Posted on January 01, 2017 in Medical Malpractice

Earlier this month, in the case of Smith v. United States of America, the Utah Supreme Court struck down legislation that capped/limited certain damages for medical malpractice injuries resulting in death. That legislation, known as the Utah Health Care Malpractice Act, had been on the books since 1986. According to the Utah Supreme Court, the legislation violated the state’s constitution by unfairly limiting the amount of recoverable damages for injuries resulting in death. Following this ruling, Plaintiffs in Utah who bring a medical malpractice case for medical mistakes resulting in the death of a loved one may not have their awards reduced or limited by the former non-economic damages cap.

So what are non-economic damages? Non-economic damages are they type of compensation awarded to plaintiffs for the losses caused by the medical negligence of others. Non-economic damages typically are referred to as compensation for the pain, suffering and emotional distress associated with the loss of a loved one. In a wrongful death case, these injuries are claimed by the surviving beneficiaries, as defined by each state’s laws. In Maryland, wrongful death beneficiaries include the decedent’s spouse, parents (if living), and children. In addition, the decedent’s Estate is entitled to bring a claim for non-economic damages as well. The decedent’s personal representative typically brings this claim by essentially standing in the shoes of the decedent and arguing that prior to his/her death, the decedent experienced pain, suffering and emotional distress that he/she should not have experienced. Non-economic damages can be contrasted with economic damages (things like past medical bills, future medical bills, out-of-pocket medical costs, funeral expenses, past lost wages, future lost wages).

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 Posted on January 01, 2017 in Medical Malpractice

9/18/15: Community acquired or hospital acquired bacterial infections are among the most deadly conditions patients face each year. Because of the high morbidity and mortality associated with bacteremia, prompt evaluation and appropriate antibiotic treatment are of paramount importance when a physician suspects that a patient has acquired a bacterial infection. As many of you are likely aware, when a bacterial infection is suspected, the first step in treating the infection is to fully identify the type of bacteria that is present. This is accomplished by drawing a sample of the patient’s blood (called cultures) and testing it in a laboratory. Laboratory technicians often employ a method of testing known as “gram staining”. This method involves utilizing a chemical stain known as “crystal violate” to a slide containing the blood specimen. The slide is then rinsed with water and placed in iodine and then either acetone or alcohol (this is called decolorization). This process, in general, permits the laboratory technicians to categorize the observed micro-organisms in a patient’s blood (under the microscope) into two major groups, gram positive bacteria or gram negative bacteria. Gram positive bacteria retains the crystal violent stain and appears purple under the microscope while gram-negative bacteria does not retain the crystal violet and appears pink in color. Although there are, admittedly, some bacterial species that cannot be visualized by the gram stain technique, the major groups of bacteria generally fall into one of these two categories. In addition to “positive” or “negative”, gram-stained bacteria are also described according to how the bacteria are shaped; i.e., cocci (spherical), bacilli (rod-shaped), how they are arranged; i.e., in chains or in clusters, and their size.

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 Posted on January 01, 2017 in Medical Malpractice

Surgical scissors. Surgical clamps. Gauze pads. A sponge. A needle. Left behind in your body after surgery. Without a doubt, one of the more frequent, and often times puzzling, types of medical malpractice cases occurs when a surgeon or his/her surgical team finishes a procedure and fails to remove all of the surgical instruments or equipment used on the patient during surgery. The medical watchdog group known as the Joint Commission recently was quoted as stating that the “leaving of a foreign object after surgery is a well-known problem, but one that can be prevented.” The Joint Commission, like most malpractice attorneys, recognize that this all-too common problem is one that leave severe damage to patients or even cause death. Between 2006 and 2013, the Joint Commission was made aware of over 770 reports of retained foreign objects in patients that resulted in 16 deaths. The Joint Commission believes, however, that this 770 cases only represented a fraction of the true number of cases involving retained foreign objects, with a more realistic number being closer to 1,500-2,000 incidents per YEAR. In 95% of these cases, the patients were required to stay additional days in the hospital and undergo additional surgical procedures to remove these foreign objects. The retention of these foreign objects can obviously cause patients severe pain, result in significant infections and organ damage.

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 Posted on January 01, 2017 in Medical Malpractice

10.2.15 Millions of Americans are afflicted with heart rhythm disorders requiring the insertion of pacemakers or implanted defibrillators. These devices utilize leads, a wire that runs from a pacemaker or implantable defibrillator into the heart’s chambers. The lead wire attaches to the heart muscle and “assists” the heart maintain rhythm through the emission of electrical signals from the device as the patient requires it. Like anything device that is implanted in the human body, over time, scar tissue forms around the leads making their removal, at the appropriate time, more difficult. Typically, during a removal procedure, an electrophysiologist (a doctor who specializes in heart rhythm disorder) uses a laser to burn through the scar tissue encapsulating the lead wires. However, in order to accomplish this, the laser must go through the major vein leading to the heart and into the chamber of the heart where the lead is attached. No matter what the doctor’s level of experience and skill is in performing this procedure, the tearing of the vein (or tearing of the heart) is an unavoidable risk that results in internal bleeding. If the bleeding is not effectively repaired immediately, that blood loss can be fatal.

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 Posted on January 01, 2017 in Medical Malpractice

One of the more common types of cases that our office handles is the circumstance in which a surgeon injures a patient during the course of a surgical procedure, perhaps even not negligently, but fails to either recognize the injury or fails to timely repair the injury prior to the patient suffering additional injuries. In most surgeries, physicians are operating in areas in which anatomical structures are often times separated by centimeters or millimeters. In other instances, critical structures such as veins and arteries can be fused together with ducts and organs, requiring the surgeon to painstakingly separate these structures in order to perform the procedure or remove an organ. In some of these instances, it is recognized that an accepted risk of the procedure is the unintentional injury to an adjacent structure, whether it be a laceration, puncture or even transection. When this occurs, the surgeon is generally not regarded as having negligently injured these structures, but rather, it is what the surgeon does next that determines whether his actions constitute negligence or not. When our office reviews these kinds of cases, we always generate a timeline of events, down to the minute in order to evaluate the surgeon’s actions.

