Medical Malpractice
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On Tuesday, February 5, the Minnesota Court of Appeals ruled that a mother who was unhappy with how her baby's circumcision looked cannot sue a hospital in Fridley, Minnesota for medical malpractice.
Unity Hospital and Dr. Steven Berestka were sued by Dawn Nelson who claimed that Berestka removed "the most erogenous tissue" after the boy's birth on January 1, 2000 without consulting either parent. She and David Nelson, her husband, were unhappy with the result.
However, in its decision, the Appeals Court noted that the mother had indicated that the baby should be circumcised on a prenatal form.
Zenas Baer, the mother and son's attorney, said that he was disappointed with the ruling.
Baer said that according to federal regulations, before any surgery can take place, there has to be a signed informed consent form and argued that a check mark in a box on a form is beside the point. He said that the Nelsons plan to appeal.
Initially, Dawn Nelson filed suit against Berestka for alleged assault and battery and negligence. That claim reached a separate settlement. The claims filed against the hospital and Allina Health System, its parent company, went forward.
She claimed that Unity had a duty to verify that the doctor had obtained informed consent and in its informed consent policy, the hospital had been deceptive or misleading. A judge in Hennepin County dismissed the case and the appellate court affirmed his decision.
Comment from Virginia Medical Malpractice Attorney Ben Glass: its tough to win an "informed consent" case. The forms they use are pretty generic and many cases come down to "he said; she said." These are usually losing cases.
Written by Ben Glass on February 13th, 2008 with comments disabled.
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A medical malpractice complaint has been filed against Maryland's Union Memorial Hospital and two doctors there by the family of a woman who was treated at the hospital after a 2006 head-on crash who eventually died.
According to the claim, which was delivered to a Maryland arbitration board, the Nicole Smith's death was the result of a blood clot traveling from her broken leg to her lungs due to improper treatment.
Lew Schon and Yuhman Hong were named as defendants in the complaint along with the hospital. The 22-year-old accident victim was treated by Schon after she was admitted to the hospital on July 8, 2006. During a follow-up appointment, she was examined by Hong on July 20, 2006 and then discharged, according to the complaint.
Three days after Hong discharged her, Smith suffered a heart attack in her home. She died before the paramedics were able to resuscitate her.
The family's attorney, Christian Lodowski, said that the doctors should have been alerted to the possibility of clots because of Smith's condition after the accident. He said that her right leg was badly broken, she was forced to remain immobile in a bed, was taking birth control pills, and was obese. Yet, he said, the doctors ignored the signs of deep-vein thrombosis.
Written by Ben Glass on February 10th, 2008 with comments disabled.
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In a $10 million medical malpractice case, the parties were unable to reach a settlement due to the opposition of the U.S. Attorney's Office to the demand of the plaintiff, Florencia Lewis.
According to the opposition filed by Assistant U.S. Attorney Mikel Schwab, the plaintiff was under the misconception that, in addition to the willingness of the federal government to pay $339,900, the United States was also under obligation to pay the unknown bills from TRICARE, her medical program, which she will submit at a later date.
The suit came about after Lewis allegedly suffered permanent injuries in her left arm and hand as a result of a medical treatment she received at Tripler Army Medical Center in Honolulu, Hawaii in the year 2002. Lewis holds the physicians and health care providers of the government hospital responsible for the injuries.
According to Lewis' complaint, she flew from Guam to Hawaii in August of 2002 in order to receive treatment for hypertension. While she was at Tripler, she was diagnosed with right-sided renal artery stenosis.
According to Lewis' attorney, due to problems and complications during the procedures she underwent as treatment, she allegedly sustained injuries to the nerves of her left arm and hand, pain, disability, emotional distress, and loss of enjoyment of life.
Her attorney added that the employees of Tripler failed to obtain the informed consent of Lewis for the procedures which caused the damages.
Written by Ben Glass on February 7th, 2008 with comments disabled.
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A big difference to hospitals and patients could be made by a slight change in the wording of the malpractice reform law of the state of Georgia.
Georgia Watch, a consumer advocacy group, is making a push for an amendment which would make it easier for patients who believe they have been harmed in the emergency room to file suit against hospitals.
During the 2007 Georgia General Assembly, Senate Bill 286 was introduced by not brought up for vote. Reintroduction is expected during the current session.
