A Modest Proposal: A Heartbeat Bill for Those Who Don’t Wear Masks

MARCI A. HAMILTON

University of Pennsylvania professor Marci A. Hamilton draws upon a strategy used by anti-abortion advocates in suggesting a way to encourage (or coerce) more people into wearing masks to avoid the spread of COVID-19. Hamilton proposes requiring persons who opt not to wear a mask in public (1) to watch, on a large screen, an adult's beating heart for 30 seconds, and (2) to be read a statement about how their decision unreasonably endangers others.

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Howard v. United States

Court: US Court of Appeals for the Eighth Circuit

Docket: 19-1910

Opinion Date: July 6, 2020

Judge: Bobby E. Shepherd

Areas of Law: Medical Malpractice, Personal Injury

Plaintiff, the widow and executrix of her late husband's estate, filed suit under the Federal Tort Claims Act (FTCA), alleging a claim of medical malpractice on behalf of the estate and alleging individually a claim of wrongful death. The claims stemmed from injuries her husband suffered during a fall, shortly before his death, while hospitalized in a Veterans Affairs hospital. The Eighth Circuit affirmed the district court's dismissal of plaintiff's claims, holding that the district court did not err in dismissing the medical malpractice claim in the absence of a breach of the applicable standard of medical care. In this case, substantial evidence supported the district court's factual findings with respect to the husband's condition on the morning of the fall and the care the nurses provided him to and after his fall. The court also held that the district court did not err in dismissing the wrongful death claim in the absence of an underlying tort claim.

McAlpine v. Norman

Court: California Courts of Appeal

Docket: C088327(Third Appellate District)

Opinion Date: July 8, 2020

Judge: Krause

Areas of Law: Civil Procedure, Medical Malpractice

Plaintiff Christi McAlpine filed a medical malpractice action against defendant Dr. Daniel Norman for injuries she suffered as a result of colonoscopies performed on her in 2015. In 2018, with trial approaching, Norman filed a summary judgment motion, supported by a declaration from an expert who reviewed McAlpine’s medical records, and opined that Norman’s actions were within the standard of care. McAlpine opposed the motion, but did not submit a competing expert opinion. While the summary judgment motion was pending, McAlpine sought leave to amend her complaint. The trial court denied leave to amend and granted summary judgment. McAlpine appealed the grant of summary judgment and the order denying her motion for leave to amend, arguing that the expert declaration presented in support of the motion for summary judgment was conclusory and insufficient to meet the initial burden for summary judgment. She also argued the trial court abused its discretion in denying her request for leave to amend. The Court of Appeal found no abuse of discretion in the order denying leave to amend, but agreed the trial court improperly granted summary judgment based on an expert opinion unsupported by factual detail or reasoned explanation. Accordingly, the Court reversed the grant of summary judgment and remanded for further proceedings.

Clark v. Mattar

Court: Supreme Court of Indiana

Docket: 20S-CT-109

Opinion Date: July 9, 2020

Judge: Steven H. David

Areas of Law: Medical Malpractice, Personal Injury

In this negligence action, the Supreme Court reversed the judgment of the trial court in favor of Defendant, holding that a juror should have been struck for cause based on bias and that there was prejudice because Plaintiff, the party objecting to the juror, was forced to exhaust her last peremptory challenge and accept and objectionable juror. The estate of Kandace Pyles brought a negligence claim against various medical providers, including Defendant. The juror in this case stated that he did not want to serve as a juror, that he had a favorable impression of doctors, and that he would not be able to assess noneconomic damages. Plaintiff moved to strike the juror for cause, and the trial court denied the motion. Plaintiff used her final peremptory challenge on the juror. After a trial, the jury found that Defendant was not negligent. The Supreme Court reversed and remanded the case for a new trial, holding that the trial court's decision to deny Plaintiff's for-cause challenge was illogical and that a new trial was appropriate.

Estate of Mary Curtis v. Las Vegas Medical Investors, LLC

Court: Supreme Court of Nevada

Citation: 136 Nev. Adv. Op. No. 39

Opinion Date: July 9, 2020

Judge: Silver

Areas of Law: Medical Malpractice, Professional Malpractice & Ethics

The Supreme Court held that the "common knowledge" exception to the affidavit requirement for professional negligence claims against a provider of health care can also be applied to determine whether a claim that appears to sound in professional negligence, and does not fall under Nev. Rev. Stat. 41A.100, actually sounds in ordinary negligence and thus is not subject to Nev. Rev. Stat. 41A.071. A nursing home nurse mistakenly administered morphine to a patient that had been prescribed for another patient. The patient died three days later from morphine intoxication. The patient's estate sued the nursing home but did not explicitly assert any claim for professional negligence or file an expert affidavit under section 41A.071. The district court granted summary judgment for the nursing home, concluding that the complaint's allegations sounded in professional negligence and, therefore, the estate was required to file an expert affidavit. The Supreme Court reversed in part, holding (1) the mistaken administration of another patient's morphine constituted ordinary negligence that a lay juror could assess without expert testimony, and such a claim is not subject to section 41A.071's medical expert affidavit requirement; and (2) the district court correctly granted summary judgment on the allegations regarding the failure to monitor, as those allegations required expert testimony to support.