Medical Risk Law Weekly News

Week of: June 25, 2012


Failure To Assist Walking Elderly, Frail Patient Subject to Medical Malpractice Expert Witness Filing Requirements

An elderly, frail woman who was a patient at a hospital decided to shower while preparing to leave the hospital. A registered nurse assisted her with undressing then left the room. The patient took a shower in the bathroom adjoining her hospital room. The patient alleged that when she was done, the nurse was standing in the doorway between the patient’s hospital room and the hallway outside. The patient stated, “I need some help—I've got to get out of here,” several times, but the nurse did not offer to assist her. On the other hand, the nurse alleged she assisted the patient after her shower but while passing through the doorway from the restroom to the hospital room, which was not wide enough for both women to walk side by side, the patient fell. The patient broke her hip, and lost mobility and her independence. The patient sued the hospital and the nurse.


CDC Reports U.S. High School Students Improve Motor Vehicle-Related Health Behaviors

U.S. high school students have shown significant progress over the past two decades in improving many health-risk behaviors associated with the leading cause of death among youth—motor vehicle crashes—according to the 2011 National Youth Risk Behavior Survey (YRBS) released by the Centers for Disease Control and Prevention. However, youth are engaging in other dangerous practices such as texting and emailing while driving.

Ben & Jerry’s Ice Cream Recalled Following Report of Allergy Labeling Flaw

Unilever is voluntarily recalling pint containers of its Ben & Jerry’s Chocolate Nougat Crunch Ice Cream: Sweet Cream Ice Cream with Fudge Covered Wafer Cookies & a Chocolate Nougat Swirl (“Chocolate Nougat Crunch”) that are missing the allergen advisory statement, “Allergy Information: Fudge covered wafer pieces have been manufactured on shared equipment that processes peanuts and tree nuts.” This allergen advisory statement should be at the end of the ingredients list but was inadvertently omitted from the recalled product.

FDA Approves Perjeta to Treat a Type of Late-Stage Breast Cancer

The U.S. Food and Drug Administration approved Perjeta (pertuzumab), a new anti-HER2 therapy, to treat patients with HER2-positive late-stage (metastatic) breast cancer.


OB’s Refusal to Perfrom Cerclage Was Not an Affirmative Act As Is Required to Find Statutory Liability for Negligence Resulting in Death of Fetus

A woman had a history of miscarriages due to incompetent cervix. She then successfully had three full-term births with the aid of an obstetrical surgical procedure known as cerclage. During the birth of her third child, her obstetrician removed her cerclage suture. During her fourth pregnancy, the same obstetrician refused to perform a cerclage. In September 2005, the woman went into pre-term labor and the fetus, at 17 weeks gestation, died. The woman sued her obstetrician and his professional corporation on her own behalf and on behalf of the deceased fetus.

Employee-Doctor’s Conduct That Is Not Barred by Limitations May Be Basis for Medical Practice’s Vicarious Liability

A man went to his doctor’s office, a medical practice employing various healthcare providers, complaining of chest pain and swollen extremities. The nurse practitioner who examined him told him to go home.  Two days later he died at home of cardiac arrest. The man’s widow, individually and as the administratrix of his estate, sued the medical practice for medical malpractice and wrongful death on the theory that it was vicariously liable for the acts of the nurse practitioner and a doctor who was involved in the man’s care.

Expert Testimony on Asbestos in Building Materials, Based on Regulations Aimed at Building Owners, Excluded as Speculation

A plumber and pipefitter worked at a number of jobsites over his 39-year career. Subsequently, he was diagnosed with mesothelioma. He and his wife sued multiple defendants who were responsible for the jobsites alleging occupational exposure to asbestos caused his mesothelioma.