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New Study Of Orthopedic Medical Malpractice Claims September 3rd, 2015

162017_132140396847214_292624_nA study released on August 27, 2015 by The Doctors Company, which is the largest physician-owned medical malpractice insurance company in the United States, analyzed 1,895 medical malpractice claims made against orthopedists insured by The Doctors Company that were closed between 2007 and 2014. The study determined that the three most common allegations of medical malpractice made by patients against orthopedists were improper performance of surgery, improper management of the surgical patient, and diagnosis-related issues (for example, allegations involving the failure or delay in diagnosis or the wrong diagnosis).

Unsurprisingly, the study found that medical malpractice claims that alleged that the orthopedist performed the surgery improperly were often made when the surgical outcome was different than the patient’s expectations.

The study looked beyond the medical malpractice allegations made in the closed claims to analyze and determine the factors that led to injury. The study found that the top five factors that led to an orthopedic medical malpractice claim were technical performance, patient factors, selection and management of therapy, communication between the patient/family and the provider, and patient assessment issues (for example, the failure or the delay in ordering diagnostic tests). The study found that when the patient did not follow the treatment plan or the patient missed scheduled appointments, the patient behaviors affected the outcome of care in 29% of the closed claims.

In discussing the results of the study, a medical expert stated, “These findings make it clear that healthcare teams and patients need to partner to achieve better outcomes. While improper performance of surgery was the top patient allegation, in most cases the risks had been disclosed to patients prior to the procedure, but the patient may not have understood. In nearly one third of claims, patients did not adhere to the treatment plan, and this behavior was more likely when there was inadequate communication.”

Source

Inadequate communication between a medical provider and a patient is a real and substantial problem that can lead to a delay or failure in receiving the full benefits of medical treatment. Physicians too often talk above the comprehension level of their patients or fail to provide information because they do not understand that such information is important to their patients’ understanding and decisions regarding their medical care. Patients too often feel overwhelmed by the medical information that they are being provided when they are face-to-face with their medical providers, or they may not have sufficient awareness of the information about their medical conditions and their medical treatment options because they lack the ability to digest, understand, and analyze the information being provided to them by their medical providers.

The failure of communication between medical provider and patient is often the basis for informed consent claims (i.e., that the medical provider failed to provide the necessary information regarding a medical procedure or treatment, including the risks, benefits, and alternatives, that the patient may consider relevant and necessary in order for the patient to provide his or her informed consent for the procedure or treatment).

If you or a loved one were injured due to orthopedic medical malpractice, you should promptly find a medical malpractice lawyer in your U.S. state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find medical malpractice attorneys in your state who may assist you.

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Defense Verdict In Virginia Medical Malpractice Cardiac Death Case September 2nd, 2015

162017_132140396847214_292624_nOn August 27, 2015, after a four-day trial and two-and-a-half hours of deliberations, a Virginia medical malpractice jury returned a verdict in favor of a Virginia hospital and a nurse in a medical malpractice/wrongful death case filed by the widow of a man who was declared brain dead after he underwent two heart surgeries on the same day.

The man had heart surgery on August 24, 2012 at the defendant hospital. The defendant nurse was responsible for the care of the man immediately after the surgery. The man’s widow filed the Virginia medical malpractice lawsuit, alleging that the nurse breached the standard of care by failing to telephone the man’s attending physician when a monitor attached to the man showed data that was below normal limits.

The monitor showed that the patient’s central venous pressure (“CVP”) fell below what was considered the normal range in the hours before the man’s death. The CVP reading later returned to within the normal range. Nonetheless, the plaintiff alleged that the defendant nurse was required to call the attending physician at home to advise him of the abnormal reading, which the plaintiff alleged would have resulted in timely and appropriate medical intervention that would have saved her husband’s life.

The defendants contended that the standard of care did not require the nurse to contact the attending physician at home. In support of their position, the defendants hired a Florida-based thoracic surgeon who specializes in cardiac surgery to testify during trial that had the defendant nurse called him at home to report the CVP readings, he would not have returned to the hospital to evaluate the patient and he would have said “thank you very much” and then hung up the telephone. The attorneys for the parties to the Virginia medical malpractice case believe that the defendant expert’s testimony was critical in the jury determining that the defendants’ actions or omissions did not cause or contribute to the man’s death, thereby resulting in the defense verdict.

After the Virginia medical malpractice jury returned its defense verdict, one of  the plaintiff’s lawyers stated, “I thought the first three days of trial went exceedingly well for the plaintiff. But clearly the expert for the [defendant hospital], whom they paid $20,000 to testify, created doubts in the minds of the jurors as to the cause of death.”

