Earlier this month, an appellate court in Nevada issued an opinion in what turned out to be a medical malpractice case, although the plaintiff filed the case as a battery case. In the case, Humboldt General Hospital v. Sixth Judicial District Court, the appellate court hearing the case determined that the lower court should have dismissed the plaintiff’s case because she failed to comply with the requirements of a medical malpractice case.
Ms. Barrett had an intrauterine device (IUD) implanted in her body at the defendant hospital. About one year after the procedure, the hospital sent a letter to Barrett, explaining that the IUD implanted in her body had not been FDA-approved. As it turns out, the IUD was made in the same facility as the FDA-approved devices. However, since it was shipped to Canada prior to its arrival in the U.S., rather than directly to the U.S., the exact device was not approved.
Barrett filed a negligence claim against the hospital, claiming that it had a duty to only use FDA-approved devices. Barrett also filed a battery claim against the hospital, claiming that the hospital should have known that she would not consent to a non-approved device being implanted in her body. She did not file any expert affidavit or any other supporting documentation because she saw this not as a medical malpractice case but as a battery case.
The hospital responded that the claims should all be dismissed because Barrett failed to submit an expert’s affidavit, as is required in medical malpractice cases filed in the jurisdiction. Barrett claimed that her claims were not based in medical malpractice but instead in negligence and battery. The court determined that one of Barrett’s claims was properly seen as a medical malpractice claim, and it dismissed the negligence claim. However, the court was not convinced that the medical battery claim was properly a medical malpractice claim, and it allowed that claim to proceed.
After that decision, the hospital then asked a higher court to review the court’s decision. The appellate court ended up agreeing with the hospital and determined that the medical battery claim was best seen as an “implied consent” claim, which would need to comply with the medical malpractice expert-opinion requirement. As a result of this decision, Barrett will need to consult with a medical professional who can prepare an affidavit in favor of her claims and then resubmit her case.
Have You Been a Victim of Medical Malpractice in the Washington, D.C. Area?
If you or a loved one has recently been a victim of what you believe to be medical malpractice in the Washington, D.C. area, you may be entitled to monetary compensation. It is incredibly important to first determine if the claims you anticipate bringing fall within the definition of “medical malpractice,” since if they do, there may be additional responsibilities you have. Contact the dedicated Maryland and Washington, D.C. personal injury attorneys at Lebowitz & Mzhen, LLC before you file your case. With their help, you can seek compensation for your injuries with confidence. Call 410-654-3600 today to set up a free consultation.
More Blog Posts:
State Court Finds Premises Liability Case against Government Sufficient to Proceed Toward Trial, Washington DC Injury Lawyer Blog, August 16, 2016
Statute of Repose Bars Medical Malpractice Plaintiff’s Case, Washington DC Injury Lawyer Blog, August 2, 2016