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Medical law cases of note.

FL: Mr Ducts in Dr.'s Office Treated With Poison: Estate Failed to Name Dr. in Wrongful Death Suit

CASE FACTS: This case involved a suit brought under Florida's Uniform Contribution Among Tortfeasors Act (Contribution Act), which involved an underlying wrongful death suit. The Estate of Robert Cardini sued Trapper John Animal Control, Inc. (Trapper John), for negligently spraying rat poison into an air duct which was connected to the medical offices of Dr. Lawrence Gilliard. The decedent, who was a patient of Dr. Gilliard's, had been treated by him before succumbing to the effects of the rat poison. The decedent's estate did not bring suit against Dr. Gilliard. However, after Trapper John settled the Estate's claim against him for $1million, and despite the fact that Dr. Gilliard was not sued by the decedent's estate, Trapper John filed suit against Dr. Gilliard under the Contribution Act. Dr. Gilliard filed a motion for summary judgment. After a hearing, the trial court granted Dr. Gilliard's motion for summary judgment. Trapper John appealed.

COURT'S OPINION: The Florida Court of Appeals, Fifth District, affirmed the judgment of the trial court in favor of Dr. Gilliard. The court held, inter alia, that although the Contribution Act gives a settling tortfeasor a right of contribution against other joint tortfeasors, that right is limited to situations where there are two or more joint tortfeasors wherein a recovery against any one of them even though judgment has not been entered against all or any one of them. However, the court noted that this is subject to a caveat: " A tortfeasor who enters into a settlement with a claimant is not entitled to recover contribution from another tortfeasor whose liability for the . . . wrongful death is not extinguished by the settlement . ." The court found that the trial court properly found the release settled only Trapper John's liability and left open the estate's right to pursue any claim for medical malpractice against Dr. Gilliard. While the release could have included the release of Dr. Gilliard and any other persons or entities designated, it failed to do so. Further, the court found that it was not the intent of the parties to release any person or entity other than Trapper John. The court noted that: "[C]lear and unambiguous terms of a release may not be changed upon a claim of unilateral mistake where that mistake results sole from the want of due care and diligence. ..."

Editor's Note: Physicians should exercise due care whenever having any work done in their offices, lest a cause of action arise against them, whether as a joint tortfeasor or otherwise. The physician in this case was fortunate that he was not named as a joint tortfeasor in the original suit, for if he had, he might have been subject to contribution under the Contribution Act. Further, had the 'release' named him, he might very well have had to defend the suit for contribution under the Contribution Act. Trapper John Animal Control, Inc. v. Gilliard, 5D10-1879 FLCA (8/31/2012)-FL

TN: Pt. Voluntary Nonsuits Drs for Med-Mal: Drs Sue Pt. for Malicious Prosecution, Etc.

CASE FACTS: In April 2005, Tracy Allain was admitted to Vanderbilt University Medical Center (VUMC) for placement of a new port-a-cath. After the procedure, a VUMC physician informed Tracy that he had observed a guide wire in a vein leading to her heart. The physician believed that the wire had been left in Tracy's body during a previous port-a-scan. On April 10, 2006, Tracy filed a complaint in the Circuit Court for Williamson County against Williamson Medical Center, Dr. Elliot Himmelfarb, and Dr. Douglas York, alleging that they were negligent in leaving a guide wire in her vein during a December 2004 procedure. Both doctors filed an answer to the complaint alleging comparative fault against an unnamed third party and denying liability. In June 2006, a VUMC physician informed Tracy that VUMC was responsible for the presence of the guide wire. Tracy filed a complaint alleging medical malpractice against VUMC on June 23, 2006, and reached a settlement in that case on January 24, 2007. On July 14, 2008, Tracy filed a notice of a voluntary nonsuit of the complaint against Williamson Medical Center and Drs. Himmelfarb and York pursuant to Tennessee Rules of Civil Procedure. The trial court entered an order dismissing the case without prejudice on July 17, 2006. One year later, Drs. Himmelfarb and York filed a complaint against Tracy alleging that her prior lawsuit against them constituted malicious prosecution and abuse of process. Tracy filed an answer denying the allegations and a motion for summary judgment. The trial court denied her motion for summary judgment on the malicious prosecution claim. The trial court denied Tracy's motion for interlocutory appeal. Tracy filed an application for extraordinary appeal. The Court of Appeals granted the application. The Supreme Court granted permission to appeal.

COURT'S OPINION: The case was a case of first impression for the Supreme Court of Tennessee, which held, inter alia, that a voluntary nonsuit taken according to the Tennessee Rules of Civil Procedure is not a termination on the merits for the purposes of a malicious prosecution claim and affirmed the Court of Appeals. The court determined that the majority of states that have addressed the issue have held that a voluntary nonsuit can be a favorable termination on the merits for the purposes of malicious prosecution. This is also the view stated in The Restatement of Torts. However, the court adopted a minority view, concluding that a 'voluntary nonsuit' is not a favorable disposition. Accordingly, the court reversed the Court of Appeals and remanded the case to the trial court for entry of judgment in favor of Tracy on the malicious prosecution claim and for a final determination on the abuse of process claim. The court held that voluntary nonsuit 'without prejudice' is not a favorable termination. Himmelfarb v. Allain, W1210-0241-SC-S10-CV TNSC--S.W. 3d (8/28/2012)-TN

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates 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 Slates. In addition to his writings as Editor of Medical Law's. Parsing Law's A Hospital Law's Regan Reports, his 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 lecturer, have won him recognition in Martindale-Hubbell "s liar Register of Preeminent Lawyers, Marquis Who s Who in American Law; Who's Who in America and Who s Who in the World.


A. David Tammelleo JD Editor & Publisher
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Author:Tammelleo, A. David
Publication:Medical Law's Regan Report
Date:Sep 1, 2012
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