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Verdicts

By ALM Staff | Law Journal Newsletters |
February 09, 2004

Settlement Made in Amputation Case

In the case of Gibbons v. Chhabra, a Bergen County, NJ, judge approved a $1.5 million medical malpractice settlement on Dec. 4th, 2003 for a child whose arm had to be partially amputated due to a severed artery. The injury occurred in the neonatal intensive care unit of a Hackensack, NJ, hospital where a 4-day-old baby was being cared for after his premature birth at about 30 weeks. Plaintiffs alleged that a doctor's attempt to place a long-term catheter line into the child's right armpit severed his artery. The child's arm had to be amputated below the elbow shortly thereafter. He now wears a prosthesis, which will have to be replaced as he grows. The plaintiffs alleged that the line should have been inserted in the scalp because the armpit was too risky a location. Judge Charles Walsh helped the parties reach agreement on Oct. 20, 2003. Judge Joseph Rosa approved the deal on Dec. 4, 2003, after a friendly hearing.

Sexual Misconduct Not Malpractice

A count of medical malpractice was dismissed where the plaintiff failed to allege that sexual advances by the hospital's employee were substantially related to her treatment. Heaford v. Danbury Hospital, Doc. No. CV03-0348399S (Danbury J.D., at Danbury, CT 12/3/03).

The plaintiff sued Danbury Hospital and an employee of the hospital, alleging the employee sexually abused her while she was a suicide patient in the hospital's psychiatric facilities. The employee was assigned to be with the plaintiff at all times, to assist in her treatment and to prevent her suicide. He allegedly initiated intimate relations by hugging the plaintiff and rewarding her good behavior with a kiss. After plaintiff's discharge, the employee allegedly persuaded her to come to the hospital and had intercourse with her, thus fathering a child with her. Danbury Hospital moved to strike the count alleging medical malpractice. The court granted the motion to strike because the general rule in Connecticut is that a health care provider's sexual misconduct isn't malpractice unless negligence substantially related to medical diagnosis of treatment is sufficiently shown. The plaintiff's allegations did not fit within the rule's exception.

Alternative Treatments Are Not Per Se 'Commercial Activity'

A plaintiff's complaint that her doctor violated Connecticut's Unfair Trade Practices Act (CUTPA) was dismissed due to her failure to “plead with particularity.” Parker v. Wolinsky-Friedlan, CV020470262, 2003 Conn. Super. LEXIS 3314 (12/4/03).

Plaintiff filed an 11-count complaint against defendant doctor and others claiming her multiple sclerosis was treated with unapproved experimental drugs that worsened her condition. The various counts alleged malpractice, lack of informed consent and violation of the Connecticut Unfair Trade Practices Act (CUTPA). One of the defendants, Dr. Marcie Wolinsky-Friedlan, filed a motion to strike count nine, the allegation that she violated CUTPA by engaging in the entrepreneurial activity of providing alternative medical services and products. In her motion to strike, defendant argued that plaintiff failed to state a claim, in that she had simply recast her negligence/medical malpractice claim as a CUTPA violation. Plaintiff countered that defendant engaged in an entrepreneurial enterprise by providing alternative medical products and services and that because these treatments were not recognized by the traditional medical profession, defendant should be presumed to be engaged in an entrepreneurial enterprise.

The court here noted that the practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by a medical practitioner. The fact that the defendant used holistic or alternative medicines, by itself, did not transform a medical treatment practice into a commercial enterprise. Because the plaintiff failed to plead with particularity just how the defendant's use of the alternative medical treatments constituted a commercial or entrepreneurial aspect of the defendant's medical services, her complaint failed to support a CUTPA claim.

Settlement Made in Amputation Case

In the case of Gibbons v. Chhabra, a Bergen County, NJ, judge approved a $1.5 million medical malpractice settlement on Dec. 4th, 2003 for a child whose arm had to be partially amputated due to a severed artery. The injury occurred in the neonatal intensive care unit of a Hackensack, NJ, hospital where a 4-day-old baby was being cared for after his premature birth at about 30 weeks. Plaintiffs alleged that a doctor's attempt to place a long-term catheter line into the child's right armpit severed his artery. The child's arm had to be amputated below the elbow shortly thereafter. He now wears a prosthesis, which will have to be replaced as he grows. The plaintiffs alleged that the line should have been inserted in the scalp because the armpit was too risky a location. Judge Charles Walsh helped the parties reach agreement on Oct. 20, 2003. Judge Joseph Rosa approved the deal on Dec. 4, 2003, after a friendly hearing.

Sexual Misconduct Not Malpractice

A count of medical malpractice was dismissed where the plaintiff failed to allege that sexual advances by the hospital's employee were substantially related to her treatment. Heaford v. Danbury Hospital, Doc. No. CV03-0348399S (Danbury J.D., at Danbury, CT 12/3/03).

The plaintiff sued Danbury Hospital and an employee of the hospital, alleging the employee sexually abused her while she was a suicide patient in the hospital's psychiatric facilities. The employee was assigned to be with the plaintiff at all times, to assist in her treatment and to prevent her suicide. He allegedly initiated intimate relations by hugging the plaintiff and rewarding her good behavior with a kiss. After plaintiff's discharge, the employee allegedly persuaded her to come to the hospital and had intercourse with her, thus fathering a child with her. Danbury Hospital moved to strike the count alleging medical malpractice. The court granted the motion to strike because the general rule in Connecticut is that a health care provider's sexual misconduct isn't malpractice unless negligence substantially related to medical diagnosis of treatment is sufficiently shown. The plaintiff's allegations did not fit within the rule's exception.

Alternative Treatments Are Not Per Se 'Commercial Activity'

A plaintiff's complaint that her doctor violated Connecticut's Unfair Trade Practices Act (CUTPA) was dismissed due to her failure to “plead with particularity.” Parker v. Wolinsky-Friedlan, CV020470262, 2003 Conn. Super. LEXIS 3314 (12/4/03).

Plaintiff filed an 11-count complaint against defendant doctor and others claiming her multiple sclerosis was treated with unapproved experimental drugs that worsened her condition. The various counts alleged malpractice, lack of informed consent and violation of the Connecticut Unfair Trade Practices Act (CUTPA). One of the defendants, Dr. Marcie Wolinsky-Friedlan, filed a motion to strike count nine, the allegation that she violated CUTPA by engaging in the entrepreneurial activity of providing alternative medical services and products. In her motion to strike, defendant argued that plaintiff failed to state a claim, in that she had simply recast her negligence/medical malpractice claim as a CUTPA violation. Plaintiff countered that defendant engaged in an entrepreneurial enterprise by providing alternative medical products and services and that because these treatments were not recognized by the traditional medical profession, defendant should be presumed to be engaged in an entrepreneurial enterprise.

The court here noted that the practice of medicine may give rise to a CUTPA claim only when the actions at issue are chiefly concerned with entrepreneurial aspects of practice, such as the solicitation of business and billing practices, as opposed to claims directed at the competence of and strategy employed by a medical practitioner. The fact that the defendant used holistic or alternative medicines, by itself, did not transform a medical treatment practice into a commercial enterprise. Because the plaintiff failed to plead with particularity just how the defendant's use of the alternative medical treatments constituted a commercial or entrepreneurial aspect of the defendant's medical services, her complaint failed to support a CUTPA claim.

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