A provision in the tort reform law passed in February of 2005, often called SB3, is the target of the bill. According to that law, ER staff can't be held liable for damages unless evidence that is clear and convincing can be provided that the actions of the physician or health care provider "showed gross negligence."
With SB 286, "showed gross negligence would be replaced with "failed to meet the applicable standard of care."
According to Allison Wall, Georgia Watch director, "reckless disregard for the safety of a patient" is what "gross negligence" is most commonly defined as, which is nearly impossible to prove in an emergency room.
"Applicable standard of care" is believed to be more precise. For example, an attorney would be able to use medical records in order to show that the standard treatment protocol for a specific diagnosis was failed to be met by a doctor.
According to Wall, "this wording would at least give patients a chance at achieving accountability."
Written by Ben Glass on February 7th, 2008 with comments disabled.
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On Friday, January 11, a medical malpractice lawsuit was filed against the Hospital of the University of Pennsylvania (HUP), by the family of Anne Ryan, a college sophomore who died from meningitis at the hospital on September 9. The family is alleging misdiagnosis and mistreatment by HUP.
According to the family's lawyer, Thomas Kline, emergency room doctors at HUP failed to properly diagnose Ryan during her initial visit to the hospital on September 6 when she complained of meningitis-like symptoms. He claims that during her second visit on September 8, the doctors then performed a spinal tap that was "unnecessary and unwarranted" and caused her brain to herniate.
A statement was released by the University the day the suit was filed defending the medical team's actions and denying the allegations of misdiagnosis.
According to Kline, Ryan displayed symptoms much like those of meningitis, including fever, nausea, and a head and neck ache upon her initial visit.
According to Kline, an analysis of her spinal fluid came back negative for bacteria, even though blood tests revealed her to have a high white blood cell count and low spinal fluid sugar, evidence of bacterial infection. She was diagnosed as having a viral infection, given nausea medication, and discharged.
After her condition worsened, Ryan returned to the hospital and doctors performed a CAT scan that showed swelling of the brain, said Klein. At that point, Ryan was given antibiotics to treat meningitis, but the doctors also performed a second spinal tap, which Kline alleges was the cause of Ryan's brain herniating
Written by Ben Glass on February 6th, 2008 with comments disabled.
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Virginia is a very conservative state for practicing medical malpractice law. The Virginia docs won't testify against another doc, the university based medical school have basically told their docs that they'll get fired if they even try to help a patient and we have one of the worst malpractice cap laws in the country.
And they just want to make it harder....
Here's the text of a bill introduced during this legislative session:
Medical Malpractice Settlement Offer and Recovery Act. Provides that a defendant in a medical malpractice case may make an irrevocable settlement offer within 180 days after responsive pleadings were filed. The offer shall provide for the payment of the plaintiff's net compensatory damages and attorney fees in an amount equal to 10 percent of these damages, however it shall not provide for punitive or exemplary damages. The plaintiff has 30 days to accept or reject the offer. If the offer is rejected, the plaintiff's case proceeds with the increased burden that he prove by clear and convincing evidence that his injuries resulted from the defendant's gross negligence or wanton and willful misconduct.
The patrons of the bill are Athey, Carrico, Cole, Lingamfelter and Sherwood.
Frankly, each one should be ashamed of themselves. They definitely "have it in for" each citizen in their District who may at some point become a patient of a doctor.
Fortunately, this bill was killed before it had a chance to breathe
Written by Ben Glass on February 5th, 2008 with comments disabled.
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The United States has agreed to pay $750,000 as a settlement for a medical malpractice suit filed by the family of a woman from Florida who died after undergoing eight surgical procedures in a little over a month at Jacksonville Naval Hospital in Jacksonville, Florida in 2005.
Justice Department attorneys and relatives of Betty Jean Plato informed their court-appointed mediator on Wednesday, January 16 of their agreement to settle the case.
In 2005, 76-year-old Plato died of a blood infection after going to the hospital emergency room at Jacksonville Naval Air Station with pains in her abdomen. Over a period of 35 days, she underwent eight surgical procedures.
The malpractice lawsuit Plato's family filed accused the Navy of failure to properly evaluate or diagnose her condition, provide reasonable care, or transfer her in a timely manner to a facility that was properly equipped to manager her condition.
