A patient got this nasty bug after a podiatrist gave a cortisone shot for plantar fasciitis. Plaintiff’s expert said this cannot happen in the absence of negligence. Defendant’s expert said it is a rare complication than can happen with proper technique.
The Second Department sent the case back for a new trial because plaintiff did not get the requested res ipsa loquitor jury charge. The court agreed with the trial court’s ruling that the jury should not learn about another patient of the same podiatrist who had a similar misfortune.
Query: Does this represent a shift away from remoteness from the operative site and toward expert testimony in determining whether the permissible inference is warranted?
Bernard v. Bernstein (N.Y. App. Div., 2d Dept., 3/18/2015)
The insured’s underinsured motorist claim was denied on the grounds that he waived UIM coverage. The insured contended that he did not effectively waive the UIM coverage because the offer document did not include the premium. The AZ Supreme Court rejected the argument that the information provided was insufficient, at common law, to constitute an offer. The Court said that this was strictly governed by a statute, A.R.S. § 20-259.01, which does not require the price information. As long as the carrier obligated itself to issue the coverage, it was up to the insured to ask about the price.
Newman v. Cornerstone (March 18, 2015)
The father of a developmentally disabled child became guardian of her person when she turned 18. He brought a med mal action on her behalf against the State. The Court of Claims dismissed for lack of standing. The Second Department affirmed, noting that there are three types of guardians: guardians of the person, guardians of the property, and guardians ad litem, and only the latter two are authorized by statute to prosecute civil actions on behalf of the ward.
Kay v State (2d Dept., 03/04/2015)
The Committee for Physician Health, an arm of the New York State Medical Society, provides assistance to impaired physicians. A doctor committed suicide by drug overdose, and the distributees sued CPH for wrongful death. The estate claimed that CPH committed medical malpractice by failing to turn over a psychiatric report to other defendants. The trial court (Sup. Ct. NY Co. Hon. Alice Schlesinger) denied CPH’s motion to dismiss. The Appellate Division reversed, holding that CPH had no duty to turn over the confidential report, and noting that CPH does not practice medicine.
Christophel v. New York-Presbyterian Hospital ( NY App. Div. 1st Dept. 03/03/2015)
The defendant was busted with 5.07 grams of pot in her car. At trial, the court declined to admit her Oregon caregiver card into evidence. The defendant argued that she was a registered caregiver in Oregon, and that the marijuana was for use by her patient, who was also her father. The AZ Court of Appeals, Div. One, ruled that the immunity afforded by the Arizona Medical Marijuana Act did not extend to caregivers authorized by another state. The court noted that while the Arizona statue makes dispensation for a “visiting qualifying patient”, there is no such provision for visiting caregivers. The misdemeanor conviction, and sentence of one year’s unsupervised probation, stands.
State v. Abdi (AZ Court of Appeals, Div. 1, 02/26/2015)