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$3.4M Delaware Medical Malpractice Verdict December 21st, 2014

162017_132140396847214_292624_nOn December 11, 2014, after a seven-day trial and three hours of jury deliberations, the 52-year-old plaintiff in a Delaware medical malpractice case was awarded $3,425,515 in damages for her loss of income, medical expenses, and her pain and suffering arising out of an allegedly botched surgery on the nerves of her left leg that her experts testified was unnecessary to begin with.

The plaintiff had gone to the defendant plastic surgeon in 2009, complaining of achiness in her left knee and some tingling in the toes of her left foot at night. The defendant, who advertised that he specialized in surgery to relieve nerve compression in legs and feet, performed nine procedures on the plaintiff’s nerves in her left leg on April 5, 2010, after which the plaintiff had severe pain and debilitating cramping.

The defendant’s website states that he is “one of the few Plastic Surgeons on the East Coast who has been specifically trained and dedicated a significant portion of his practice to peripheral nerve surgery in the lower extremities. Peripheral nerve surgeons aim to relieve peripheral nerve compressions mostly in the arms and legs that can cause numbness, tingling, burning pain, balance problems, and loss of toes and feet.”

The plaintiff’s medical experts testified that the plaintiff’s surgery was unnecessary and unwarranted, and that non-operative alternatives, such as physical therapy, should have been discussed with the patient before deciding on surgery. The defendant reportedly noted in the plaintiff’s medical records four months after her surgery that the plaintiff was unable to walk very far or to stand very long, and the defendant further noted, “I am not really sure this is truly nerve pain.” The plaintiff was subsequently diagnosed by other doctors with complex regional pain syndrome that became so severe that her treating doctors considered amputation of her lower left leg.

The plaintiff had been a school teacher on the Eastern Shore of Maryland before the surgery but was unable to do her job after the surgery; she retired in 2012.

The plaintiff’s attorney argued to the jury that the defendant plastic surgeon had breached the standard of care in recommending and performing the surgery (diagnostic testing allegedly did not reveal a nerve problem that could be corrected by surgery), to which the defendant responded that he did not commit medical negligence and that his treatment of the plaintiff was not the cause of the plaintiff’s alleged injury. The jury apparently believed otherwise.

Source

If you or a loved one were seriously injured (or worse) due to medical negligence in Delaware or in another state in the U.S., you should promptly find a Delaware medical malpractice lawyer (or to find a medical malpractice lawyer in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to be connected with Delaware malpractice attorneys or malpractice attorneys in your state who may assist you,.

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14 Indicted In Connection With NECC Fungal Meningitis Outbreak December 20th, 2014

162017_132140396847214_292624_nAccording to a press release issued by the U.S. Department of Justice, a 131-count criminal indictment was unsealed on December 17, 2014 in connection with the 2012 nationwide fungal meningitis outbreak traced back to the New England Compounding Center (“NECC”). The owner/head pharmacist and the supervisory pharmacist of NECC were charged with 25 acts of second-degree murder in Florida, Indiana, Maryland, Michigan, North Carolina, Tennessee, and Virginia. Twelve others associated with NECC (including six other pharmacists, the director of operations, the national sales director, an unlicensed pharmacy technician, two of NECC’s owners, and one other individual) were charged with additional crimes, including racketeering, mail fraud, conspiracy, contempt, structuring, and violations of the Food, Drug and Cosmetic Act.

The fungal meningitis outbreak in 2012 was caused by contaminated vials of preservative-free methylprednisolone acetate (“MPA”) manufactured by NECC, which resulted in 751 patients in 20 states being diagnosed with a fungal infection after receiving injections of NECC’s MPA (64 of those patients in 9 states reportedly died as a result). NECC voluntarily recalled three lots of MPA in September 2012. NECC filed for Chapter 11 bankruptcy protection in response to mounting claims against it, and NECC agreed in late 2013 to create a $100 million fund to compensate victims.

According to the indictment, the two charged with second-degree murder knew that NECC was making MPA in a manner and in an environment in which they could not assure that the drug was sterile. Despite such knowledge, the indictment charges that the two directed and authorized the shipping of MPA to NECC customers nationwide, knowing that physicians would inject NECC’s MPA into their patients and that if the MPA was not in fact sterile, it could kill the patients receiving the contaminated injections.

