Miles Obradovich

The plaintiffs commenced a medical negligence action alleging improper treatment at a hospital that preceded a stroke suffered by the main plaintiff.

The plaintiffs later sought court approval under Rule 7 to dismiss the action, including the claim of a minor plaintiff, asserting that they were unwilling to fund a necessary neurological expert opinion on causation.

The court scrutinized the request due to the involvement of a minor and the absence of sufficient evidence addressing the merits of the claim.

The judge emphasized that counsel undertaking professional negligence cases on a contingency fee basis must anticipate the risk of funding necessary expert evidence.

Although the court initially refused approval and sought further information, the prolonged inactivity and the plaintiff’s inability to fund expert evidence ultimately justified dismissal of the claim without costs.

In a medical negligence action arising from a colonoscopy preceding the patient’s death from colorectal cancer, the defendant physicians sought an order under Rule 32.01 of the Rules of Civil Procedure compelling genetic testing of preserved liver tissue to determine whether the cancer was a hereditary form potentially affecting the applicable standard of care.

The court held that excised human tissue archived by a hospital may constitute personal property capable of inspection and testing under Rule 32.01.

However, the motion was dismissed due to significant procedural and evidentiary deficiencies, including lack of evidence from the proposed testing expert, failure to specify the time, place and manner of inspection, and failure to give notice to the hospital and affected physicians.

The court concluded that although the proposed testing might be useful, the requested relief was procedurally improper and unsupported by adequate evidence.