Cross & Smith LLC

Category: Medical Malpractice

Brouwer v. Sisters of Charity Providence – Common Knowledge Exception to Expert Witness Requirement

Aug 3, 2014 - Medical Malpractice by

In most medical malpractice actions, expert testimony is essential for the plaintiff as a precursor to submission of a claim to a jury for determination on the merits. Absent the testimony of an expert witness on behalf of the plaintiff, most judges won’t allow the medical malpractice case to move forward. Tuscaloosa medical malpractice lawyers recognize one major exception:  the common knowledge challenge. This rule holds that even though there is a general prerequisite for expert testimony to establish the standard of care and its breach in malpractice cases, this kind of expert testimony isn’t required when the subject of the substandard conduct is within the common knowledge of persons who aren’t medically trained. In other words, it’s fully comprehensible to ordinary, non-medical members of the public. An example might be a dentist who takes out the wrong tooth or a surgeon who accidentally leaves an instrument inside a patient’s body. These cases would be relatively straightforward. Still, the expression “common knowledge” makes the whole process sound less challenging than is the reality. Expert medical witnesses are costly, and it can sometimes be difficult to find one who is both qualified and willing. It’s important not to spend time and money at the early stages if it isn’t necessary. However, there is a general lack of consensus among courts as to what qualifies as “common knowledge,” leaving the interpretation sometimes open, and varying from judge to judge or court to court. One Tennessee appellate court judge was quoted in 1978 […]

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Kelly v. Haralampopoulos – Exception to Hearsay Rule in Medical Malpractice Claim

Jun 23, 2014 - Medical Malpractice by

In Alabama medical malpractice cases, there are strict rules governing what type of evidence the jury will be allowed to weigh. Generally, hearsay – or out-of-court statements or statements otherwise not of one’s direct knowledge – is barred, unless the statements fall under one of the noted exceptions as explained under Federal Rules of Evidence Rule 803. Birmingham medical malpractice lawyers know that statements made for the purposes of medical diagnosis or treatment may fall into this exception. The 1987 Alabama Supreme Court ruling in Seaboard System RR, Inc. v. Keen established that such statements would be admissible – but only if made to a physician. However, Rule 803(4) expands this definition, and allows hearsay exceptions to be made to include all statements given for the purposes of medical diagnosis or treatment and/or to describe medical history or past or present symptoms or other details reasonably pertinent to treatment or diagnosis.

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Laurel v. Prince – Physical Injury Necessary in Alabama Medical Malpractice Claim

Apr 15, 2014 - Medical Malpractice by

In filing a medical malpractice lawsuit in Birmingham, it’s not enough for the plaintiff to show the defendant erred. He or she must prove that the error caused a compensable degree of harm. That could be in the form of additional medical expenses incurred as a result of the error. It could be in the form of lost wages, due to the fact that the error rendered you unable to work for a time. It could be physical pain, permanent scarring or impairment. Absent proof of physical harm, though, a medical mistake may not be worth a lawsuit, as the case of Laurel v. Prince, recently reviewed by the Alabama Supreme Court, demonstrates.

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Retained Surgical Items & Alabama Malpractice Claims

Feb 17, 2014 - Medical Malpractice by

In 2006, a female patient underwent a hysterectomy at a hospital in Demopolis, about an hour outside of Tuscaloosa. Everything seemed to have gone fine. Then five years later, she sought the assistance of a rheumatologist, as she was experiencing intense pain. An x-ray revealed the presence of a hemostat clamp, lodged in her abdomen – allegedly left there negligently by the surgeon who had conducted the earlier operation. Prior to having the clamp removed surgically, she suffered debilitating pain and life-threatening infections. She later filed a lawsuit, Tucker, Jr. v. Tombigbee Healthcare Authority, which was just recently reviewed by the Alabama Supreme Court.

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Medical Malpractice Watch: Alabama Fails the Grade on Emergency Care

Feb 11, 2014 - Medical Malpractice by

When it comes to emergency health care, Alabama received two failing grades out of five categories, as rated in the 2014 American College of Emergency Physicians. Not only is the care substandard, according to the 2014 America’s Emergency Care Environment report, it’s actually getting worse. The state had been ranked 38th in the nation in 2009. Alabama has since fallen to 44th. For its general lack of support of emergency patients, the state received an overall failing “D” grade. The state was graded in five categories: Access to emergency care, quality of patient safety, medical liability, public health and injury prevention and disaster preparedness. The ratings declined in every single one of those categories, compared to the most recent 2009 ratings.