The indictment further alleges that NECC’s other pharmacists knowingly made and sold numerous drugs in a similar unsafe manner and in insanitary conditions, including the failure to properly sterilize NECC’s drugs, the failure to properly test NECC’s drugs for sterility, and the failure to wait for test results before sending the drugs to customers, and that NECC lacked proper cleaning and failed to take any action when its own environmental monitoring repeatedly detected mold and bacteria within its clean rooms throughout 2012.

The indictment alleges that NECC repeatedly took steps to shield its operations from regulatory oversight by the FDA by claiming to be a pharmacy dispensing drugs pursuant to valid, patient-specific prescriptions when in fact it routinely dispensed drugs in bulk without valid prescriptions, going so far as to use fictional and celebrity names on fake prescriptions to dispense drugs.

The indictment further alleges that NECC’s majority stockholder, and her husband, transferred approximately $33.3 million to eight different bank accounts opened after the NECC bankruptcy filing, despite the bankruptcy court’s order that shareholders not transfer assets.

In announcing the indictment, U.S. Attorney General Eric Holder said, “As alleged in the indictment, these employees knew they were producing their medication in an unsafe manner and in insanitary conditions, and authorized it to be shipped out anyway, with fatal results.”

Source

If you or a family member suffered injury (or worse) due to a defective drug or bad drug, you should promptly find a drug claim lawyer in your U.S. state who may investigate your drug claim for you and represent you in a claim against a drug manufacturer and/or supplier, if appropriate.

Click here to visit our website or call us toll-free at 800-295-3959 to find drug claim lawyers in your state who may assist you.

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Florida Appellate Court: Contaminated Drug Claim Is Not Medical Malpractice Claim December 19th, 2014

162017_132140396847214_292624_nOn December 12, 2014, the District Court of Appeal for the State of Florida Fifth Circuit (“Appellate Court”) issued an opinion in which it stated that the mere fact that a wrongful act occurs in a medical setting does not automatically transform the contested action into one that sounds in medical malpractice; the wrongful act must be directly related to the improper application of medical services and the use of professional judgment or skill.

The plaintiff alleged that he was admitted to the defendant hospital for cardiac bypass surgery. During the surgery, the plaintiff was administered contaminated heparin that caused him to develop a severe bacterial infection that led to the amputation of his left leg and right foot. The plaintiff alleged that the heparin supplier had issued a recall of its contaminated product prior to his surgery but the defendant hospital failed to have adequate procedures in place to respond to the recall.

The plaintiff’s complaint did not name as defendants the physicians or the other health care providers who were involved in his bypass surgery and he did not allege that the administration of heparin as part of the surgical procedure fell below the standard of care or that the health care providers knew or had reason to know that the heparin he was administrated was tainted. The plaintiff’s complaint focused on the administrative policies and actions of the defendant hospital in responding to the recall of the contaminated heparin and did not allege that the defendant hospital was vicariously liable for the negligence of its employees.

The Appellate Court stated that the primary test for whether a claim is one for medical malpractice is whether the claim relies on the application of the medical malpractice standard of care. The Appellate Court stated that if the negligent act occurs during the course of the medical procedure, the complaint sounds in medical malpractice; cases that do not involve professional medical judgment or skill sound in ordinary negligence.

In the case it was deciding, the Appellate Court stated that no medical judgment or skill was exercised by the defendant hospital and the allegedly wrongful act occurred months before the plaintiff’s bypass surgery (the plaintiff’s complaint alleged that the contaminated heparin had been recalled by its manufacturer more than four months before his surgery, and that the defendant hospital still had the recalled heparin in its stock at the time of the surgery). The alleged administrative failure of the hospital to remove the contaminated heparin from its stock was not unique to the hospital setting and does not involve professional medical judgment or skill. The Appellate Court held that the plaintiff’s claim sounds in ordinary negligence rather than medical malpractice, and therefore the Florida Medical Malpractice Act’s presuit notice requirements are not applicable to the facts of this case.

Source Holmes Regional Medical Center, Inc. v. Robert Dumigan, et al., Case No. 5D14-505.

If you were injured as a result of care provided (or not provided) in a hospital in Florida or a hospital in another U.S. state, you should promptly find a Florida medical malpractice lawyer (or a medical malpractice lawyer in your state) who may investigate your hospital claim for you and represent you in a case against a hospital, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to be connected with Florida malpractice lawyers or malpractice lawyers in your state who may assist you.