The plaintiff indicated that she would appeal the defense verdict, stating, “I was disappointed but I wasn’t surprised. I knew that this was a long shot, and I was going up against a big opponent. I owe it to [my husband] to try and find the answers.”

Source

If you or a loved one suffered an unexpected injury or death following surgery in Virginia or in another U.S. state, you should promptly find a Virginia medical malpractice attorney or a medical malpractice attorney in your U.S. state who may investigate your surgical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to be connected with medical malpractice lawyers in Virginia or in your state who may assist you.

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$2.78M Pennsylvania Medical Malpractice Verdict For Too High Tracheostomy September 1st, 2015

162017_132140396847214_292624_nOn August 21, 2015, after a five-day trial and five hours of jury deliberations, a Pennsylvania medical malpractice jury returned its verdict in favor of the plaintiff in the amount of $2.78 in a Pennsylvania medical malpractice case against a general surgeon who allegedly placed the plaintiff’s tracheostomy too high.

As a result, the plaintiff is required to breathe through a tracheostomy tube for the rest of her life (which must be replaced every three months) and to use a valve in order to speak. Because her airway is no longer protected, she is at constant risk of drowning if water should enter her unprotected airway. The jury’s verdict included close to $1.2 million for future medical expenses and more than $1.6 million for lost wages, pain, and suffering.

The Alleged Underlying Facts

The woman was involved in a car accident that caused her to lose consciousness. She also suffered blunt force trauma to her head and abdominal bleeding. She was brought to the defendant hospital where the defendant general surgeon operated on her to repair her lacerated liver. After surgery, the woman remained intubated for several days during which time her airway swelled. An ENT recommended that the woman be given steroids to treat the swelling of her airway but the defendant general surgeon allegedly prescribed smaller does of steroids that resulted in the continuation of airway swelling.

Subsequently, the ENT recommended a pulmonary consultation for a possible extubation using a bronchoscope. However, the defendant general surgeon allegedly did not obtain the pulmonary consultation but instead performed a tracheostomy during which he had difficulty identifying the necessary landmarks for the incision (the woman was morbidly obese and had a short, thick neck).

Several days after the tracheostomy, the woman experienced swelling and an airway obstruction was found, leading to the placement of a smaller tracheostomy tube. The woman was subsequently discharged from the hospital but returned weeks later due to a neck and chest wall skin infection. During that hospital visit, it was discovered that the woman had an airway obstruction, swelling, and airway collapse at multiple levels. It was determined that the tracheostomy had been misplaced at the level immediately below the cricoid cartilage (i.e., too high, according to the plaintiff).

The woman subsequently came under the care of an ENT who revised the tracheostomy in order to lower the incision and operated on the woman’s larynx and vocal cords. The woman required additional surgeries in 2009 and 2011 that involved using portions of her ribs and cartilage for reconstruction.

The woman’s medical malpractice case against the defendant general surgeon and the defendant hospital alleged that the defendants failed to provide her with the appropriate doses of steroids while she was intubated, failed to obtain the pulmonary consultation about proceeding with extubation before deciding on and performing the tracheostomy, and placed the tracheostomy too high, which caused permanent injury to her larynx and trachea.

The defendants denied that the standard of care had been breached and further argued that the plaintiff failed to comply with her home care regimen, failed to change her tube daily, and failed to wear a high-humidity collar on a regular basis. The defendants also contended that the woman had a pre-existing condition that required that the tube remain in place permanently.

Source

If you or a loved one may have suffered serious injury (or worse) as a result of the medical negligence of a general surgeon in Pennsylvania or in another U.S. state, you should promptly find a local medical malpractice lawyer in Pennsylvania or in your U.S. state who may investigate your general surgeon medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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California Hospital Medical Malpractice Lawsuit Filed For Death Of 20-Month-Old August 31st, 2015

162017_132140396847214_292624_nA California medical malpractice lawsuit was recently filed against a California hospital for the death of a 20-month-old child who died while an inpatient at the hospital after having what was described as successful surgery. The child died allegedly as a result of too much sedation or due to aspiration, either cause leading to hypoxia, while the child’s mother slept at his bedside. An autopsy was preformed on the child’s body to determine the cause of death, but 14 months later, the results of the autopsy have not been released.

The mother’s California medical malpractice/wrongful death lawsuit alleges that her son had surgery at the defendant hospital on May 23, 2014. Her son spent several days in the ICU following the successful surgery, and was transferred to a hospital ward on May 30, 2014. The child appeared to be recovering from his surgery, with his condition reported as stable as of June 1, 2014. However, the child was pronounced dead during the early morning of June 2, 2014, while his mother slept by his bedside.

