Posted on August 31, 2015 in Medical Malpractice

Not all medical malpractice lawsuits are decided by a jury. In some circumstances – such as those in which the Defendant doctor is an employee of the federal government – a judge decides whether the physician breached the standard of care and, if so, how much money to award. This is called a "bench trial." In a recent bench trial in the United States District Court for the District of Arizona, a Federal Judge awarded the victim of a medical mistake $3.2 million.

In the Arizona case it was alleged that the Plaintiff – a board certified orthopedic surgeon with subspecialty training in spine surgery – consulted his primary care physician for a shoulder injury he sustained while lifting weights. That physician referred him for an MRI of the shoulder. It was determined that the Plaintiff would require rotator cuff surgery and so he was referred to the Defendant-doctor, an employee of the Department of Veteran’s Affairs, for the procedure. The MRI also revealed what was interpreted by the Radiologist to be a soft tissue mass in the shoulder. The Defendant, however, interpreted the MRI to show type of mass that was fluid-based "containing joint debris." The Defendant told the Plaintiff that he would remove the fluid during the rotator cuff surgery. He did not, however, discuss any other type of mass with the Plaintiff and did not seek consent to remove any other type of mass.

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 Posted on August 28, 2015 in Medical Malpractice

No matter the jurisdiction, most jurors who are seated to hear a medical malpractice case/trial carry with them some inherent biases. In fact, it has been our experience that many jurors and inclined to give doctors a "pass" in certain circumstances because the doctor was trying to help the patient, and certainly not trying to deliberately hurt the patient. Moreover, many jurors have family and friends who are in the health care industry and thus they are naturally biased in favor of those individuals, no doubt after hearing the "horror" stories of allegedly unfounded medical malpractice claims. As a result, many jurors will actually scrutinize the Plaintiff’s case for any reason that they can find to blame the Plaintiff for the injury or adverse result. These inherent biases can often be difficult to overcome in a week or two-week trial. One way to combat these biases is to use the defendant doctor or defendant hospital’s own policies and guidelines against them.

The majority of hospitals and/or physicians in today’s health care industry have developed clinical practice guidelines for how to treat certain conditions. These guidelines give recommendations about examinations to perform when confronted with certain signs and symptoms, certain tests to perform, certain medications a patient should receive and the timeframe within which all of these things should occur so as to provide to the best care to a patient and/or rule out potentially life-threatening conditions. For example, when a patient comes into a hospital complaining of a sudden onset of chest pain, most hospitals follow a cardiovascular guideline, taking steps to rule out the potentially life-threatening conditions like a heart attack, pulmonary embolism (blood clot to lung) and an aortic dissection. Such steps include performing an EKG, ordering a CT scan of the Chest, drawing blood to perform serial laboratory studies to look at certain markers. In short, these guidelines are adopted by hospitals and health care providers to try and prevent common errors. The guidelines are premised upon the belief that health care providers are human and injuries are inevitable without checklists and systems in place to prevent the same.

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 Posted on August 24, 2015 in Medical Malpractice

After a two-week trial this month, a Pennsylvania jury awarded more than $12 million to a 53 year-old man who became paralyzed after emergency room physicians delayed in recognizing and treating his spinal epidural abscess. According to the National Institute of Health, a spinal epidural abscess is defined as a rare disorder caused by infection in the area between the bones of the spine and the membranes covering the spinal cord. Although not always able to be determined, the source is often bacteria that spread from other infections in the body, such as a urinary tract infection.

In the Pennsylvania case, the patient presented to Delaware County Memorial Hospital in June of 2011 complaining of neck pain and tingling in his left arm. His symptoms worsened overnight; he developed a fever, was having difficulty walking and was unable to urinate. These are classic symptoms of an infectious process in the spine. An infectious disease specialist was appropriately consulted the following day and a cervical epidural abscess in the neck was suspected. The infectious disease specialist ordered a stat (immediate) MRI but, unfortunately, the hospital Radiologist incorrectly interpreted the results as showing no signs of abscess or spinal cord compression. Accordingly, transfer to a facility with the proper capabilities to care for this patient was delayed an additional day and, in the meantime, his condition continued to deteriorate. By the time the accuracy of the radiologist’s reading of the stat MRI was questioned, the damage done to the patient’s spinal cord had become irreversible.

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 Posted on August 21, 2015 in Medical Malpractice

In the context of any kind of medical malpractice lawsuit, there are generally two types of damages that can be claimed by the Plaintiff and/or ultimately awarded by a judge or jury: Non-Economic Damages and Economic Damages. Many times, our clients struggle with understanding the differences between these two types of damages and it is important to understand the distinction.

