Verdicts

Ordinary Negligence Alleged, Not Malpractice

Because the actions complained of took place post-operatively, and did not involve the provision of healthcare services, the statute of limitations applicable to this action against an anesthesiologist was that applied to common-law torts, and the suit was not untimely filed. So v. Shin, (1/3/13) 2013 Cal. App. LEXIS 3.

In September 2008, the plaintiff underwent a dilation and curettage (D&C) procedure following a miscarriage. She was fully anesthetized for the procedure, but claims the anesthesia was inadequate, and that she awoke and felt pain and heard a sucking sound. Later, in the recovery room, she confronted the anesthesiologist with this information. In her August 2010-filed complaint seeking damages from the anesthesiologist and hospital for negligence, among other things, the plaintiff claimed the doctor became angry during their discussion, left the room and returned with a vial. Then, according to the complaint, the anesthesiologist allegedly “stated words to the effect that Plaintiff could see that it was only blood which was suctioned therefore, there could not have been any pain. SHIN had come within a few inches of Plaintiff and motioned as though she was going to drop the container in Plaintiff's lap. When SHIN made those comments and movements, Plaintiff realized that the contents of the container were Plaintiff's blood and possible fragments of body parts of her dead baby. Plaintiff nearly fainted and screamed at SHIN to get away from her. ['] ' Realizing what she had done in her state of anger, [the anesthesiologist] came even closer to Plaintiff with the container still in her hand and tried to touch Plaintiff, and did touch Plaintiff's hands, arms and shoulders. Plaintiff[,] in a state of shock, kept screaming and crying for [the anesthesiologist] to get out of the room. [The anesthesiologist] left, but then later returned and asked Plaintiff to keep quiet about what had just happened and not to discuss the situation with the hospital. [The anesthesiologist] again touched Plaintiff, grabbed Plaintiff's hand and told Plaintiff she should keep quiet about what had just happened.”

The trial court sustained demurrers to the cause of action for negligence on the basis that it was not timely filed in accordance with the one-year limitations period for medical malpractice actions set out in California's Code of Civil Procedure section 340.5. The plaintiff appealed.

The appeals court reversed on the timeliness issue, concluding that the complaint was not for medical malpractice but for common law torts. The court observed first that the conduct complained of took place immediately after plaintiff's surgery, while she was still in the recovery room. It allowed that the anesthesiologist's assertion that she had a continuing duty to monitor her patient at that stage was correct. However, the court framed the question to be answered like this: “[B]ecause an anesthesiologist's postsurgical contact with a patient may be for the purpose of rendering professional services, must we conclude that such contact necessarily is for that purpose?” Here, although the alleged misconduct occurred during the same period of time in which the anesthesiologist was rendering care, it was not itself the rendering of care. During the encounter that led to the lawsuit, the anesthesiologist was not only delivering health care; she was also interacting with the plaintiff to defend her professional competence and to attempt to keep the plaintiff from telling anyone that she had awakened during surgery. Thus, the statute of limitations pertaining to ordinary torts was applicable, not that employed in medical malpractice cases. And, as the questions whether the plaintiff was touched, or had consented to being touched, were factual questions for the finder of fact to decide, they were not capable of being determined on demurrer. Therefore, the court reversed the judgment of dismissal.

Out-of-State Attorneys Have Sufficient Ties with Rhode Island

The United States District Court for the District of Rhode Island has rejected defendant attorney firm's motion to dismiss a legal malpractice claim against it, finding that because the attorneys took a Rhode Island-based medical malpractice case and had other significant ties with the state, personal jurisdiction attached. Dennett v. Archuleta, 2013 U.S. Dist. LEXIS 4605 (D. R.I. 1/11/13).

The plaintiff in this legal malpractice case had an underlying medical malpractice claim against the United States concerning care he received at the Providence Veterans Affairs Medical Center, in Providence, RI. The Providence VA had biopsied the plaintiff's prostate and told him the results showed he had prostate cancer. He therefore underwent surgery to remove his prostate. Tests conducted postoperatively showed, however, that he did not have cancer; it turned out that his test results had gotten mixed up with another patient's, and it was the other man who had prostate cancer. The plaintiff therefore brought a claim against the federal government in accordance with the Federal Tort Claims Act (FTCA), seeking damages in compensation for undergoing an unnecessary surgery that left him with infection, painful fluid collection in his pelvis, incontinence and impotence.

The plaintiff learned of the services of the defendant law firm, Archuleta, Alsaffar & Higginbotham (AA&H) from the firm's website and retained them to handle his case. The firm, based in Texas, advertises itself as handling FTCA cases nationwide. Its attorneys all live in and are licensed exclusively in Texas. The parties corresponded over the Internet before the firm was retained. The plaintiff sent several documents to AA&H, along with a client questionnaire and retainer agreement, both of which he signed in Rhode Island. In October 2009, AA&H filed two claims on the plaintiff's behalf, one with the Providence VA and one with the Providence VA Regional Office. At Defendants' request, the claims were administratively transferred to the VA Office of General Counsel in Washington, DC, because the Washington office is authorized to settle for larger amounts than is the Providence office. AA&H negotiated a settlement of $300,000, which the plaintiff agreed to. He signed the settlement papers in Rhode Island. Later, however, the plaintiff became unhappy with the settlement amount and sued AA&H for legal malpractice in Rhode Island Superior Court. The defendant law firm removed the case to federal court, then sought dismissal for lack of personal jurisdiction.

