Verdicts

Because the plaintiff's alleged injuries were received at a government-run hospital, his claim arose under the terms of the FTCA. Under the FTCA, the United States has waived its sovereign immunity to the extent that “a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C '' 1346(b)(1). In North Dakota, a claim for malpractice will not lie if the plaintiff fails to provide an expert affidavit within 3 months of filing his lawsuit. The plaintiff in this case failed to provide that affidavit, prompting the defendants moved for dismissal.

The plaintiff argued that the reference in 28 U.S.C '' 1346(b) to “law of the place” should be read to apply tribal law when the negligence in question occurred on the Turtle Mountain Indian Reservation. The United States contended that the “law of the place” referred to the law of the state where the negligence occurred, North Dakota, and that North Dakota law should therefore apply.

The court found conflicting holdings in other jurisdictions on this issue, but decided to side with those jurisdictions that say state law, rather than tribal law, should apply. In addition, plaintiff did not cite any tribal law pertaining to medical malpractice filing requirements, and courts have traditionally applied state law even if tribal jurisdiction applied when no tribal law on point exists.

Trial Court Improperly Allowed Too Many Peremptory Challenges

The Appellate Court of Connecticut overturned a $3.4 million verdict against Yale-New Haven Hospital because the trial court erred in the number of preemptory challenges it allowed the plaintiff during jury selection. Carrano v. Yale-New Haven Hospital, (AC 22644), 84 Conn. App. 656; 854 A.2d 771; 2004 Conn. App. LEXIS 361 (8/24/04).

The plaintiff was admitted to Yale-New Haven for treatment of a necrotic finger and to have a colonoscopy. The day after his release, he died at home. His administratrix filed suit against five defendants for medical malpractice. A jury returned a verdict for the plaintiff.

The defense claimed on appeal that the trial court erred by increasing the number of the plaintiff's peremptory challenges during jury selection from eight to 20 in a bid to “level the playing field.” The five defendants did not have a unity of interest and thus held a total of 20 challenges. The plaintiff had exercised 15 of the 20 challenges the trial court allowed. The appellate court agreed with the defense that under Connecticut law (Conn. Gen. Stat. '' 51-241 and 51-243(a) (2001)), plaintiff was entitled only to eight peremptory challenges. The appellate court therefore ordered a new trial.

Connecticut Court Recognizes Cause of Action for Bystander Emotional Distress

Faced with the question of whether Connecticut recognizes a cause of action for bystander emotional distress in the context of medical malpractice suits, the Superior Court of Connecticut, Judicial District of New London, answered in the affirmative. Ebert v. Groton Ambulance Assoc. Inc., 2004 Conn. Super. LEXIS 2189 (9/8/04).

In February 2002, the defendant's employees transported Karen Ebert from a health center to a hospital. Ebert's husband allegedly witnessed his wife's transfer to the hospital. The plaintiffs alleged negligence and gross negligence during the transfer from bed to stretcher and from stretcher to the ambulance, bystander emotional distress to the husband (from witnessing the transfer), and loss of consortium, as a result of the wife's alleged injuries. The defendants moved to strike, on the grounds that Connecticut does not recognize bystander emotional distress in medical malpractice cases. The Superior Court observed that there is a division among Connecticut Superior Courts with respect to this issue, but concluded that Connecticut offers a remedy to bystanders who allege a claim that satisfies criteria set forth in Clohessy v. Bachelor, a 1996 state Supreme Court decision. Clohessy v. Bachelor, 237 Conn. 31, 675 A.2d 852 (1996). Here, the court denied the motion to strike the bystander emotional distress claim.

Nurse-Midwife Settles Cerebral Palsy Suit for $3 Million

A Monmouth County, NJ, judge approved a deal on Sept. 14 for a nurse-midwife to pay $3 million in a birth injury medical malpractice case. Shannon v. Winters, N.J.L.J. 9/20/04.

The nurse-midwife on duty when plaintiff Alyson Shannon gave birth at Monmouth Medical Center on Nov. 6, 1997, allegedly allowed Shannon to get out of bed and remove the fetal monitor for 10-20 minutes despite readings indicating heartbeat irregularities. When the plaintiff was reconnected to the monitor, her pulse dropped from 140 to 90 beats per minute, reducing the flow of oxygen to the fetus. When this occurred, the nurse-midwife called two residents before summoning the attending physician. The baby was born with cerebral palsy and spastic quadriplegia. Shannon sued the hospital, the three doctors and the nurse-midwife. The defendants argued that the condition was not caused by lack of oxygen at birth but was congenital or occurred intrauterine. The settlement reached with the nurse-midwife calls for reimbursement to Medicaid, with the excess funds going into a special needs trust.

Claim Arising from Injury on Indian Reservation Subject to State Law

In a malpractice action filed under the Federal Tort Claims Act (FTCA), 28 U.S.C '' 1346(b), 2671-2680, in which the plaintiff claimed injury at a U.S.-run hospital on an Indian reservation, the U.S. District Court for the District of North Dakota, Northwestern Division, held the applicable “law of the place where the act or omission occurred” was state law, not Indian tribal law. LaFramboise v. Thompson, A4-04-11, Docket Number: 17, 2004 U.S. Dist. LEXIS 16640 (7/16/04).