Economic damages are financial costs of an injured party’s trauma, including things such as past medical bills, future medical bills, future care costs and past and future wage/earnings loss. Future care costs, in particular, can often times range in the millions of dollars depending on the age of the injured party and the severity of the injuries suffered. For example, if a newborn infant has suffered a brain injury as the result of the negligence of an obstetrician, a medical expert known as a life care planner is often hired to project what types of care, equipment and services that child will require for the rest of their life, at each stage of their life. These types of damages include everything from the patient’s medications, motorized wheelchairs, physical/occupational/speech therapies, nursing care, in-home attendant care, etc. Other types of economic damages include the cost of modifying an injured party’s home to make it handicapped accessible for them or the provision of a modified van or car to allow them to operate it safely within the scope of their physical limitations. With respect to past or future loss of earnings/wages, once again, these damages can add up into the millions depending on the age of the plaintiff. In many instances, our office will retain an economist to examine what the injured party was earning prior to his/her injury and project those earnings forward to that individual’s reasonable work life expectancy (e.g., age 62, 65, 67 or 70). For individuals who are injured prior to the time that they enter the workforce, our economists are able to make projections as to their anticipated income based upon the education levels and work histories of their parents or guardians. There is no cap on economic damages.

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 Posted on August 17, 2015 in Complex Civil Litigation

Governments and businesses know – or at least they should – that there’s a difference between being vicariously liable and being directly negligent. Jurors may not, however, so how carefully should the distinction be explained come time for crafting jury questions? Perhaps not much – according to a new opinion of the Court of Special Appeals, provided the jury is otherwise instructed properly by the trial court and counsel, blurring the line between vicarious liability and negligence in a jury question can be excusable.

In Jordan v. Torain, Ct. Spec. App., Sept. Term 2014, No. 1320 (July 23, 2015), David Jordan drove his car into the back of a trash truck, operated by City employee Robert Torain, as it turned into a nearby alley; Jordan claimed (and Torain denied) that the truck cut across his lane. Jordan sued on claims that Torain was negligent, the City was vicariously liable for that negligence, and the City had negligently entrusted Torain with the vehicle. Torain and a worker on the back of the truck sued as well, alleging negligence against Jordan. The two cases were later consolidated.

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 Posted on August 14, 2015 in Medical Malpractice

Healthcare facilities have long understood that patients whose conditions include mobility problems are at an increased risk of falling and injuring themselves. In recognition of this fact, such facilities – including nursing homes – often institute internal policies and procedures governing the process of identifying those patients who are at high risk for falls as well as mechanisms for preventing those patients from falling.

The risk of falling for those patients with mobility impairments is exponentially higher when going to and from the restroom, when showering, and when changing clothes. During these times, a nurse or other healthcare provider should remain in close enough proximity to the patient to catch them if he or she appears unsteady or is about to fall. In the field of nursing, the term used to describe this close proximity is a "contact guard" and requires that the nurse maintain "contact" with a patient’s body so as to both support and assist them while ambulating. In the event that a patient should begin to fall, a nursing aid who is maintaining proper contact with a patient should thus be in a position to "catch" the patient and guide them to a walker, chair or to the floor in a manner that would avoid a traumatic fall/injury.
Unfortunately, physicians, nurses, and other staff at these facilities often violate their own policies and procedures by failing to provide contact guard assistance to patients at increased risk of falling. When a patient who is already at a heightened risk for falling does in fact fall, it can cause catastrophic injuries and aggravate the already-compromised condition of the patient. Falls also can cause significant setbacks in many patients’ road to recovery. Of course, in elderly patients, a fall can result in a shortened road to ultimate demise.