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Neurosurgeon Who Operated On Wrong Side Of Patient’s Brain Will Not Be Disciplined December 18th, 2014

162017_132140396847214_292624_nA Missouri neurosurgeon who operated on the wrong side of his patient’s brain in April 2013 will not be subject to state disciplinary action due to the wrong side surgery. A letter sent to the patient’s attorney last month advised that the investigation that began as a result of the attorney’s complaint had been completed and the case closed, with no action other than a record of the investigation being retained by the State Board of Registration for the Healing Arts (Division of Professional Registration).

Despite a medical malpractice lawsuit having been filed on behalf of the patient, who requires around-the-clock medical care due to the incident, and the lawsuit having been resolved pursuant to a settlement, the neurosurgeon has apparently dodged any further repercussions as a result of the matter.

What Happened?

On April 4, 2013, the 53-year-old woman was marked with indelible ink on the left side of her head to indicate which side of her brain was to be subject to a craniotomy bypass to address her history of mini-strokes. Photos of the patient before and after the surgery show the marking on the left side of her head and the bandages from the surgery on the right side of her head. As a result of the wrong site surgery, she had to have the correct surgery performed a few days later and is now wheelchair-bound and her speech is unintelligible.

An online inquiry to the Missouri Division of Professional Registration with regard to the current status of the neurosurgeon’s medical license in Missouri indicates that the neurosurgeon has an unrestricted Missouri medical license that expires on January 31, 2016, and that he has no current disciplinary actions against him (“The Division of Professional Registration makes every attempt to ensure accuracy and reliability of the data contained in these documents. Every attempt is made to keep the information up-to-date and accurate”). So how would an ordinary consumer who may be doing his/her due diligence before seeking medical care from the neurosurgeon know about the past incident or that a complaint was filed against him with the State Board of Registration for the Healing Arts that was closed without disciplinary action?

The Missouri Division of Professional Registration states on its website, “The division exists to serve and protect the public from incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty by providing an accessible, responsible and accountable regulatory system that licenses only qualified professionals by examination and evaluation of minimum competency and enforces standards by implementing legislation and administrative rules.”

The neurosurgeon may very well be competent and prospective patients may have no problem in seeking and receiving critical medical care from him, but shouldn’t prospective (and current) patients have easy access to information that may be relevant to their choice in selecting a neurosurgeon as a medical provider?

Source

If you or a loved one suffered injury (or worse) due to wrong side surgery or wrong site surgery in the United States, you should promptly seek the legal advice of a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website to be connected with Missouri medical malpractice lawyers (or medical malpractice lawyers in your state) who may assist you, or call us toll-free in the United States at 800-295-3959.

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New California Supreme Court Case Regarding Medical Malpractice Damages December 17th, 2014

162017_132140396847214_292624_nIn a case decided on December 15, 2014, the Supreme Court of California held that the $250,000 cap on noneconomic damages imposed by Section 3333.2, subdivision (b) of MICRA (“Medical Injury Compensation Reform Act of 1975″) applies only to judgments awarding noneconomic damages (“Only noneconomic damages awarded in court are actually capped”), and that the defendant physician had failed to establish any degree of fault of the co-defendants who had settled the medical malpractice claims against them before trial (had the defendant physician done so at trial, he would have been entitled to a proportionate reduction in the capped award of noneconomic damages).

The Underlying Facts

The 26-year-old plaintiff had gone to the defendant hospital’s emergency room in  April 2007 because he had a severe nosebleed. He returned to the defendant hospital the following month with another severe nosebleed. The defendant physician examined the plaintiff and recommended surgery that was performed the same day. The surgery involved placing a catheter inserted in his leg that led to his nose through which tiny particles manufactured by another defendant were injected to irreversibly block certain blood vessels. However, when the plaintiff woke up after the surgery, he was permanently blind in one eye.

The plaintiff sued the manufacturer of the tiny particles used during his surgery for product liability, failure to warn, negligence per se, breach of express, and implied warranty, alleging that the tiny particles, which were marketed as being uniform in size and thereby allowing accurate targeting of particular arteries, were in fact irregular in size, thereby being able to travel through very small blood vessels and collateral veins and causing the plaintiff’s blindness. He also sued the physician and the hospital, for medical malpractice and medical battery.

The plaintiff settled before trial with the defendant manufacturer for $2 million and he settled with the defendant hospital for $350,000. The trial left only the physician as a defendant. The defendant physician did not provide the jury with any evidence of the hospital’s fault and the trial judge ruled that the defendant physician had failed to provide sufficient evidence of the manufacturer’s fault in order to let the jury make that determination. The jury determined that the defendant physician’s negligence injured the plaintiff and awarded $125,000 for the plaintiff’s future medical care (economic damages), $331,250 for past noneconomic damages, and $993,750 for future noneconomic damages. The court reduced the total noneconomic damages awarded by the jury to $250,000, pursuant to the MICRA cap.