The child’s mother alleges in her medical malpractice lawsuit that the defendant hospital was at fault because the child did not have his vital signs monitored at the time he stopped breathing as a result of being given an overdose of pain medication. Because the child’s vital signs were not being closely monitored, the hospital’s nursing staff was not warned that the child was in distress in time to properly respond to the dire situation and save his life.

Source

The alleged facts of this California medical malpractice lawsuit are indicative of the serious flaw and unfairness in California’s medical malpractice law that caps (limits) the amount of noneconomic compensatory damages that can be recovered for a precious life lost so young due to alleged medical negligence: is $250,000 fair, adequate, or just compensation for such a loss?

Caps on noneconomic damages in medical malpractice cases are very beneficial for medical providers whose negligence or incompetence causes the most serious or catastrophic injuries to innocent patients, but those who are harmed the most by medical negligence are also harmed the most by the artificial and arbitrary limits placed on the amount that they can recover for their losses.

Do victims of medical malpractice obtain justice when they are not fully and fairly compensated for their losses caused solely by the negligence of medical providers that could not have been anticipated or controlled by the victims? Legislators who pass the laws that limit or restrict the amount of compensation that those harmed by medical negligence may obtain for their injuries should not be permitted to substitute their political agendas and their opinions of what is just, fair, and adequate, for the verdicts of unbiased medical malpractice juries following full adversarial proceedings. No one group in our society should be granted favorable treatment that results in others being severely harmed. Full personal responsibility for acts that harm others must be the norm, not the exception.

If you or a loved one suffered injuries (or worse) as a result of medical negligence in California, you should promptly find a California medical malpractice attorney who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find California malpractice lawyers who may assist you.

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Arizona Doctor Accused Of Sexual Abuse Of Patients, Improperly Prescribing Pain Medications August 30th, 2015

162017_132140396847214_292624_nAn Arizona physician finds himself defending against numerous claims of improper professional conduct, including multiple claims that he sexually abused patients and many claims that he improperly prescribed large doses of powerful pain medications for patients who were not properly examined before obtaining the prescriptions.

The Sexual Battery Allegations

It has been reported that three patients of the family physician have filed lawsuits against him, alleging inappropriate sexual contact. The patients allege that they were patients of the defendant doctor when he committed sexual battery by offensive, unwarranted, unwanted and unsolicited touching of their bodies. The plaintiffs seek compensatory damages for their severe emotional distress, great mental and physical pain, anguish, and anxiety that have interfered with their daily activities.

The Improper Prescription Painkillers Allegations

Earlier this year, the Arizona Attorney General reportedly filed a complaint citing the Arizona Racketeering Act and the Arizona Forfeiture Reform Act against the doctor and his wife in order to prevent, restrain, and remedy the racketeering acts of the doctor and his wife and their participation in an enterprise through racketeering. The complaint alleges that the doctor is the subject of pending Arizona Medical Board investigation(s) into acts that may constitute racketeering offenses.

The Arizona Attorney General’s complaint alleges the unlawful possession, sale or transportation of prescription drugs, dangerous drugs and narcotic drugs; participating in or assisting a criminal syndicate; fraudulent schemes and practices; theft, forgery, illegal enterprise, money laundering, conspiracy and facilitation, according to published reports. The allegations are based on the results of an investigation by federal agents that allegedly found that the Arizona doctor routinely prescribed controlled medications to patients without examining them or without determining the medical necessity of the prescribed medications for the patients. The investigators reportedly found at least seven patients who had been prescribed the powerful pain medication oxycodone and were reselling their drugs.

The Arizona Attorney General’s complaint, which was filed in April 2015, seeks forfeiture from the Arizona doctor and his wife in the amount of $1.9 million (if the doctor and his wife are found to have violated the Arizona laws, the amount they allegedly received from illegal activities, which the complaint alleges to be $645,581, may be tripled pursuant to Arizona law).

Source

If the Arizona allegations against the family doctor are proven true, the doctor’s actions should serve as a cautionary example of how a physician’s improper professional activities may seriously or permanently harm multiple patients who come in contact with the physician. A doctor who has the authority to prescribe controlled and dangerous pain killers that are widely subject to abuse, such as oxycodone, may cause wide-spread harm when his prescription authority is abused: not only are the patients who are improperly prescribed and provided the powerful medications harmed, but also the families of the patients who are affected by their loved ones’ downward spiral and others who are affected by destructive behaviors that are associated with illegal drug activities, such as theft, robbery, and burglary.

If you or a family member were harmed by a drug prescribed by a physician in Arizona or in another U.S. state, you should promptly contact an Arizona medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your prescription medication claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find medical malpractice attorneys in your state who may assist you.

