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Last week, the Court of Appeals reinforced the importance of the statutory presumption that a doctor has obtained valid informed consent.  The Hauser v. Brookview Women’s Center court affirmed the trial court’s instruction on the presumption over the plaintiff’s objections.  In a win for providers everywhere, the Court rejected the plaintiff’s arguments that the presumption was only applicable where there were allegations of fraud, deception, or misrepresentation and that it does not apply where there are allegations that the provider did not explain the alternatives to surgery. … Continue Reading

MazeA while back, Justice Edmunds wrote a post that did a deep dive into what it means for the state’s jurisprudence when a case is “affirmed without precedential value.”  Matt followed that up with discussion of a Business Court opinion in which Judge Gale concluded that a Court of Appeals opinion that is “affirmed without precedential value” is not binding authority in subsequent cases, but rather has only persuasive value.  … Continue Reading

Rule 59 is a powerful tool. A trial court has discretion to determine whether any one of the nine grounds in Rule 59(a) applies. The trial court then has discretion to select a remedy—a new trial in whole or in part. The trial court may not, however, grant a Rule 59(a) motion and then award something other than a new trial, like an increase in the amount of damages.… Continue Reading

In an opinion released Tuesday, the Court of Appeals reinforced the difficulty plaintiffs face when asserting claims against hospitals or other medical providers alleging that the provider was negligent in allowing a physician the privilege of practicing at the hospital. In Estate of Ray v. Forgy (Ray IV), the Court reversed a trial court’s order requiring the hospital defendants to produce hundreds of documents relating to the defendant doctor and its credentialing process, on the ground that those documents are protected by the medical review privilege.… Continue Reading