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Expert Witnesses Critical Element in Alabama Medical Malpractice Claim

Jan 11, 2014 - Medical Malpractice by

Anytime there is a claim of medical malpractice in Birmingham, one of the things your legal team will do is secure a knowledgeable and reliable witness who can testify as that the medical provider breached the applicable standard of care. Alabama Rules of Evidence, Article VII, Rule 702, an expert witness is someone who, by experience, training, knowledge, skill or education, is able to testify as to a technical, scientific or other specialized information in a case. The testimony of these individuals, based upon scientific procedure, methodology, principle or theory, is allowable only if the testimony is founded upon a sufficient bedrock of data or facts, is the product of reliable methods and principals and those methods and principals have been reliably applied to the facts of the case. In medical malpractice cases, the Alabama Medical Liability Act stipulates that only similarly situated health care providers can provide expert testimony in a medical malpractice case. The guidelines are rather technical, but essentially, if you are suing a medical doctor, you want to have another similarly-trained or experienced medical doctor who is willing to testify on your behalf.

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Tuscaloosa Medical Malpractice Claims Often Stem From “Routine” Procedures

Jan 7, 2014 - Medical Malpractice by

Recently, the cases of two young children left brain dead have captivated the country, after both girls underwent what were supposed to be “routine” medical procedures. In one case, a 3-year-old girl from Hawaii has been declared brain dead after suffering cardiac arrest while undergoing a root canal. It was later determined the girl was given a large dose of powerful medications during the procedure, and may not have been properly monitored. In California, the family of a 13-year-old girl is embroiled in a bitter legal battle over whether they should be allowed to press for continued care after she was declared brain dead following a reportedly botched surgery to correct her sleep apnea.

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Worden v. Kirchner – Timely Filing of Injury Complaint Critical

Dec 17, 2013 - Medical Malpractice by

In order to ensure that your Alabama medical malpractice claim has the best chance of success, the importance of a timely filing cannot be overstated. Failure to do so can result in having your claim dismissed before it is ever even considered by the courts. Generally, it’s a pretty straightforward rule. Alabama statutes hold that you have two years from the time that the alleged malpractice occurred within which to file your lawsuit. After that you lose your right to sue. However, there are exceptions. They are very specific, though, and you should expect the defense to fight you tooth-and-nail over an exception request.

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Medical Malpractice Litigation in Alabama – A Look at the Facts

Nov 19, 2013 - Birmingham by

Recently, an article in the Huffington Post talked about the myth that medical malpractice claims are a primary contributor to high medical bills. This article aimed to shoot down that common misconception by pointing to data that illustrated the cost of medical malpractice in Birmingham and elsewhere has been dropping across the nation for the last 10 years. In 2003, there were close to 17,00 paid medical malpractice claims in the U.S., totaling close to $5 billion. By 2011, the number of paid claims had dropped to less than 10,000 and the total payout was less than $3.5 billion. That’s about a 40 percent drop in the number of paid claims and a near 30 percent drop in the amount paid out. The cost of medical malpractice insurance began to rise in the early 2000s after a period of essentially flat prices. Rate increases were precipitated in part by the growing size of claims, particularly in urban areas. Among the other factors driving up prices was a reduced supply of available coverage as several major insurers exited the medical malpractice business because of difficulty in making a profit.

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Hospital Infections and Alabama Medical Malpractice Claims

Sep 24, 2013 - Medical Malpractice by

Most people view hospitalization as the cure for what ails them. Unfortunately in too many instances, it’s the hospitalization itself that ails us more than what brought us there in the first place. According to the U.S. Centers for Disease Control and Prevention, more than 2 million people annually are infected with drug-resistant germs annually and of those, about 23,000 die of infections. Our Tuscaloosa medical malpractice attorneys know that in many of these cases, the infection was picked up at a hospital or other clinical care setting.

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