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Arrested Texas Neurosurgeon Remains In Jail August 29th, 2015

162017_132140396847214_292624_nOn August 21, 2015, a Texas judge refused to lower the $600,000 bail set for a neurosurgeon who had practiced in Texas before his medical license was revoked in December 2013 as a result of the Texas Medical Board determining that the neurosurgeon had exhibited a pattern of failing to follow appropriate procedures before surgeries and failing to respond to complications that led to at least two deaths.

The 44-year-old former neurosurgeon faces five criminal counts alleging aggravated assault causing serious bodily injury and a single count of injuring an elderly person that occurred at three Texas hospitals. The neurosurgeon has been in jail since his arrest on July 21, 2015.

It is alleged that the former neurosurgeon intentionally, knowingly, and recklessly performed spinal surgeries that severely injured four patients and resulted in the death of one patient. In addition, the neurosurgeon is reportedly under investigation for at least ten other surgeries that he allegedly screwed up that took place in Plano and Dallas, Texas, which placed his patients’ lives at risk (for example, it is alleged that he caused a patient to suffer major blood loss as a result of severing a major vein and then failed to take proper action to correct the mistake, and he left a surgical sponge in another patient after completing surgery).

The neurosurgeon reportedly wrote an email to his employee on December 11, 2011 in which he allegedly stated, “I am ready to leave the love and kindness and goodness and patience that I mix with everything else that I am and become a cold blooded killer.”

Source

The Texas Medical Board’s June 26, 2013 Findings

On June 26, 2013, the Texas Medical Board temporarily suspended the neurosurgeon’s Texas medical license after finding that he had violated the standard of care with regard to four of his patients: he failed to recognize and treat a retroperitoneal hemorrhage in one patient, leading to the patient’s death; he inadequately diagnosed, planned, and managed a surgical procedure leading to excessive blood loss and the death of another patient; he demonstrated poor judgment and insufficient knowledge of a patient’s regional anatomy that led to his attempt to enter a disc space in spite of complications compromising the procedure, and he failed to manage severe postoperative complications (an esophageal injury and retained sponge), in a third patient; and, he failed to properly perform spinal surgery on a fourth patient, leading to excessive blood loss, cord compression that was not immediately corrected, and quadriparesis.

The Texas Medical Board also found that the neurosurgeon was unable to practice medicine with reasonable skill and safety due to impairment from drugs or alcohol.

The Texas Medical Board’s December 6, 2013 Action

The Texas Medical Board and the neurosurgeon agreed to the revocation of his Texas medical license on December 6, 2013, for his violation of the standard of care with regard to six patients (however, the Board found no evidence that the neurosurgeon was under the influence of alcohol or drugs during procedures), but granted the neurosurgeon the right to apply for reissuance of his Texas medical license after one year.

If you or a family member may be the victim of medical negligence or incompetence in Texas, you should promptly find a Texas medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find Texas medical malpractice attorneys who may assist you.

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Kentucky Appellate Court Applies Res Ipsa Loquitor In Medical Malpractice Case August 28th, 2015

162017_132140396847214_292624_nIn a decision by the Commonwealth of Kentucky Court of Appeals (“Appellate Court”) issued on August 14, 2015 in a medical malpractice case filed by a prison inmate against the medical services providers at the detention center in which he was incarcerated, the Appellate Court held, “We believe that the res ipsa loquitor exception can apply in this case and that material facts are still at issue which would preclude summary judgment.”

The Appellate Court stated that except in limited factual circumstances, the plaintiff in a medical negligence case is required to present expert testimony that establishes (1) the standard of skill expected of a reasonably competent medical practitioner and (2) that the alleged negligence proximately caused the injury. However, Kentucky recognizes two exceptions to the expert witness rule in medical malpractices cases: both exceptions involve the application of the res ipsa doctrine and permit the inference of negligence even in the absence of expert testimony.

One exception involves a situation in which any layman is competent to pass judgment and conclude from common experience that such things do not happen if there has been proper skill and care (for example, where the surgeon leaves a foreign object in the body or removes or injures an inappropriate part of the anatomy). The second occurs when medical experts may provide a sufficient foundation for res ipsa loquitor on more complex matters (for example, where the defendant doctor makes admissions of a technical character from which one could infer that he or she acted negligently).

The Underlying Facts

The plaintiff was suffering from diverticulitis and had previously had sixteen inches of his colon removed by the time he was incarcerated in 2009. In May 2010, he was experiencing abdominal pain, nausea, vomiting, constipation, and fever, and he sought medical treatment at the detention center. The plaintiff alleged that timely and proper medical care for his serious condition was not provided to him, despite repeated requests, resulting in hospitalization in the ICU of a local hospital due to severe dehydration, a bowel obstruction, and a possible ruptured esophagus. He also developed respiratory failure and had to be intubated. He underwent an exploratory laparotomy on the second day of his hospitalization that revealed multiple adhesions to his small bowel which caused an obstruction that had to be surgically repaired.