In July 2001, the plaintiff was treated for a head injury at the Burdick Memorial Comprehensive Health Care Facility at Turtle Mountain Indian Reservation, located in North Dakota. The facility was operated by the United States. The plaintiff later filed this medical malpractice lawsuit against his doctor and others.

Because the plaintiff's alleged injuries were received at a government-run hospital, his claim arose under the terms of the FTCA. Under the FTCA, the United States has waived its sovereign immunity to the extent that “a private person would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C '' 1346(b)(1). In North Dakota, a claim for malpractice will not lie if the plaintiff fails to provide an expert affidavit within 3 months of filing his lawsuit. The plaintiff in this case failed to provide that affidavit, prompting the defendants moved for dismissal.

The plaintiff argued that the reference in 28 U.S.C '' 1346(b) to “law of the place” should be read to apply tribal law when the negligence in question occurred on the Turtle Mountain Indian Reservation. The United States contended that the “law of the place” referred to the law of the state where the negligence occurred, North Dakota, and that North Dakota law should therefore apply.

The court found conflicting holdings in other jurisdictions on this issue, but decided to side with those jurisdictions that say state law, rather than tribal law, should apply. In addition, plaintiff did not cite any tribal law pertaining to medical malpractice filing requirements, and courts have traditionally applied state law even if tribal jurisdiction applied when no tribal law on point exists.

Trial Court Improperly Allowed Too Many Peremptory Challenges

The Appellate Court of Connecticut overturned a $3.4 million verdict against Yale-New Haven Hospital because the trial court erred in the number of preemptory challenges it allowed the plaintiff during jury selection. Carrano v. Yale-New Haven Hospital, (AC 22644), 84 Conn. App. 656; 854 A.2d 771; 2004 Conn. App. LEXIS 361 (8/24/04).

The plaintiff was admitted to Yale-New Haven for treatment of a necrotic finger and to have a colonoscopy. The day after his release, he died at home. His administratrix filed suit against five defendants for medical malpractice. A jury returned a verdict for the plaintiff.

The defense claimed on appeal that the trial court erred by increasing the number of the plaintiff's peremptory challenges during jury selection from eight to 20 in a bid to “level the playing field.” The five defendants did not have a unity of interest and thus held a total of 20 challenges. The plaintiff had exercised 15 of the 20 challenges the trial court allowed. The appellate court agreed with the defense that under Connecticut law (Conn. Gen. Stat. '' 51-241 and 51-243(a) (2001)), plaintiff was entitled only to eight peremptory challenges. The appellate court therefore ordered a new trial.

Connecticut Court Recognizes Cause of Action for Bystander Emotional Distress

Faced with the question of whether Connecticut recognizes a cause of action for bystander emotional distress in the context of medical malpractice suits, the Superior Court of Connecticut, Judicial District of New London, answered in the affirmative. Ebert v. Groton Ambulance Assoc. Inc., 2004 Conn. Super. LEXIS 2189 (9/8/04).

In February 2002, the defendant's employees transported Karen Ebert from a health center to a hospital. Ebert's husband allegedly witnessed his wife's transfer to the hospital. The plaintiffs alleged negligence and gross negligence during the transfer from bed to stretcher and from stretcher to the ambulance, bystander emotional distress to the husband (from witnessing the transfer), and loss of consortium, as a result of the wife's alleged injuries. The defendants moved to strike, on the grounds that Connecticut does not recognize bystander emotional distress in medical malpractice cases. The Superior Court observed that there is a division among Connecticut Superior Courts with respect to this issue, but concluded that Connecticut offers a remedy to bystanders who allege a claim that satisfies criteria set forth in Clohessy v. Bachelor , a 1996 state Supreme Court decision. Clohessy v. Bachelor , 237 Conn. 31, 675 A.2d 852 (1996). Here, the court denied the motion to strike the bystander emotional distress claim.

Nurse-Midwife Settles Cerebral Palsy Suit for $3 Million

A Monmouth County, NJ, judge approved a deal on Sept. 14 for a nurse-midwife to pay $3 million in a birth injury medical malpractice case. Shannon v. Winters, N.J.L.J. 9/20/04.

The nurse-midwife on duty when plaintiff Alyson Shannon gave birth at Monmouth Medical Center on Nov. 6, 1997, allegedly allowed Shannon to get out of bed and remove the fetal monitor for 10-20 minutes despite readings indicating heartbeat irregularities. When the plaintiff was reconnected to the monitor, her pulse dropped from 140 to 90 beats per minute, reducing the flow of oxygen to the fetus. When this occurred, the nurse-midwife called two residents before summoning the attending physician. The baby was born with cerebral palsy and spastic quadriplegia. Shannon sued the hospital, the three doctors and the nurse-midwife. The defendants argued that the condition was not caused by lack of oxygen at birth but was congenital or occurred intrauterine. The settlement reached with the nurse-midwife calls for reimbursement to Medicaid, with the excess funds going into a special needs trust.