Tag: Res Ipsa Loquitur

MISTAKE ≠ MALPRACTICE

astein 3 Comments

By Alex Stein

Every lawyer with some experience in medical malpractice knows that a doctor’s mistake in diagnosing or treating a patient does not necessarily amount to negligence. Doctors sometimes make mistakes that are unavoidable or just reasonable, given the constraints under which they treat patients. For that reason, a patient would be ill-advised to sue her doctor on the mistake theory. Doing so could be a very serious mistake.

Valence v. Jefferson Parish Hosp. Dist. — So.3d —-, 2013 WL 5849724 (La. App. 5 Cir. 2013), provides a textbook illustration of that point. Read More

Teamwork as Malpractice

astein 7 Comments

By Alex Stein

A team of doctors employed by the same hospital had failed to properly monitor a patient after his heart surgery in order to rule out a well-known neurological complication. The patient subsequently developed an irreversible neurological disorder, and a suit ensued.

The patient’s expert identified the team’s omission as malpractice. However, he was unable to attribute the omission to any specific member of the doctors’ team. Under the common law doctrine of vicarious liability, because the omission could be attributed to the team as a whole, the patient could still win his suit against the hospital. This doctrine holds that a hospital employing a team of doctors assumes vicarious liability for the team’s malpractice even when there is no way to single out the defaulting team member.

Washington’s appellate court, however, has decided that this doctrine was inapplicable because medical malpractice is a statutory, rather than common law, tort under Washington law.  Grove v. Peace Health St. Joseph Hospital, — P.3d —-, 2013 WL 5786888 (Wash.App. Div. 1 2013). Read More