The plaintiff’s medical malpractice lawsuit named numerous defendants, including the medical director of the detention center and a nurse. All of the defendants moved for summary judgment, and the trial court granted summary judgment in favor of the medical director and the nurse because the plaintiff did not have an expert medical opinion regarding their roles in his injuries (without an expert to testify as to their roles, the trial court held that the plaintiff could not prove breach of duty and causation).

The Appellate Court stated that the defendant medical director was not only the primary medical caregiver of the detention center but also oversaw all aspects of the medical care received by the inmates. The medical director’s contract required him to visit the detention center once a week but he only visited the detention center once a month – he delegated the weekly visits to the defendant nurse.

The defendant medical director was not even aware of the plaintiff until he was transported to the hospital – the defendant nurse did not inform the medical director with regard to the inmates she saw at the detention center. The medical director and defendant nurse were the only medical providers qualified to diagnose medical conditions and prescribe at the detention center, and they were the primary medical caregivers for the plaintiff. The defendant nurse did not examine the plaintiff until he had been in the detention center’s medical observation unit for five days, and she failed to check on his progress after her initial examination of the plaintiff.

The Appellate Court held, based on these facts, coupled with the plaintiff’s testimony regarding the pain and suffering he endured until he was hospitalized, that the plaintiff met the res loquitor exception regarding the requirement for medical expert testimony: a layperson could conclude that the defendant medical director and defendant nurse did not effectively communicate with the detention center’s staff and that they did not properly oversee the plaintiff’s care, and that the plaintiff’s improvement once he was hospitalized could support a layperson concluding that the lack of communication and oversight contributed to the plaintiff’s prolonged pain and suffering.

The Appellate Court held that the trial court erred in granting summary judgment in favor of the defendant medical director and defendant nurse because whether or not they provided adequate medical care in these circumstances is something a layperson can understand, and the res ipsa loquitor exception would apply.

Source Siestma v. Adams, M.D., No. 2013-CA-001159-MR.

If you or a loved one may be the victim of medical negligence that occurred while incarcerated, you should promptly find an inmate medical malpractice lawyer who may investigate your inmate medical malpractice claim for you and represent you in an inmate medical malpractice lawsuit, if appropriate.

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$4.1M Florida Medical Malpractice Verdict Overturned On Appeal August 27th, 2015

162017_132140396847214_292624_nIn its decision filed on August 26, 2015, the Third District Court of Appeal State of Florida (“Appellate Court”) overturned a Florida medical malpractice jury’s award of damages in the amount of $4,101,776 to a young child and her parents. The Florida medical malpractice jury had determined that the defendant pediatrician, who was the child’s primary pediatrician for the first six years of her life, was negligent in his failure to timely diagnose the young child’s kidney disease, which ultimately led to renal failure, the need for dialysis, and multiple kidney transplants.

The Underlying Facts

The defendant pediatrician performed routine urinalyses for the child that revealed elevated levels of protein in the child’s urine (which is a potential indicator of kidney disease) in five separate urinalyses over the first three years, for which the defendant pediatrician did not follow up because he believed that each of the samples had been contaminated with bacteria because the child was still in diapers. A sixth urine specimen showed no elevated protein levels after which no further urine samples were collected or tested between the ages of three and six (the child exhibited no symptoms of any illness and appeared healthy although she was small and underdeveloped for her age).

When the child began exhibiting abnormal symptoms, including periodic episodes of swelling around her eyes and in her legs, excessive drinking and urination, and abnormal weight gain of six pounds over a period of one-month, her parents brought her to the hospital. A kidney biopsy noted elevated levels of C1q protein and the child was diagnosed with Diffuse Proliferative Immunecomplex Glomerulonephritis, but no formal diagnosis of the underlying disease that caused the kidney failure and no opinion regarding the onset or duration of kidney disease were made at that time.

About seven months later, the child had successful kidney transplant surgery during which her diseased kidneys were removed. Nonetheless, the child will likely need dialysis and additional kidney transplants during her lifetime.

The plaintiffs filed their Florida medical malpractice lawsuit against the defendant pediatrician, alleging that the child’s kidney failure is the result of C1q nephropathy, which takes years to cause the type of damage observed in the removed kidneys, and should have been discovered by the defendant pediatrician before the disease caused end-stage renal failure.