The defendant physician requested that the trial judge impose offsets against the judgment for the pretrial settlements with both the hospital and the manufacturer, which request was rejected because there was no basis for allocating the settlement sums between economic and noneconomic losses, and the jury made no finding as to the settling defendants’ proportionate fault.

California Law

California law allows a nonsettling tortfeasor to set off the amount of a jointly liable tortfeasor’s settlement against damages awarded at trial; however, tortfeasors are jointly liable for only economic damages (Code of Civil Procedure section 877). With regard to noneconomic damages, each defendant is liable only for the amount of noneconomic damages allocated to that defendant in direct proportion to that defendant’s percentage of fault (Civil Code section 1431.2). Therefore, when a pretrial settlement does not differentiate between economic and noneconomic losses, a post-verdict allocation is required because only the amount attributable to the joint responsibility for economic damages may be used as an offset.

The California Supreme Court stated that the defendant physician had failed to establish that any other defendant was at fault and thus section 1431.2 would require him to pay the entire amount of the $250,000 noneconomic damage award, unless MICRA demanded a different result. The California Supreme Court looked to Section 3333.2 of MICRA, which states: “(a) In any action for injury against a health care provider based on professional negligence, the injured plaintiff shall be entitled to recover noneconomic losses to compensate for pain, suffering, inconvenience, physical impairment, disfigurement and other nonpecuniary damage. (b) In no action shall the amount of damages for noneconomic losses exceed two hundred fifty thousand dollars ($250,000).” (emphasis added)

The California Supreme Court determined that the noneconomic “damages” identified in section 3333.2, subdivision (b) are limited to amounts awarded by a court (“Ordinarily, where the Legislature uses a different word or phrase in one part of a statute than it does in other sections or in a similar statute concerning a related subject, it must be presumed that the Legislature intended a different meaning … The distinction between “damages,” which are capped under subdivision (b) of section 3333.2, and “losses,” which are addressed in subdivision (a), is well understood. “Loss” is the generic term, which includes “damage” as a subset … Noneconomic damages, in particular, are ascertainable only at trial. They are inherently nonpecuniary, unliquidated and not readily subject to precise calculation. The amount of such damages is necessarily left to the subjective discretion of the trier of fact … Accordingly, the ordinary meaning of the statutory terms indicates that the noneconomic “damages” identified in section 3333.2, subdivision (b) are limited to amounts awarded by a court.”)

The California Supreme Court held: “We conclude that the cap imposed by section 3333.2, subdivision (b) applies only to judgments awarding noneconomic damages. Here, the cap performed its role in the settlement arena by providing [the hospital] with a limit on its exposure to liability. Had [the defendant physician] established any degree of fault on his codefendants’ part at trial, he would have been entitled to a proportionate reduction in the capped award of noneconomic damages.”

Source Hamid Rashidi v. Franklin Moser, S214430.

If you or a loved one suffered injuries (or worse) as a result of medical negligence in California or in another U.S. state, you should promptly consult with a California medical malpractice attorney (or a medical malpractice attorney in your 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 be connected with California malpractice lawyers or malpractice lawyers in your state who may assist you.

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“Medical Malpractice Reforms Are Necessary To Contain Health Care Costs” … Really? December 16th, 2014

162017_132140396847214_292624_nThe current mantra of medical malpractice tort reformers is that medical malpractice reforms (i.e., limiting or eliminating the right of innocent victims of medical negligence to obtain fair and just compensation for their serious and often permanent injuries and losses) are “necessary” in order to “contain” rising health care costs.

Then And Now

Interestingly, most of the initial medical malpractice tort reforms that were enacted many years ago were in response to the health care industry’s unsupported but often-repeated plea that medical malpractice reforms were necessary in order to address the affordability of increasing medical malpractice insurance costs, coupled with the health care industry’s unveiled threat that those states that did not promptly enact restrictive medical malpractice reforms that harmed the most seriously injured victims of medical malpractice would suffer a crisis in health care in their states due to doctors fleeing to states that “protected” doctors by passing medical malpractice tort reforms that relieved negligent doctors from being fully responsible for their negligent acts and omissions.

