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Medical Law Cases of Note.

TX: Alleged Failure to Report CT Scan Results: Motions for Protective Orders Denied


CASE FACTS: Cruz Reyes filed a medical malpractice suit against Nighthawk Radiology Services, L.L.C. (Nighthawk) and Dr. Alex Sinelinkov (Dr. Alex), alleging that they were negligent in reporting the results of her CT imaging study. Cruz sought copies of the records of Midland Memorial Hospital, which had the defendants' reports on the CT scan performed on her. Cruz filed a Notice of Her Intention to Take an Oral Deposition by Written Questions propounded to Midland Memorial Hospital (MMH) The defendants filed a motion to quash her Notice and moved that the trial court issue protective orders. The trial court denied the defendants' motions. The defendants filed a motion for an interlocutory appeal to allow an appellate court to rule on whether or not the trial court had erred in denying their motion. After the trial court conducted a hearing on the defendants' motion, it entered an order denying the defendants' motion. The defendants moved for an interlocutory appeal, which was granted by the trial court.

COURT'S OPINION: The Court of Appeals of Texas affirmed the order of the trial court. The court held, inter alia, that the trial court had not abused its discretion in denying the defendants' motions to quash and for protective orders. The court noted that as the party asserting the fact that the documents were privileged, the defendants had the burden of proof or showing that they were privileged and that thus, the trial court had not erred in denying the defendants' motions. No testimony was presented at the hearing on the motions. This, the court observed was diametrically opposed to the State's rules of Civil Procedure, which provide in pertinent part: The party seeking to avoid discovery must present any evidence necessary to support the objection or privilege either by testimony at the hearing or by affidavits served on opposing parties. ..."

The defendants failed to meet the requisite standards as set forth in the rules. The court further observed that even if a an attachment to the defendants' motions was intended to meet the requirements of the rules, the attachment was unsigned, contained no jurat, thus, falling far short of even remotely meeting the requirements of an affidavit. Accordingly, the court affirmed the ruling oldie trial court on the defendants' interlocutory appeal and remanded the case. Editor's Note: One of the most basic and fundamental rules of the practice of law is that attorneys are bound by the Rules of Civil Procedure in all civil cases. It is almost inconceivable that the attorneys representing the defendants in this case failed to recognize and/or attempt to follow those rules. This is noteworthy in view of the fact that the issue at hand was the sole basis for the defendants' interlocutory appeal. Nighthawk Radiology Services, I:, I,.C.V. Reyes, 11-14-00302-CV(3/15/2012)-TX

TN: Mom Blinded by High B/P During Birth: Court Follows Abandonment of 'Locaility Rule'

CASE FACTS: On January 7, 2007, Vivian Kennard filed a complaint for medical malpractice against Dr. Arthur M. Townsend, IV and Associates Obstetrics & Gynecology, P.C. (Defendants). Vivian alleged that the defendants had committed medical malpractice against her during the birth of her child in June of 2004. Specifically, Vivian alleged that the defendants failed to properly manage her blood pressure during the delivery, thus causing her permanent blindness in both eyes. The Defendants filed a motion for summary judgment on the grounds that Vivian had failed to establish, through expert proof, that Dr. Townsend deviated from the recognized standard of acceptable professional care in treating her. Vivian filed the Affidavit of Dr. Richard McLaughlin, which, after summarizing his education and extensive experience in practicing Obstetrics and Gynecology to qualify him as an expert, in relevant part stated: that. the defendants had failed to meet the applicable standard of care and that Vivian's blindness was the direct and proximate result of the breach of the standard olcare. The Defendants filed a motion in limine, that Dr. McLaughlin's failed to meet the standards for admission of expert testimony under the "locality Rule." The trial court granted the Defendants' motion that Dr. McLaughlin's testimony was not admissible under the Locality Rule. The trial court then granted the Defendants' motion pending motion for summary judgment, since Vivian had no other expert testimony to present to the court. Vivian appealed.

COURT'S OPINION: The Court of Appeals of Tennessee vacated the order of the trial court. granting the Defendants' motion in I imine, to exclude Dr. McLaughlin's testimony and also vacated the order granting summary judgment in favor of the Defendants. The case was remanded for further proceedings consistent with the court's opinion. The court noted that this case came before the court before the Tennessee Supreme Court rendered its decision in Shipley, in which the Supreme Court of Tennessee held that it would no longer rely on the Locality Rule to determine whether or not a witness proffered as an expert witness was required to show that he or she was specifically qualified by his or her experience and expertise in the particular geographical locality wherein the alleged medical malpractice occurred. The court noted that stated by a judge alluding to the Shipley case, "under Shipley, it is arguable that a medical expert such as [)r. [McLaughlin], despite never having practiced medicine in Tennessee, could become competent to testify about the standard of acceptable professional practice in [Memphis], and not just in a community that is similar to [Memphis]." Kennard v. Townsend, W2011-01843-CO-RIM-CV-TNCIV (3/2/2012)-TN

Meet the Editor & Publisher: A. David Tammellero, JD. Is a nationally recognizes authority on health care law. Practicing law for over 40 years, he concentrated in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical nursing and hospital law throughout the United states. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law' Regan Reports, has legal articles have been published in the most prestigious health law journals. A prolific writer his thousands of articles as well as his achievements as an attorney and lecturers, have won him recognition in Martindale Hubbell's Bar Register of Preeminent Lawyers. Marquies Who's who in American Law. Who's who in American and who in Who in the World.
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Author:Tammelleo, David A.
Publication:Medical Law's Regan Report
Article Type:Case overview
Geographic Code:1U6TN
Date:Jun 1, 2012
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