The defendant pediatrician alleged that the child did not have chronic, longstanding disease of C1q nephropathy, but rather a faster-moving disease called Rapidly Progressive Glomerulonephritis (“RPGN”). He also argued that even if the underlying disease was in fact C1q nephropathy and had he correctly diagnosed the illness, there was nothing that he could have done to prevent the child’s renal failure and the resulting dialysis and kidney transplants.

A pre-trial court order limited both sides to one expert per medical specialty. However, the plaintiffs were allowed to call four expert pathologists during trial to testify regarding the timing and diagnosis of the disease but the defendant was limited to one expert. The plaintiff also called their designated expert nephrologist to testify at trial regarding how different the result would have been had C1q been diagnosed earlier, but the expert refused to specifically state that the child would have recovered in full or that she would not have needed to go on dialysis or have kidney transplant surgery had her disease been diagnosed earlier.

The defendant’s designated expert nephrologist testify that there was no known treatment for the types of C1q nephropathy that could have caused the child’s renal failure, so even assuming the child had C1q nephropathy and the defendant had made that diagnosis after the first urine test, the child still would have required dialysis and a kidney transplant (the defendant’s expert also testified that if the child had RPGN instead of C1q nephropathy, there is no way that the defendant could have discovered the disease in time to save the child’s kidneys).

During the plaintiffs’ closing argument to the jury, the plaintiffs’ lawyer told the jury that the child clearly had C1q nephropathy, not RPGN, because so many physicians had testified during trial that C1q had caused her kidney disease. The plaintiffs’ attorney also told the jury that the plaintiffs’ expert nephrologist had testified the child could have been completely cured with the use of some steroids and ACE inhibitors had she been diagnosed earlier, which the Appellate Court found to be completely fabricated because the expert had not provided such testimony.

The Appellate Court overturned the Florida medical malpractice jury’s verdict based on the plaintiffs’ violation of the one expert per specialty rule and for materially misrepresenting the evidence in closing arguments, both of which the Appellate Court said unfairly and materially prejudiced the defendant pediatrician and denied him his right to a fair trial. The Appellate Court concluded, “The plaintiffs in this case resorted to unfair tactics to secure a jury verdict in their favor. They violated the one expert per specialty rule by offering, over [the defendant’s]  objection, the testimony of four pathologists regarding the type of disease that had caused [the child’s] injuries. Then, in closing argument, they misrepresented the evidence by telling the jurors that they had heard conclusive evidence of causation when no such evidence had been presented. The combination of these errors gave the jury the impression that several doctors believed the disease that caused [the child’s] renal failure was C1q nephropathy and that C1q nephropathy could have been easily treated. These errors clearly deprived [the defendant] of a fair trial. Accordingly, we conclude that the trial court erred by denying [the defendant’s] motion for a new trial. Reversed and remanded.”

Source Vargus, et al.. v. Gutierrez, et al., Nos. 3D14-48 & 3D13-1923.

If you or a loved one were harmed as a result of medical malpractice in Florida, you should promptly find a Florida medical malpractice lawyer who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Visit our website to submit a short, secure form, or call us toll-free in the United States at 800-295-3959, to find medical malpractice attorneys who may assist you.

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Federal Appeals Court Discusses Deliberate Indifference To A Serious Medical Need In Inmate Cases August 26th, 2015

162017_132140396847214_292624_nIn an opinion filed on August 19, 2015 by the United States Court of Appeals for the Seventh Circuit (“Court of Appeals”), the appellate court discussed the high and often unfair hurdles faced by prison inmates alleging the deliberate indifference to their serious medical needs (that is, with knowing of a serious risk to inmate health or safety but responding ineffectually as by departing substantially from accepted professional judgment or not at all). In the case it was deciding, the district judge granted summary judgment in favor of the defendants on both of the inmate’s claims (the inmate had also included a retaliation claim).

The Court of Appeals extensively discussed the egregious lack of proper medical care that the plaintiff inmate had received over the course of years (the inmate had gastroesophageal reflux disease (GERD) for which he was prescribed Zantac that required strict dosing that the defendants repeatedly and intentionally failed to follow, including the failure to provide the inmate with access to Zantac, exposing the inmate to serious pain and the risk of serious gastrointestinal injury).

The Court of Appeals stated that a member of a prison’s staff is deliberately indifferent and thus potentially liable to an inmate if he knows of and disregards an excessive risk to inmate health. In the present case, the Court of Appeals stated that the inmate makes two distinct claims of deliberate indifference and that the evidence that the Court of Appeals reviewed tends to substantiate both claims.