According to Sean Cronin, the attorney for the family of Plato, they are pleased with the settlement.
After the settlement of Plato's case, there are still five pending lawsuits against the hospital in Jacksonville's U.S. District Court. In recent years, the facility has been repeatedly sued for allegedly providing substandard care.
Comment from Virginia medical malpractice attorney Ben Glass. This case was filed under the Federal Tort Claims Act (FTCA).
Written by Ben Glass on February 4th, 2008 with comments disabled.
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It has been discovered that another doctor has been committing medical malpractice by reusing syringes to administer injections to patients. Last fall Dr. Jacob Simhaee, an obstetrician-gynecologist reused syringes while administering flu shots to at least 36 patients.
Simhaee is not the first doctor to commit such an act of medical malpractice. Late in 2007, it was discovered that Dr. Harvey Finkelstein of had reused syringes on several of his patients, infecting them with blood borne diseases.
The New York State Department of Health says that Simhaee is contacting these patients in writing with a letter composed by them. He was asked to sign the letter and will also contact the patients over the phone.
The investigation into the practice of Simhaee was initiated in December after a complaint was filed with the Nassau County Department of Health.
The case of Simhaee was a much quicker response by the state than with the case of Finkelstein. In that case, the state waited three years before they released details to the public and notified approximately 11,000 patients of his reuse of syringes. As a result, thousands of patients were exposed to blood-borne pathogen infections, resulting in transmission of hepatitis C. Finkelstein has more settlements for malpractice than any other pain-management specialist in the Long Island area and, on average, had suits filed against him once or twice yearly.
Written by Ben Glass on February 3rd, 2008 with comments disabled.
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We are thankful and pleased to report a verdict for one of our medical malpractice clients in Fairfax, Virginia, yesterday.
The case involved a 3 year delay in diagnosing rectal cancer. During this time the defendant ignored signs of rectal bleeding, attributing repeated findings and complaints of bleeding to 'hemorrhoids.'
As a result of the delay the plaintiff, a 45 year old male, was deprived of the opportunity to have his pre-cancerous polyp removed and, later, was deprived of the opportunity to have an early cancer removed with a relatively minor procedure. Instead, when finally diagnosed (after he changed doctors due to the ignored complaints) he underwent radiation and chemotherapy, followed by two major operations resulting in the removal of his rectum and near total loss of sexual function.
Of note:
1. The defendant was a non-board certified internist doing flexible sigmoidoscopies in his office. His testimony was that he would not pursue bleeding from the rectum unless "it was persistent and the patient kept complaining about it."
2. The insurance company for the doctor, following what is now a pattern of practice in Virginia for medical malpractice insurance companies, made no offer before or during the trial.
3. The total medical bills were approximately $72,000. The jury deliberated 4 hours. The plaintiff had been married about 6 months before his ordeal began.
4. Defense experts were LeRoy Smith, MD (oncology, hematology, internal medicine); Michael Hattwick, MD (internal medicine); Michael Schwartz, MD (gastroenterology) and Paul Kovalcik, MD (colo-rectal surgery). Hattwick and Schwartz testified that the defendant's care met the standard of care. Smith and Kovalcik testified that any delay in treatment did not harm the patient.
Written by Ben Glass on February 1st, 2008 with comments disabled.
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A Massachusetts woman, given HIV treatments for nearly nine years before discovering she was misdiagnosed, was awarded $2.5 million in damages.
The medical malpractice lawsuit claimed the doctor treating her at the University Of Massachusetts Medical Center, repeatedly failed to order proper tests to confirm the diagnosis, even though regular blood tests did not show the presence of HIV.
The lawsuit claimed the powerful combination of drugs she was taking created a string of ailments that included chronic fatigue, depression, loss of appetite and weight and inflammation of the intestine.
The lawsuit was originally filed in 2003 after she became suspicious of her diagnosis and went to another hospital for further tests.
It is one of the clearest cases of misdiagnosis that I have ever seen and it's based in part on a presumption that people who engage in certain types of conduct are more likely to have HIV and AIDS than other people without really listening to the patient," said her lawyer following the verdict.
Written by Chrissie Cole on December 13th, 2007 with comments disabled.
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