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 Posted on August 14, 2015 in Medical Malpractice

Radiology is an area of medical specialty that involves the evaluation and interpretation of images and films generated by tests such as X-Rays, CT Scans, MRIs, Mammograms, Sonograms and Ultrasounds. Radiologists, the individuals who are trained to read and interpret these images, are often the first line of defense for a hospital or emergency room physicians as the radiologist can often see what the doctors treating the patient cannot: fractured vertebrae, broken bones, internal bleeding, aneurysms, pulmonary emboli and many other life threatening conditions. When a radiologist fails to properly read and interpret these kinds of studies, your health is at risk. For example, a radiologist may miss a fractured vertebrae in a patient’s neck or back on a CT scan or an MRI, a fracture that could, if the vertebrae becomes displaced toward the spinal cord, result in paralysis. Under different circumstances, a radiologist may miss an aneurysm or early stages of an aortic dissection (a tear in your main blood vessel coming out of your heart) that could rupture and cause you to die. When these kinds of errors happen, they may amount to medical malpractice. Although in most cases the radiologist does not communicate with the patient directly, the radiologist’s failure to properly read or interpret a study affects how emergency room physicians and other doctors care and treat their patients. Accordingly, if a radiologist misreads an image or film and mistakenly rules out the condition that you have, your doctors may fail to treat your for that condition.

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 Posted on August 03, 2015 in Medical Malpractice

An aortic dissection is a serious condition in which the wall of the major artery carrying blood out of the heart – the aorta – tears. An aortic dissection can lead to aortic rupture or decreased blood flow to vital organs. Generally, symptoms of an aortic dissection come on suddenly and often include sharp, stabbing, tearing or ripping chest pain which moves to the shoulder, neck, arm, jaw and/or abdomen. The decreased blood flow to the remainder of the body caused by an aortic dissection can result in fainting, dizziness, sweating, nausea, pale skin, shortness of breath and an accelerated or slowed pulse.

When a patient presents with any combination of the above-mentioned symptoms, a cardiac event – including an aortic dissection – must be included in the differential diagnosis until definitively ruled out. A CT scan can easily be used to diagnose or rule out an aortic dissection but, critically, the CT scan must be performed with dye / contrast in order for the aortic dissection to be seen. Performing a CT scan without dye / contrast will prevent the physician from seeing the dissection, causing the physician to falsely believe that there is none.

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 Posted on July 24, 2015 in Medical Malpractice

A pregnancy can be determined to be high risk for any number of reasons but one common factor that makes a pregnancy “high risk” is advanced maternal age. Women who become pregnant when they are older are more likely to carry fetuses with chromosomal abnormalities such as Down syndrome. Because of these risks of complication, some mothers-to-be elect to undergo genetic testing known as Chorionic Villus Sampling (“CVS”). CVS is a prenatal test in which a sample of chorionic villi is removed from the placenta for testing. When CVS reveals the presence of a condition that is likely to severely diminish the quality of life of the child, it is generally well within the pregnant woman’s rights to terminate the pregnancy. If that testing is not interpreted accurately – i.e., it is reported as normal – an unwanted, full term pregnancy can result and the parents of the child could have a claim for malpractice under Maryland law.

In addition to Down syndrome, another genetic or congenital abnormality that can occur due to advanced maternal age pregnancy is Smith Magenis Syndrome (“SMS”). SMS is a severe genetic disorder that can cause significant intellectual disability, delayed and impaired speech and language skills, severe sleep disturbances and severe behavioral problems. SMS occurs as the result of a defect on the 17th chromosome. Children who are born with SMS are likely to require a life-time of 24-hour supervision and are unlikely to ever live independently or be gainfully employed.

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 Posted on July 24, 2015 in Medical Malpractice

Last month, a Fairfax County, Virginia jury returned a verdict of $500,000 against a Bethesda, Maryland based anesthesiologist for her conduct during a colonoscopy procedure she oversaw. As reported by multiple news outlets, as the Plaintiff, a Virginia man, prepared for his colonoscopy in a medical suite, he pressed the record button on his smartphone, in an effort to capture the post-operative instructions that anticipated his doctor would give him. His smartphone, which was in his pants pocket and placed under the operating table during the procedure, ended up recording the entire procedure. When he returned to his home, the man pressed play and was shocked at what his phone had recorded. In short, what he heard was the entire operating room team, including his anesthesiologist and gastroenterologist, openly and viciously mocking him while he under anesthesia. For example, at the outset of the procedure, a medical assistant noted that the man had a rash. In response, the anesthesiologist warned her not to touch it, tell the young woman that she "might get some syphilis on your arm or something" then adding, "it’s probably tuberculosis in the penis, so you’ll be all right." The anesthesiologist was also recorded telling the sedated man that "after five minutes of talking to you in the pre-op…I wanted to punch you in the face and man you up a bit." In addition to the shocking commentary, the health care providers also instructed an assistant to lie to the man after the procedure and how the doctors would endeavor to avoid him after the colonoscopy. Lastly, the doctors also discussed placing a false diagnosis on his chart – stating that the man had hemorrhoids, when in fact he did not.

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