The Court Of Appeals Cites “Reputable Medical Websites”

The Court of Appeals heavily referenced reputable medical websites in support of its analysis of the inmate’s deliberate indifference claim. The Court of Appeals stated, “In citing even highly reputable medical websites in support of our conclusion that summary judgment was premature we may be thought to be ‘going outside the record’ in an improper sense. It may be said that judges should confine their role to choosing between the evidentiary presentations of the opposing parties, much like referees of athletic events. But judges and their law clerks often conduct research on cases, and it is not always research confined to pure issues of law, without disclosure to the parties … We must acknowledge the need to distinguish between judicial web searches for mere background information that will help the judges and the readers of their opinions understand the case, web searches for facts or other information that judges can properly take judicial notice of … and web searches for facts normally determined by the factfinder after an adversary procedure that produces a district court or administrative record. When medical information can be gleaned from the websites of highly reputable medical centers, it is not imperative that it instead be presented by a testifying witness. Such information tends to fall somewhere between facts that require adversary procedure to determine and facts of which a court can take judicial notice, but it is closer to the second in a case like this in which the evidence presented by the defendants in the district court was sparse and the appellate court need only determine whether there is a factual dispute sufficient to preclude summary judgment … We are not deeming the Internet evidence cited in this opinion conclusive or even certifying it as being probably correct, though it may well be correct since it is drawn from reputable medical websites. We use it only to underscore the existence of a genuine dispute of material fact created in the district court proceedings by entirely conventional evidence, namely [the inmate’s] reported pain … There is a high standard for taking judicial notice of a fact, and a low standard for allowing evidence to be presented in the conventional way, by testimony subject to cross examination.”

In further support of its decision, the Court of Appeals stated, “He [the inmate] could not afford to pay an expert witness. He had no lawyer in the district court and has no lawyer in this court; and so throughout this litigation (now in its fourth year) he has been at a decided litigating disadvantage. He requested the appointment of counsel and of an expert witness to assist him in the litigation, pointing out sensibly that he needed ‘verifying medical evidence’ to support his claim. The district judge denied both requests, leaving [the inmate] unable to offer evidence beyond his own testimony that he was in extreme pain when forbidden to take his medication with his meals. The web sites give credence to [the inmate’s] assertion that he was in pain. But the information gleaned from them did not create a dispute of fact that was not already in the record It is heartless to make a fetish of adversary procedure if by doing so feeble evidence is credited because the opponent has no practical access to offsetting evidence.”

The Court of Appeals further stated, “Pure adversary procedure works best when there is at least approximate parity between the adversaries. That condition is missing in this case, in which a pro se prison inmate, incapable of retaining an expert witness (expert witnesses usually demand to be paid—and how would this inmate even find an expert witness?), confronts both a private law firm and the state attorney general. Because of the profound handicaps under which the plaintiff is litigating and the fact that his claim is far from frivolous, we urge the district judge to give serious consideration to recruiting a lawyer to represent [the inmate].”

The Court of Appeals reversed the district court’s granting summary judgment in favor of the defendants and remanded the case for further proceedings consistent with the Court of Appeals’ opinion.

Source Rowe v. Gibson, et al., No. 14-3316.

If you or a loved one may have a claim involving deliberate indifference to a serious medical need involving a present or former inmate, you should promptly find an inmate medical malpractice lawyer who may investigate your deliberate indifference claim for you and represent you in an inmate medical malpractice lawsuit, if appropriate.

Click here to visit our website or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may assist you with your deliberate indifference medical malpractice claim.

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Kentucky Supreme Court Addresses Informed Consent In Medical Malpractice Cases August 25th, 2015

162017_132140396847214_292624_nIn its opinion filed on August 20, 2015, the Supreme Court of Kentucky (“Kentucky Supreme Court”) addressed whether the informed consent instruction given by the trial court in a Kentucky medical malpractice case correctly incorporated the applicable law so as to guide the jury accurately in its determination. The Kentucky Supreme Court concluded in the case it was deciding that the informed consent instruction that was given was not correct.

The Underlying Facts

The plaintiff, who had a history of back problems that included two prior surgeries and foot drop, sought treatment for her back and leg pain from the defendant orthopedic surgeon. An MRI revealed a disc herniation, multilevel stenosis, and disc degeneration at the lower levels of the plaintiff’s spine. Conservative medical treatment failed and the defendant orthopedic surgeon agreed to perform a difficult and risky lumbar laminectomy and decompression procedure involving the removal of bone and scar tissue from the plaintiff’s lumbar spine. The plaintiff began to experience weakness in her lower extremities shortly after surgery and eventually suffered incontinence and permanent paralysis from her waist down as a result of the surgery.