The First Circuit places the burden of proof on the plaintiff to show that both the due process clause of the Constitution and the forum's (Rhode Island's) long-arm statute are satisfied. In Rhode Island, these standards are the same, because Rhode Island's long-arm statute claims jurisdiction to the maximum extent permitted by the 14th Amendment. And, according to Int'l Shoe Co. v. Washington, 326 U.S. 310 (1945), personal jurisdiction under the Due Process Clause exists when there are minimum contacts between the nonresident defendant and the forum such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” This can be established by showing specific personal jurisdiction through a three-part test that asks: 1) whether the claim underlying the litigation directly arose out of, or is related to, the defendant's forum-state activities; 2) whether the defendant's in-state contacts represented a purposeful availment of the privilege of conducting activities in the forum state; and 3) whether exercise of jurisdiction is reasonable.

The court found sufficient minimum contacts were established by several factors, including, but not limited to, the defendant's Internet contacts with the Rhode Island plaintiff, the interstate correspondence between the parties, the bringing of the FTCA claim in Rhode Island, and the fact that that claim was subject to the application of Rhode Island substantive law. The defendants contended, however, that while these contacts would ordinarily be sufficient to establish specific personal jurisdiction, the legal malpractice claim itself alleged malpractice arising only from the narrow act of specifically negotiating the settlement amount with the Washington VA, and did not complain of any wrongs concerning the Rhode Island-related acts in preparing and originally filing the case. The court was not convinced, concluding, “Regardless of the fact that the settlement talks occurred between Texas and Washington, D.C., the claim is directly related to and arises out of Defendants' contacts with Rhode Island, and thus the relatedness prong is satisfied.”

The second prong of the test ' purposeful availment of the privilege of conducting activities in the forum state ' was met, said the court, not when the defendants created a web site advertising they could represent FTCA claimants nationwide (because, according to McBee v. Delica Co., 417 F.3d 107 (1st Cir. 2005), creating a web site to establish business is not enough to establish personal jurisdiction), but when they agreed to represent the Rhode Island plaintiff.

And because the court found nothing unreasonable about Rhode Island's exercise of jurisdiction over the defendant, it denied the AA&H's motion to dismiss for lack of personal jurisdiction.

Ordinary Negligence Alleged, Not Malpractice

Because the actions complained of took place post-operatively, and did not involve the provision of healthcare services, the statute of limitations applicable to this action against an anesthesiologist was that applied to common-law torts, and the suit was not untimely filed. So v. Shin, (1/3/13) 2013 Cal. App. LEXIS 3.

In September 2008, the plaintiff underwent a dilation and curettage (D&C) procedure following a miscarriage. She was fully anesthetized for the procedure, but claims the anesthesia was inadequate, and that she awoke and felt pain and heard a sucking sound. Later, in the recovery room, she confronted the anesthesiologist with this information. In her August 2010-filed complaint seeking damages from the anesthesiologist and hospital for negligence, among other things, the plaintiff claimed the doctor became angry during their discussion, left the room and returned with a vial. Then, according to the complaint, the anesthesiologist allegedly “stated words to the effect that Plaintiff could see that it was only blood which was suctioned therefore, there could not have been any pain. SHIN had come within a few inches of Plaintiff and motioned as though she was going to drop the container in Plaintiff's lap. When SHIN made those comments and movements, Plaintiff realized that the contents of the container were Plaintiff's blood and possible fragments of body parts of her dead baby. Plaintiff nearly fainted and screamed at SHIN to get away from her. ['] ' Realizing what she had done in her state of anger, [the anesthesiologist] came even closer to Plaintiff with the container still in her hand and tried to touch Plaintiff, and did touch Plaintiff's hands, arms and shoulders. Plaintiff[,] in a state of shock, kept screaming and crying for [the anesthesiologist] to get out of the room. [The anesthesiologist] left, but then later returned and asked Plaintiff to keep quiet about what had just happened and not to discuss the situation with the hospital. [The anesthesiologist] again touched Plaintiff, grabbed Plaintiff's hand and told Plaintiff she should keep quiet about what had just happened.”

The trial court sustained demurrers to the cause of action for negligence on the basis that it was not timely filed in accordance with the one-year limitations period for medical malpractice actions set out in California's Code of Civil Procedure section 340.5. The plaintiff appealed.