The “Why”

The strategy behind the medical malpractice “tort reform” campaign financed by wealthy medical malpractice insurance companies and their organized, powerful, and motivated insureds that protect their financial interests at the expense of medical malpractice victims (who are a disparate group scattered politically, geographically, and socially) is to deflect the public’s focus on addressing and fixing the major causes of medical malpractice (such as incompetent and/or dangerous medical providers whose harmful activities are not timely investigated and curtailed by licensing boards, employers, and are sometimes cloaked in a veil of secrecy and protection by complacent or colluding colleagues) and to promise that consumers will “save money” by acquiescing to proposed medical malpractice reforms that the public believes will never personally affect them or their families (i.e., the misplaced belief that they will not become victims of medical malpractice themselves).

Medical malpractice tort reform proposals take many forms: random caps (limits) on the amount of noneconomic damages (pain, suffering, mental anguish, disfigurement) that disproportionately affect the most seriously and permanently injured; pre-suit notice requirements and mandatory preliminary reviews by medical malpractice review panels that unnecessarily and substantially increase the costs of litigation for medical malpractice victims and often result in victims of clear malpractice who suffered less severe injuries being unable to find a medical malpractice lawyer to take their case; raised evidentiary standards that require medical malpractice victims to prove their claims to a higher standard than victims of other negligence (some states require proof by “clear and convincing evidence” of medical negligence before medical malpractice victims may recover damages from negligent medical providers yet victims of motor vehicle collisions in those same states need to prove negligence by the much lesser “more likely than not” standard); restrictions on the type and qualifications of medical experts who may testify on behalf of medical malpractice victims, including restrictions on the geographic area where the expert maintains a clinical practice, which severely limits the pool of qualified experts who can testify on behalf of medical malpractice victims and thereby increases the costs for expert testimony; protecting the results of formal investigations into unexpected injuries suffered  in hospitals from disclosure to the victims of medical malpractice (i.e., so-called “peer review” investigations into the cause of “adverse events” that unnecessarily harm patients, which are conducted in the ordinary course of business but are considered confidential and privileged and are protected from disclosure by federal and state laws); requiring medical malpractice victims to provide the medical providers who negligently harmed them with signed authorizations permitting the defendants’ attorneys to meet with and discuss the victims’ medical conditions and medical records, ex parte, with the victims’ other health care providers; etc.

The Cure

Clearly, the costly results of medical malpractice in the United States can be substantially reduced by reducing the incidence of medical negligence. Establishing minimum standards and enforcing polices, procedures, and protocols that reduce the incidence of hospital-acquired infections, reduce the likelihood of surgical mishaps, and effectively weed out incompetent health care providers and known repeat medical malpractice offenders following prompt and thorough investigation into their negligent wrongdoing would go a long way in not only reducing medical malpractice costs throughout the United States, but would also measurably improve the quality and quantity of health care in the United States. Nonetheless, the resources to adequately and fairly compensate the innocent victims of medical malpractice must be maintained and protected so that when negligent medical care causes serious injuries and harms, the responsible parties are solely held fully accountable and the victims of medical malpractice and their families are not made to suffer the financial burden of the avoidable harms (and state and federal resources are not substituted for the financial responsibility of the negligent wrongdoer).

The Bottom Line

Why are medical providers granted special privileges and financial protections from being held responsible for the harms they negligently cause to others? The answer may be that medical providers are a highly-educated, highly-motivated, politically active, and well-organized group whose power and influence cannot be matched by the disparate victims of medical malpractice, who had no choice in becoming a medical malpractice victim. Other than plaintiffs’ medical malpractice lawyers and some nonprofit consumer protection groups who help educate, protect, and assist victims of medical malpractice, who represents and speaks up for the innocent victims of medical negligence in the U.S.?

If you, a family member, a loved one, or a close friend may be the innocent victim of medical negligence in the United States, you should promptly consult with a medical malpractice lawyer in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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

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California Hospital Sued For Medical Negligence Leading To Amputations December 15th, 2014

162017_132140396847214_292624_nOn December 11, 2014, a California woman filed a medical malpractice case against a California hospital, alleging that medical negligence required her to have amputations over a period of years following the successful bone marrow transplant she had in 2004.

According to her California medical malpractice lawsuit, the defendant hospital failed to provide her with required vaccinations after her bone marrow transplant that resulted in her being treated for pneumococcal sepsis in another hospital’s ICU on April 29, 2011, that ultimately required the amputation of all of her toes, most of her fingers, and parts of both feet. She may need to have her feet amputated in the future because her wounds will not heal.