The plaintiff alleged in her Kentucky medical malpractice lawsuit that the defendant orthopedic surgeon was negligent in his performance of the surgical procedure and was negligent in his failure to adequately inform her of the possible risks associated with the surgery (the plaintiff claimed that prior to the surgery she was not informed by the defendant or anyone else that paralysis or the loss of her bladder and bowel functions were possible risks associated with the surgery). Both sides presented expert testimony at trial on both theories of negligence. The trial court gave a separate jury instruction on each theory of liability. The jury returned verdicts for the defendant on both theories. The plaintiff appealed and the Kentucky Court of Appeals affirmed the judgment.

The Kentucky Supreme Court stated that the issue before it was whether the informed consent instruction given by the trial court correctly incorporated the applicable law so as to guide the jury accurately in its determination.

The Standard Of Review For Alleged Errors In Jury Instructions

The Kentucky Supreme Court discussed whether allegations of jury instruction errors are to be reviewed by appellate courts de novo or for abuse of discretion (i.e., whether an appellate court reviewing that decision should decide the matter de novo, based upon its own perception of the legal theories that may be deduced from the evidence and accepted by a reasonable juror, or whether the reviewing court should apply the abuse of discretion standard, thus giving a measure of deference to the trial judge’s perspective of how the evidentiary facts relate to the tendered instructions).

The Kentucky Supreme Court held that when the question is whether a trial court erred by (1) giving an instruction that was not supported by the evidence or (2) not giving an instruction that was required by the evidence, the appropriate standard for appellate review is whether the trial court abused its discretion, stating that the decision to give or to decline to give a particular jury instruction inherently requires complete familiarity with the factual and evidentiary subtleties of the case that are best understood by the judge overseeing the trial from the bench in the courtroom. Because such decisions are necessarily based upon the evidence presented at the trial, the trial judge’s superior view of that evidence warrants a measure of deference from appellate courts that is reflected in the abuse of discretion standard.

However, the Kentucky Supreme Court further held that the substantive content of the jury instructions will be reviewed de novo.

The Informed Consent Issue In The Present Case

The defendant orthopedic surgeon testified during trial that he told the plaintiff that the risks of the surgery were infection, bleeding, nerve damage, dural leak, injury to the nerve, and destabilization of the scoliosis requiring fusion. The written consent form signed by the plaintiff prior to surgery listed those same items and further included injury to the surrounding structures and anesthesia. The defendant conceded that he never used the terms paralysis, incontinence, loss of bowel and bladder control, or any variations thereof, when he explained the surgical risks to the plaintiff. Nonetheless, the defendant argued that “nerve damage” encompasses the entire spectrum of things from the slightest numbness to devastating injury, and thus satisfied the medical standard of care for reasonably informing a patient of the possibility of paralysis and loss of bowel and bladder control.

Kentucky’s Informed Consent Law

KRS 304.40-320 provides: In any action brought for treating, examining, or operating on a claimant wherein the claimant’s informed consent is an element, the claimant’s informed consent shall be deemed to have been given where: (1) The action of the health care provider in obtaining the consent of the patient or another person authorized to give consent for the patient was in accordance with the accepted standard of medical or dental practice among members of the profession with similar training and experience; and (2) A reasonable individual, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedure and medically or dentally acceptable alternative procedures or treatments and substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.

The Kentucky Supreme Court stated that pursuant to KRS 304.40-320, not only must the physician’s action in disclosing the risks be “in accordance with the accepted standard of medical . . . practice among members of the profession with similar training and experience” as stated in Subsection (1), it is further required that the information imparted by the physician be stated so as to provide “a reasonable individual” with “a general understanding of the procedure . . . [any] acceptable alternative[s] … [the] substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other health care providers who perform similar treatments or procedures.”

The Kentucky Supreme Court held that the informed consent instruction given by the trial court in the case it was deciding failed to incorporate the “general understanding” component of the duty provided in Subsection (2), and therefore the instruction given by the trial court did not accurately set forth the applicable law (an informed consent instruction couched only in terms of the general professional standard of care is not close enough).

The Kentucky Supreme Court stated that the question was whether “a reasonable individual” would generally understand that “nerve injury” included the possibility of permanent paralysis below the waist. Because the jury was not so instructed, the Kentucky Supreme Court reversed the judgment and remanded for a new trial on that issue.

Source Sargent v. Shaffer, 2013-SC-000111-DG.

If you believe that a doctor failed to obtain informed consent regarding medical treatment or a medical procedure, you should promptly consult with a medical malpractice attorney in your U.S. state who may investigate your informed consent claim for you and represent you in such a claim, if appropriate.

Click here to visit our website or telephone us toll free at 800-295-3959 to be connected with medical malpractice lawyers in your state who may assist you with your lack of informed consent claim.

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