The appeals court reversed on the timeliness issue, concluding that the complaint was not for medical malpractice but for common law torts. The court observed first that the conduct complained of took place immediately after plaintiff's surgery, while she was still in the recovery room. It allowed that the anesthesiologist's assertion that she had a continuing duty to monitor her patient at that stage was correct. However, the court framed the question to be answered like this: “[B]ecause an anesthesiologist's postsurgical contact with a patient may be for the purpose of rendering professional services, must we conclude that such contact necessarily is for that purpose?” Here, although the alleged misconduct occurred during the same period of time in which the anesthesiologist was rendering care, it was not itself the rendering of care. During the encounter that led to the lawsuit, the anesthesiologist was not only delivering health care; she was also interacting with the plaintiff to defend her professional competence and to attempt to keep the plaintiff from telling anyone that she had awakened during surgery. Thus, the statute of limitations pertaining to ordinary torts was applicable, not that employed in medical malpractice cases. And, as the questions whether the plaintiff was touched, or had consented to being touched, were factual questions for the finder of fact to decide, they were not capable of being determined on demurrer. Therefore, the court reversed the judgment of dismissal.

Out-of-State Attorneys Have Sufficient Ties with Rhode Island

The United States District Court for the District of Rhode Island has rejected defendant attorney firm's motion to dismiss a legal malpractice claim against it, finding that because the attorneys took a Rhode Island-based medical malpractice case and had other significant ties with the state, personal jurisdiction attached. Dennett v. Archuleta, 2013 U.S. Dist. LEXIS 4605 (D. R.I. 1/11/13).

The plaintiff in this legal malpractice case had an underlying medical malpractice claim against the United States concerning care he received at the Providence Veterans Affairs Medical Center, in Providence, RI. The Providence VA had biopsied the plaintiff's prostate and told him the results showed he had prostate cancer. He therefore underwent surgery to remove his prostate. Tests conducted postoperatively showed, however, that he did not have cancer; it turned out that his test results had gotten mixed up with another patient's, and it was the other man who had prostate cancer. The plaintiff therefore brought a claim against the federal government in accordance with the Federal Tort Claims Act (FTCA), seeking damages in compensation for undergoing an unnecessary surgery that left him with infection, painful fluid collection in his pelvis, incontinence and impotence.

The plaintiff learned of the services of the defendant law firm, Archuleta, Alsaffar & Higginbotham (AA&H) from the firm's website and retained them to handle his case. The firm, based in Texas, advertises itself as handling FTCA cases nationwide. Its attorneys all live in and are licensed exclusively in Texas. The parties corresponded over the Internet before the firm was retained. The plaintiff sent several documents to AA&H, along with a client questionnaire and retainer agreement, both of which he signed in Rhode Island. In October 2009, AA&H filed two claims on the plaintiff's behalf, one with the Providence VA and one with the Providence VA Regional Office. At Defendants' request, the claims were administratively transferred to the VA Office of General Counsel in Washington, DC, because the Washington office is authorized to settle for larger amounts than is the Providence office. AA&H negotiated a settlement of $300,000, which the plaintiff agreed to. He signed the settlement papers in Rhode Island. Later, however, the plaintiff became unhappy with the settlement amount and sued AA&H for legal malpractice in Rhode Island Superior Court. The defendant law firm removed the case to federal court, then sought dismissal for lack of personal jurisdiction.

The First Circuit places the burden of proof on the plaintiff to show that both the due process clause of the Constitution and the forum's (Rhode Island's) long-arm statute are satisfied. In Rhode Island, these standards are the same, because Rhode Island's long-arm statute claims jurisdiction to the maximum extent permitted by the 14th Amendment. And, according to Int'l Shoe Co. v. Washington , 326 U.S. 310 (1945), personal jurisdiction under the Due Process Clause exists when there are minimum contacts between the nonresident defendant and the forum such that the maintenance of the suit does not offend “traditional notions of fair play and substantial justice.” This can be established by showing specific personal jurisdiction through a three-part test that asks: 1) whether the claim underlying the litigation directly arose out of, or is related to, the defendant's forum-state activities; 2) whether the defendant's in-state contacts represented a purposeful availment of the privilege of conducting activities in the forum state; and 3) whether exercise of jurisdiction is reasonable.

The court found sufficient minimum contacts were established by several factors, including, but not limited to, the defendant's Internet contacts with the Rhode Island plaintiff, the interstate correspondence between the parties, the bringing of the FTCA claim in Rhode Island, and the fact that that claim was subject to the application of Rhode Island substantive law. The defendants contended, however, that while these contacts would ordinarily be sufficient to establish specific personal jurisdiction, the legal malpractice claim itself alleged malpractice arising only from the narrow act of specifically negotiating the settlement amount with the Washington VA, and did not complain of any wrongs concerning the Rhode Island-related acts in preparing and originally filing the case. The court was not convinced, concluding, “Regardless of the fact that the settlement talks occurred between Texas and Washington, D.C., the claim is directly related to and arises out of Defendants' contacts with Rhode Island, and thus the relatedness prong is satisfied.”

The second prong of the test ' purposeful availment of the privilege of conducting activities in the forum state ' was met, said the court, not when the defendants created a web site advertising they could represent FTCA claimants nationwide (because, according to McBee v. Delica Co. , 417 F.3d 107 (1st Cir. 2005), creating a web site to establish business is not enough to establish personal jurisdiction), but when they agreed to represent the Rhode Island plaintiff.

And because the court found nothing unreasonable about Rhode Island's exercise of jurisdiction over the defendant, it denied the AA&H's motion to dismiss for lack of personal jurisdiction.