The plaintiff alleges that the powerful life-saving drugs she was given at the hospital to treat the pneumococcal sepsis resulted in the lack of blood circulation in her fingers and feet and led to the need for the amputations. The now 49-year-old wife and mother of three, including twin girls, has suffered much as a result of her amputations and so has her family – before she suffered her serious condition, she was an active person who was employed in the health care field and she took care of her busy family; now, she must rely of her husband and children to help her with even simple tasks.

The parties to the California medical malpractice lawsuit are reportedly engaged in mediation efforts to resolve the woman’s medical malpractice case.

The defendant hospital issued a statement in response to the filing of the lawsuit, stating, “Providing the best possible treatment for all patients is City of Hope’s highest priority. In observance of federal and state privacy regulations, we will not comment upon any individual patient.”

Source

The California medical malpractice lawsuit is a sad example where the hospital treatment for an underlying serious medical condition was successful but ancillary treatment was either not provided or was provided negligently. The care and treatment provided in hospitals often requires the involvement of many individuals who must work together as a well-trained and dedicated team who are responsible for providing the proper care at the appropriate time. When even one of those individuals fails to provide care that satisfies the required standard of care, the failure may lead to catastrophic results. For example, a hospital medical technician working in the hospital’s lab may fail to timely report to an attending physician a critical result from a patient’s lab test, resulting in the unnecessary delay in beginning appropriate life-saving treatment, causing the patient to suffer avoidable pain, suffering, disability, or even death.

If you or a loved one suffered serious injury (or worse) as a result of medial negligence that occurred in a hospital in California or in another U.S. state, you should promptly consult with a California medical malpractice attorney or a medical malpractice attorney in your state who may investigate your hospital malpractice claim for you and represent you in a medical malpractice case against a hospital, if appropriate.

Click here to visit our website or telephone us on our toll-free line in the United States (800-295-3959) to be connected with medical malpractice lawyers in your state who may assist you.

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Maryland Appellate Court Overturns $620,000 Medical Malpractice Verdict December 14th, 2014

162017_132140396847214_292624_nIn an unreported opinion of the Court of Special Appeals of Maryland (“Appellate Court”) dated November 5, 2014, which is Maryland’s intermediate appellate court, the Appellate Court overturned a verdict in favor of the Plaintiff in the amount of $620,000 that had been rendered by a Baltimore City medical malpractice jury after a six-day trial.

The Alleged Underlying Facts

The Plaintiff had gone to the emergency room of the University of Maryland Medical System Corporation (“UMS”) during the evening on May 30, 2007, complaining of a persistent headache for several days. At about 7:00 a.m. on May 31, the plaintiff had a lumbar puncture (commonly referred to as a “spinal tap”). The parties to the medical malpractice lawsuit disputed whether the plaintiff was administered narcotic pain medication at that time.

The plaintiff’s medical records indicated that the plaintiff had no complications with regard to the lumbar puncture, that she reported no pain to the nurses for several hours after the procedure, and that she was discharged to home at about 12 noon that day. Nonetheless, the Plaintiff alleged that one of the physicians pushed down on her neck during the lumbar puncture procedure and that she shouted out in pain as a result.

Later in the day on May 31, while the Plaintiff was climbing steps in her home, she had severe pain in her neck, shoulders, and upper back, for which she visited her primary care provider at UMS the next day and was admitted to the hospital. She was subsequently diagnosed with cervical spondylosis/degenerative disc disease and an acute herniated disc at C4-C5, for which she had several surgeries over the next year without complete resolution of her pain.

The plaintiff subsequently filed her Maryland medical malpractice lawsuit, alleging that her herniated disc and the resulting pain was caused by the negligent performance of her lumbar puncture.

The Defendant hospital contended on appeal that the trial court erred when it admitted into evidence an un-redacted medical bill which was used as substantive evidence regarding whether narcotic medication was administered to the Plaintiff during her lumbar puncture on May 31, 2007. Prior to trial, the parties had stipulated to the authenticity of the medical charges from June 1 to June 6, 2007 as part of the Plaintiff’s alleged damages claim, but the hospital’s printed bill included charges from May 30 to May 31, 2007 in addition to charges from June 1 to June 6, 2007. The trial court therefore required that the Plaintiff redact the medications and charges from May 30 and 31, 2007, before the document would be admitted into evidence.

