Picture the following. In response to a standard interrogatory that asks a plaintiff to list their alleged sources of damages, the plaintiff alleges their income was reduced to only 60% of their regular earnings while recovering from injury. At first glance, it might seem like you can calculate the extent of the plaintiff’s alleged damages with no additional information—40% of their regular earnings. But to truly make this calculation, [...]
In Clark v. Scheels All Sports, Inc., 314 Neb. 49 (2023), the Nebraska Supreme Court hinted a longstanding paradigm that governed summary judgment procedure in medical malpractice actions is likely no more. Before Clark, a defendant physician could prevail on summary judgment by preparing and submitting an affidavit that vouched for her or his care, after which the burden of proof shifted to the plaintiff to advance expert [...]
Just under six years have passed since Iowa enacted its medical malpractice certificate of merit requirement, codified at Iowa Code § 147.140. Iowa practitioners have paid close attention during these years as the Iowa Supreme Court and Iowa Court of Appeals have explored the requirement’s contours. And just this month, the Iowa Supreme Court outlined another layer of considerations Iowa practitioners must keep in mind while litigating medical [...]
Cases that involve alleged brain injury often turn on expert battles over the results of sophisticated neuropsychological testing. These tests—such as the Minnesota Multiphasic Personality Inventory, the Luria-Nebraska Neuropsychological battery, and the Weschler Adult Intelligence Scale—represent the culmination of decades of specialized research. And these tests can often provide key insights into the examinees’ cognitive abilities. Like any test, these neuropsychological batteries can be gamed if the examinee has enough [...]
This past summer saw a Minnesota federal jury deliver what may be the state’s largest medical malpractice verdict to date. Though outside the jurisdictions LDM generally provides services in, this verdict offers an opportunity for defense practitioners to assess whether their clients may be at risk of incurring similar substantial judgments. The case, Thapa v. St. Cloud Orthopedic Associates, Ltd., arose from an injury a college student sustained during a [...]
In Downing v. Grossman, an April 2022 decision, the Iowa Supreme Court reaffirmed that medical malpractice plaintiffs may not use allegations of fraudulent concealment to employ equitable estoppel to eviscerate the operation of Iowa Code § 614.1(9)’s a statute of repose when the alleged fraudulent concealment goes to the very “heart of” a plaintiff’s claim. To understand Downing, it is important to keep in mind the similarities and differences between [...]
In any medical malpractice case where a plaintiff claims your physician-client violated the applicable standard of care, one of the defense attorney’s first tasks is—or should be—to identify an expert to defend your client’s treatment. At first glance, this task seems straightforward. After all, the simple goal is to identify a person that can vouch for the care your client provided. But states maintain distinct standards that sometimes differ as [...]
