Medical negligence

Law Reporter, Dec 2001

ATLA's Professional Negligence Law Reporter includes a broad range of medical negligence cases Here are examples of the kinds of cases appearing in each issue of PNLR.

Costs of raising healthy child conceived after tubal ligation are recoverable

An Indiana appellate court held that a mother who conceived a healthy child after undergoing a tubal ligation may recover child-rearing costs from the physician who performed the failed procedure. The court also held that the physician could mitigate these damages by presenting evidence of the benefits resulting from the child's birth. Plaintiff was represented by *John C. Grimm, Auburn, Ind.

Chaffee v. Seslar, 751 N.E.2d 773 (Ind. Ct. App. 2001).

Comment For a case holding that a parent may sue a physician for wrongful life, but a child may not pursue a wrongful birth cause of action, see Bogan v. Altman & McGuire, PS.C., _ SW 3d _, Nos. 1999-CA-000212-- MR,1999-CA-000468-MR, 1999-CA-000468-MR, 1999-CA-000563-MR, 2001 WL 201848 (Ky. Ct. App. Mar. 2, 2001), 44 ATLA L. Rep. 185 (June 2001); modified, 2001 WL 703839 (Ky. Ct. App. June 22, 2001). Plaintiffs in this case were represented by Wayne F. Collier, Lexington, Ky.; George E. Overbey Jr., Frankfort, Ky.; and Barbara E. Yeager, Barbourville, Ky.

Documents in Bogan are available through the Court Document Sets section in the back of this issue, courtesy of Mr. Collier.

Misdiagnosis of reproductive cancer

Verdict for a woman who underwent chemotherapy, a hysterectomy, and lung surgery after being misdiagnosed as having cancer of the reproductive system. She and her husband sued a university and a diagnostic test manufacturer, alleging (1) failure to warn that a pregnancy/cancer test could yield false positive results and (2) misdiagnosis of the cancer despite a lack of symptoms. *Paul N. Luvera Jr. and

*Joel D. Cunningham, both of Mount Vernon, Wash., represented plaintiffs in this case.

Rufer v. Abbott Labs., Wash., King County Super. Ct., No. 99-2-27090-8 SEA, June 29,2001.

Misidentification of infants

Structured settlement for a mother who suffered emotional distress after learning that her child had been misidentified shortly after her birth at a state hospital and switched with another baby. The mother, individually and on behalf of the child she had been caring for since birth, sued the state, alleging it was liable for the hospital's negligence, fraud, and constitutional violations. Kenneth Mergenthal, Fredericksburg, Va.; Cynthia Johnson, Charlottesville, Va.; and *John T. Blakely, Naples, Fla., represented plaintiffs.

Johnson v. Commonwealth, Va., Stafford County Cir. Ct., No. 99191, Apr. 2001.

Comment: The family raising the woman's biological daughter reportedly reached a $2 million structured settlement with the hospital in a separate action. Additionally, a products liability suit on plaintiffs' behalf against the manufacturer of the identification bracelets is pending.

Nurse stuck by needle used on AIDS patient may sue for fear of contracting the disease

The Superior Court of Pennsylvania held that a nurse who suffered emotional distress after being pricked by a needle she had just used on an AIDS patient may recover for fear of contracting the disease. *Marion K. Munley, Scranton, Pa., represented plaintiffs.

Shumosky v. Lutheran Welfare Servs. of Northeastern Pa., Inc., _ A. 2d _, Nos. 2112 MDA 2000, 18 MDA 2001,2001 WL 1160978 (Pa. Super. Ct. Oct. 3,2001).

Comment: For a case holding that plaintiffs must show actual exposure and physical harm to recover for fear of contracting AIDS, see Brzoska v. Olson, 668 A.2d 1355 (Del. 1995), 39 ATLA L. Rep. 72 (Mar. 1996). *Marla Rosoff Eskin and *Thomas C. Crumplar, both of Wilmington, Del., represented plaintiffs.

Documents in Brzoska are available through the Court Document Sets section in the back of this issue, courtesy of Ms. Eskin.

Improper administration of epidural

Settlement for a woman who was diagnosed as having a spinal cord injury after undergoing a hysterectomy, during which she received epidural anesthesia. She and her husband sued an anesthesiologist, alleging he had improperly administered the epidural in that the needle had entered the woman's arachnoid space, contacting and injuring the spinal cord. *Richard A. Cohn, Santa Ana, Cal., represented plaintiffs.

Doe v. Roe, Cal., Orange County Super. Ct., confidential docket no., Apr. 19, 2001.

Doctor-patient relationship with obstetrics patient extends to unborn child

The Kansas Supreme Court held that a physician who has a doctor-patient relationship with an obstetrics patient who intends to carry her baby to term also has such a relationship with the fetus. The court added that a pregnant woman is entitled to be informed of test results revealing she has a communicable disease that can be transmitted to her child during labor and delivery. *Arden J. Bradshaw and *James R Howell, both of Wichita, Kan., represented plaintiffs. Nold v. Binyon, 31 P. 3d 274 (Kan. 2001).

Comment: For a case holding that physicians have a duty to warn patients about the communicability of cytomegalovirus, see Troxel v. AI Dupont Inst., 675 A.2d 314 (Pa. Super. Ct.), 11 PNLR 152 (Oct. 1996), appeal denied, 685 A.2d 547 (Pa. 1996). Nancy L. Goldstein, Philadelphia, Pa., represented plaintiffs.