No. 26 Westlaw
Journal Tobacco Industry 1, Westlaw Journal Tobacco Industry September 7, 2012
A District of Columbia federal appeals panel has ruled that
the government went too far when it mandated large graphic warnings on packs of
cigarettes. In a split ruling, the District of Columbia U.S. Circuit Court of
Appeals determined that the warnings violate the tobacco companies' First
Amendment rights. The court also found that the government fell short in
proving that the warnings would lead to reduced smoking rates.Judge Judith W.
Rogers dissented
Light Cigarettes (Class Certification): LIGHT-CIGARETTE
CLASS DECERTIFIED BY N.H. HIGH COURT, Lawrence v. Philip Morris USA, 27 No. 26
Westlaw Journal Tobacco Industry 2, Westlaw Journal Tobacco Industry September
7, 2012
Finding that individual issues predominate, New Hampshire's
highest court has decertified a class-action lawsuit alleging Marlboro Lights
cigarettes are overvalued because they do not offer any added health benefits
than traditional cigarettes. The state Supreme Court panel unanimously held
that "the information about lights to which individual class members were
exposed, and what they believed, are individual issues that will predominate
over common ones.
Legislation: BILL ON MEDICAL COST RECOVERY DIES IN
CALIFORNIA ASSEMBLY, 8 No. 8 Westlaw Journal Medical Malpractice 5, Westlaw
Journal Medical Malpractice September 14, 2012
The California General Assembly has struck down a bill that
would have allowed tort plaintiffs whose medical care was covered by a
capitated, or fixed, payment health plan to recover damages for the
"reasonable and necessary value" of their medical costs. The latest
version of Senate Bill 1528 also would have allowed the state's counties to
recoup the cost of a plaintiff's care from a judgment, settlement or
arbitration award. The Senate voted 43-13 to reject the measure Aug. 31
Medical Malpractice (Joint Liability): CALIFORNIA HIGH COURT
ABANDONS SETTLEMENT RELEASE RULE, Leung v. Verdugo Hills Hosp., 15 No. 5
Westlaw Journal Nursing Home 7, Westlaw Journal Nursing Home September 7, 2012
The California Supreme Court has abandoned a long-standing
rule that one defendant's settlement releases other joint tortfeasors from
liability, in a case involving a $96 million award for an infant's severe brain
damage. The high court unanimously held that the best way to apportion
liability in a negligence action involving a settlement not made in good faith
is to credit the settlement amount against the total damages and find the
non-settling defendants liable for the remainder.
Medicare Fraud: HOME HEALTH CARE AGENCY OPERATOR PLEADS
GUILTY IN $42 MILLION SCHEME, United States v. Escalona, 15 No. 5 Westlaw
Journal Nursing Home 8, Westlaw Journal Nursing Home September 7, 2012
The owner of a home health care agency in Miami has pleaded
guilty to federal charges for his role in a conspiracy to submit $42 million in
false claims to Medicare. In a plea agreement filed in the U.S. District Court
for the Southern District of Florida, Eulises Escalona acknowledged that he
faces up to 10 years in prison and fine of $250,000.In return for the guilty
plea on one charge of conspiracy, the government agreed to seek dismissal of
the remaining six health care fraud charges
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