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T. Thomas Metier

Did Defendant Medical Center Fail to Provide a Prescription, and Did that Failure Lead to the Death of the Plaintiff?

In Shaw v. Nebraska Med. Ctr., No. A-17-507, (Neb. Ct. App. May 8, 2018), the Court answered this question. On September 20, 2012, Joslen Shaw (“Joslen”) was admitted to Nebraska Medical Center (“NMC”) with various serious ailments. This was Joslen’s […]

T. Thomas Metier

Did Plaintiffs Impliedly Waive Physician-Patient Privilege Such That Ex Parte Interviews May Be Permitted in a Medical Malpractice Action?

The Supreme Court of Colorado undertook this complicated question in In Re Bailey v. Hermancinski, No. 17SA20, (2018 CO 14). In this original proceeding, the Supreme Court of Colorado considers the scope of the physician–patient privilege in a medical-malpractice action. […]

T. Thomas Metier

In a Medical Negligence Case, Should the Initial Provider Be Allowed to Present Evidence That a Later Provider’s Negligence Caused the Injury?

In Danko v. Conyers, No. 16CA1383, (2018 COA 14), the Colorado Court of Appeals took on this complicated question. David J. Conyers, M.D., (“Conyers”) performed carpal tunnel surgery on Deborah Danko (“Danko”). According to Danko, Conyers negligently failed to detect […]

T. Thomas Metier

When Does a Claim of Medical Negligence Rise to the Level of a Constitutional Claim?

The United States Court of Appeals for the Tenth Circuit was faced with that question in Williams v. Corrections Corp., No. 17-7022 (10th Cir. 2017). In this case, a federal prisoner, Mario Williams (“Williams”) filed an appeal to the grant […]

T. Thomas Metier

Should Nebraska Adopt the Loss of Chance Doctrine in Medical Malpractice Cases?

What the damages were and why the Cohans suffered them were questions of fact for a jury to determine.

T. Thomas Metier

What Happens When One Party Does Not Want to Use its Own Expert Witness, and the Opposing Side Wants To?

The Court of Appeals says that the trial court did not abuse its discretion in denying the use of the defense’s expert witnesses by the plaintiff.

T. Thomas Metier

Who Bears the Burden of Proving an Underlying Judgment Would be Collectible in a Legal Malpractice Case?

The appeals court ruled in favor of the plaintiff, holding that the burden was actually on the attorney-defendant, not the plaintiff, to prove the judgment would have been uncollectible as an affirmative defense.

T. Thomas Metier

Can a Pro Se Litigant File a Medical Malpractice Claim as Executor of the Estate?

Assad’s complaint is a nullity and allowing him to represent the estate in this matter constituted plain error.

T. Thomas Metier

In a Negligence Case Against Multiple Tortfeasors, What Happens When Some Parties Settle?

The law says that after the claimant settles with a joint tortfeasor, the claims against others “shall be reduced by the amount of the released person’s share of the obligation as determined by the trier of fact.”

Darin Schanker

Medical Malpractice Crisis Myths(2)

The Center for American Progress has a series of short articles on medical malpractice, and it is worth giving a read. As the election shifts into overdrive, you can expect to hear a lot about this…