Later in the trial, the Plaintiff’s attorney attempted to question one of the Defendant’s experts regarding hospital billing charges from May 31, in an attempt to substantiate the Plaintiff’s claim that she was administered narcotics on that date because narcotics appeared on the bill. The defense objected but the trial court reversed its original ruling and allowed the Plaintiff to introduce the un-redacted May 30 and 31, 2007 bill, after which the Plaintiff’s attorney questioned the defense witness regarding narcotic medications listed on the bill.

The Appellate Court stated that at no point did the Plaintiff lay a foundation or authenticate the bill – the parties’ stipulation was intended to establish damages that the Plaintiff incurred on June 1 – 6, 2007 and the parties did not stipulate to the authentication of the May billing charges. Furthermore, the Appellate Court said that the bill also lacked a proper foundation because the defense witness through whom the bill was admitted into evidence stated that he could not testify as to what the dates and charges meant.

The Appellate Court stated that introducing the medical bill as substantive evidence that the Plaintiff was given a narcotic became a significant piece of evidence that likely impacted the jury’s deliberations because the defense had argued that the Plaintiff injured herself when she returned home from the emergency room and began climbing her stairs (she had reported a pain level of 0/10 for several hours before she was discharged from the emergency room) and the Plaintiff had countered that the reason she did not feel any pain was because she had been administered narcotic pain medication (yet the treating doctors testified that the Plaintiff was not administered a narcotic and her medical records do not document that she was prescribed a narcotic).

The Appellate Court held: “introducing the medical bill as substantive evidence that she was given a narcotic became a significant piece of evidence that likely impacted the jury’s deliberations. Whether appellee was injured in the emergency room or at home was central to a finding of negligence in this case. Accordingly, the error of permitting the medical bill as substantive evidence to support appellee’s claim that she was injured on May 31 was prejudicial. Furthermore, we conclude that the error substantially injured UMS’ defense because of the timing at which appellee chose to raise this argument … Accordingly, we conclude that the error was substantially prejudicial and therefore, mandates reversal.”

University Of Maryland Medical System Corporation v. Roshell Blue, No. 1541 September Term, 2013.

If you or a family member may have been injured due to medical negligence in Maryland or in another U.S. state, you should promptly seek the legal advice of a Maryland medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website to submit a secure form or telephone us on our toll-free line (800-295-3959) to be connected with medical malpractice lawyers in Baltimore (Maryland) or in your state who may assist you.

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Missouri Whistleblower Case Alleges Substandard Cancer Treatment At Cancer Clinic December 13th, 2014

162017_132140396847214_292624_nThe former medical director of a Missouri cancer clinic, who is a radiation oncologist, has filed a whistleblower wrongful termination case against the cancer clinic, alleging that she was terminated after bringing her concerns to the attention of her employer in 2011 regarding various alleged violations of medical standards by a cancer doctor (medical oncologist) and another radiation oncologist employed by the clinic that affected patient safety.

The cancer doctor was hired by the cancer clinic in the fall of 2010 and was terminated from the clinic in July 2012, allegedly due to substandard care provided to patients that jeopardized their safety. The whistleblower lawsuit alleges that the cancer doctor and the radiation oncologist engaged in inappropriate concurrent chemo-radiation therapies that resulted in financial gain for the clinic. The lawsuit alleged three instances that the whistleblower considered to be inappropriate treatment:

In one instance, a breast cancer patient treated at the clinic received both radiation therapy and chemotherapy at the same time, provided by the cancer doctor and the radiation oncologist, which resulted in the patient suffering serious side effects that included a severe radiation burn to her chest wall that required an interruption in her cancer treatment for more than two weeks.

In another instance, a patient being treated for lymphoma received both radiation therapy and chemotherapy at the same time from the cancer doctor and the radiation oncologist, when the standard treatment regimen was chemotherapy alone. As a result, the patient allegedly had a less chance of being cured, became susceptible to systemic infection and bleeding, and had difficulty in tolerating chemotherapy due to bone marrow compromise from the unnecessary irradiation to a large volume of pelvic bone marrow.

In the third instance, the cancer doctor and radiation oncologist provided concurrent radiation therapy and chemotherapy to a patient for seven to eight weeks, instead of radiation therapy alone for two to three weeks, which resulted in the patient, who had brain metastasis, staying in the hospital for the final months of life due to a life-threatening event resulting from the concurrent cancer treatments.

The cancer doctor, who has no medical malpractice lawsuits filed against him that could be found in court records, is now practicing in another cancer center. The radiation oncologist is still employed by the defendant clinic.