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 Posted on January 01, 2017 in Medical Malpractice

The Patient Protection and Affordable Care Act (ACA) was passed in 2010. As many of you know, although the ACA did not establish universal health insurance coverage, it did contain a requirement, known as the individual mandate, that all non-exempt U.S. residents maintain medical insurance. Seizing upon this mandate, defense attorneys across the United States have attempted to use the ACA as the latest tort reform vehicle by filing motions in limine to limit what plaintiffs can present to juries on future medical expenses — essentially arguing to Courts that the requirement of continuing medical insurance coverage will provide reimbursement for the claimed future medical expenses, thereby nullifying plaintiffs’ ability to claim these expenses. Put another way, the defendants essentially argue that the plaintiff should only be permitted claim their out-of-pocket costs for medical care, a sum that has a maximum cap under the ACA, and the current cost of purchasing their medical insurance.

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 Posted on January 01, 2017 in Medical Malpractice

In 2014, an Alabama jury awarded the widow of a man who died from a heart attack nearly $4,000,000 in damages after emergency room physicians negligently failed to diagnose him as being in the midst of a heart attack, and instead, sent him home with a diagnosis of a common stomach bug.The case, filed against the emergency room physician and hospital, centered on the fact that the decedent developed classic signs and symptoms of heart trouble, including chest pain, sweating and general discomfort on the morning of January 11th.Over the course of the next day, he continued to feel ill.The following day he presented to the hospital with the same signs and symptoms.While in the hospital’s emergency room, the emergency medicine doctor who evaluated him failed to question and/or rule out the possibility that the decedent was experiencing a heart attack, and in fact, dismissed him after just 4-5 hours in the ER.Perhaps more significantly, the emergency room physician failed to order the requisite blood tests that are commonly done to rule out a heart attack and to check to see if there has been any cardiac damage or ischemia.The decedent subsequently returned to his home where he died later that same day.

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 Posted on January 01, 2017 in Medical Malpractice

Some of the most unsettling cases that we as medical malpractice attorneys handle are cases in which health care providers have failed to timely diagnose a patient with a treatable form of cancer until it is too late. Whether it is due to a radiologist misreading a CT scan or and MRI and failing to see a cancerous tumor or a doctor failing to follow up upon recommendations for further testing to rule out the presence of cancer, each instance of negligence is heartbreaking because the negligence has foreclosed the likelihood that the patient will ultimately survive the cancer.

It is common knowledge that in most instances, the earlier the cancer is diagnosed, the greater the chance of survival is. A recent Chicago case is illustrative of this point. In that matter, a 46 year old women presented to her primary care doctor complaining of a painful lump in her left breast. A CT scan was ordered and performed and revealed the presence of a 1.9 cm mass in the patient’s left lung. The radiologist who interpreted the report also indicated that the lump could be malignant. The surgeon subsequently recommended to the patient that she undergo a breast biopsy to rule out breast cancer, and if that study was negative, then a lung biopsy to rule out lung cancer. The breast biopsy turned out to be negative, but the physician never performed the lung biopsy, and instead, dismissed the woman from his care. Over the course of the next year, the woman expressed frequent complaints of a cough and chest pain to her PCP. No follow up studies were done for an entire year. Finally, her PCP ordered a lung biopsy. By that point, the woman had developed Stage IV (end stage) lung cancer. Despite undergoing chemotherapy and radiation, she was given a 5% chance of surviving just 5 years.

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 Posted on January 01, 2017 in Medical Malpractice

The over-prescription of powerful painkillers is quickly becoming one of the fastest-growing areas of physician liability as unscrupulous physicians elevate patient retention, and therefore, profits, over the well-being of patients with chronic pain or long-term injuries. While there is significant concern over the thousands of patients who become addicted to these medications each year, the potential liability for these physicians can often extend well beyond addiction, as many patients also suffer permanent injuries or even death as the result of over-prescription. Sadly, it is not altogether for some physicians to prescribe patients with shockingly high quantities of pain medications in combination with one, two, three or even four other types of other pain medications, often at the maximum dosage. For example, in some instances, these doctors might prescribe a patient with Oxycontin along with prescriptions for Oxycodone, Flexeril (a muscle relaxer), and Neurontin. By prescribing hundreds of pills at a time and directing patients to take the maximum dosage for these pills, these doctors time the consumption of pills precisely to the date of the patient’s next visit and then repeat the process the next month. As a result, these physicians can charge tens of thousands of dollars to their patients and the patients often become addicted in a matter of months.

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 Posted on January 01, 2017 in Medical Malpractice

Like most other businesses, the practice of medicine is moving toward the digital and virtual worlds. Health care providers now have the ability to see and treat patients from miles away and do such things as read radiology studies (x-rays, CT scans, MRIs, CTAs) remotely, while sitting at home hundreds of miles away. Surgeons can control surgical robots in hospitals across the country and thus perform surgery on patients that they cannot physically touch. Many people have questioned whether a traditional physician-patient relationship exists during such encounters and whether a patient’s rights are impacted by these changes. For example, many have asked whether physicians still have the same type of duty to their patients as they do when treating the patient in person. Others have asked which state’s laws would govern an allegation of medical malpractice: the laws of the state where the patient was at the time the care was rendered or the laws of the state where the physician was located at the time he provided the care/consultation? In many instances, this distinction can prove to be critical for the patient.

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