The wrongful termination lawsuit is scheduled to be tried before a jury in March 2015.

Source

If you, a family member, a loved one, or a friend may be the victim of medical malpractice in Missouri or in another U.S. state, you should promptly seek the legal advice of a Missouri medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

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Georgia Appellate Court Discusses Medical Malpractice Expert Qualification Issue December 12th, 2014

162017_132140396847214_292624_nIn its decision dated November 21, 2014, the Court of Appeals of Georgia (“Court of Appeals”) addressed the issue whether a certified nurse midwife (“CNM”) was qualified to offer expert testimony on the standard of care applicable to the defendant hospital’s RNs. In particular, the Court of Appeals had to address OCGA § 24-7-702 (c), which requires that to qualify as an expert in a medical malpractice action, the [non-physician] witness must (1) have actual knowledge and experience in the relevant area through either “active practice” or “teaching” and (2) … be in the “same profession” as the defendant whose conduct is at issue.

The Court of Appeals noted that the Georgia Evidence Code does not define what is meant by the phrase “a member of the same profession,” and Georgia’s case law has not provided a clear definition, yet in those cases where express statutory authority as to what constitutes the same or distinct professions is lacking, the Court of Appeals is guided by professional licensing laws and regulatory schemes to determine whether a witness is a member of the same profession as the person whose conduct is at issue within the meaning of OCGA § 24-7-702 (c) (2) (C) (i).

The Underlying Facts

The plaintiff is the mother of a child with permanent physical and mental disabilities that allegedly resulted from traumatic brain injury that occurred when the child suffered fetal distress and oxygen deprivation during her birth that the RNs attending the labor and delivery negligently failed to detect and to address. In particular, the plaintiff alleged that the hospital’s RNs negligently misread and/or misinterpreted data from a fetal monitor and committed other violations of the applicable standard of care.

At trial, the plaintiff presented the testimony of two expert witnesses (the CNM and an obstetrician) on the question of the nurses’ negligence, concerning whether the RNs attending the labor and delivery breached the standard of care applicable to the RNs. The testimony at trial showed that the CNM practiced as a CNM, both supervising and working with RNs as part of a labor and delivery team, during the five years preceding the plaintiff’s child’s birth, and that she has practiced in the area of labor and delivery for nearly two decades, beginning her career as an RN (holding the same professional license held by the hospital’s RNs). The CNM then acquired additional education and training to become certified as a nurse practitioner and, later, as a CNM. She has practiced as a CNM since 1996 but is also licensed as an RN. She testified that she is familiar with the standard of care regarding reading and interpreting fetal monitoring strips, and that the applicable standard of care for providing those services is the same for RNs and CNMs.

The Georgia medical malpractice jury returned a verdict in favor of the plaintiff. The defendant thereafter filed its motion for new trial, alleging that the trial court erred because the plaintiff’s CNM was not qualified to testify as an expert on behalf of the plaintiff because she was not a member of “the same profession” as the RNs who attended the delivery. The trial court granted the defendant’s motion for new trial, determining that the plaintiff’s CNM expert was not qualified to offer expert testimony on the standard of care applicable to the hospital’s RNs because she, as a CNM, is not a member of the same profession as the RNs, whose conduct was at issue.

The Court of Appeals noted that it is undisputed that the plaintiff’s CNM is both an RN and a CNM (a CNM is an RN who has advanced training in a specialized area), that Georgia law requires a CNM to be licensed as an RN, and that both are regulated by the Georgia Board of Nursing. Furthermore, Georgia’s expert affidavit statute lists only “nurses” and does not have a separate listing for “certified nurse midwives,” and thus that statute does not support an inference that the professions are different. The Court of Appeals held that the plaintiff’s CNM was a member of the same profession as the hospital’s RNs and thus the trial court erred in granting the hospital’s motion for a new trial on the ground that the plaintiff’s CNM could not testify as to the standard of care exercised by the RNs because she is not a member of the same profession.

Dempsey et al. v. Gwinnett Hospital System, Inc., A14A1427; A14A1428.

If you are the victim of medical malpractice in Georgia or in another U.S. state, you should promptly seek the legal advice of a Georgia medical malpractice attorney or a medical malpractice attorney in your state who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.

Click here to visit our website or call us toll-free in the United States at 800-295-3959 to be connected with medical malpractice lawyers in Georgia or in your state who may assist you.

Turn to us when you don’t know where to turn.

You can follow us on FacebookTwitterGoogle+, and LinkedIn as well.