Articles Posted in Medical Malpractice

I wrote recently about what I thought was the primary fuel to the tort reform engine: people do not expect to be the victims of an accident that results from the negligence of someone else, and they do not expect to be victims of malpractice. Statistically, they are right.

The odds were in favor of a West Virginia gynecologist when he went in for abdominal surgery last month. But after his surgery, the gynecologist developed an infection and developed severe and debilitating abdominal pain, decreased consciousness, and overwhelming septic shock, requiring mechanical ventilation and additional surgeries. The gynecologist sued his doctors and the hospital for medical malpractice, attributing his injuries to negligence.

Flashback to April 7, 2008, the day before the doctor’s surgery: What would have the doctor said about caps on medical malpractice cases on that day? What would he have said about whether litigation is the answer? Obviously, in this case, he thought litigation was the only answer, filing suit an almost unheard of one month after the alleged negligence.

The Maryland Court of Special Appeals found in a 2-1 decision last month that a reduction of 30 percent in the survival chances of a woman with uterine cancer as the result of medical malpractice is not actionable as a matter of Maryland law.

Marcantonio v. Moen is a case about the delay in diagnosing cancer. Plaintiff claimed that his wife died as the result of her doctors misinterpreting a sonogram and failing to order sufficient tests to follow up on the woman’s symptoms. Because of this failure to diagnose, the Plaintiff claims that his wife’s chances of survival went down from 80% to 50%-60%. So while she was statistically likely to beat cancer even with the malpractice, she died.

The Maryland Court of Special Appeals found that the “major issue to be decided is whether proof that a health care provider was responsible for a twenty to thirty percent reduction in the decedent’s chance of survival suffices to prove that the malpractice caused the death. We shall hold that it is not,” wrote Judge James P. Salmon.

On Monday, the Supreme Judicial Court of Massachusetts overturned the dismissal of a lawsuit filed by a woman against a physician who had failed to warn his patient of the side effects of a medication. These side effects had caused the patient to lose consciousness at the wheel and kill the woman’s 10 year-old pedestrian son. The driver had recently had treatment for cancer and had been told by his doctor that he could safely resume driving while on his medication. (He had stopped driving for a period of time.) The mother sued, alleging that the doctor failed to warn his patient, the driver, of the possible side effects of drowsiness, dizziness, and altered consciousness.

The lower court had dismissed the lawsuit, claiming that the physician had a duty to his patient only, not to third parties. The Supreme Judicial Court disagreed and found that the doctor’s duty extended to anyone who could be harmed by his failure to warn his patient about the drug’s side effects. This ruling greatly widens the scope of duty of physicians when choosing treatment options for their patients and perhaps necessitates a wider discussion of possible side effects when prescribing medications. The case will now return to the lower court and be tried on the issue of the doctor’s negligence (the dismissal was on the basis of standing to bring the lawsuit in the first place).

This is a very sad case. The driver was 75 years old and suffered from lung cancer, chronic bronchitis, high blood pressure and emphysema. At the time of the crash, he had finished his cancer treatment but was still on many medications. He died of cancer shortly after the accident. A ten-year old boy lost his life when he was in the wrong place at the wrong time. It does not get much more awful than that.

A post on the Illinois Trial Practice Blog discusses a product for malpractice attorneys called>MedMal Reports. This company generates a report based on the payout reported in the National Practitioner’s Data Bank. Reporting of settlements and verdicts is mandatory, so the data is not skewed the way published verdict reports favor those medical malpractice lawyers who seek publication.

The theory is that payouts in these cases are predictable. The question is what variables should the calculus include. Interestingly, the company believes that there is not enough focus on the defendant in valuing medical malpractice cases, citing the following facts:

(1) The number of defendants affects value. The more defendants, the higher the total recovery in medical malpractice cases;

The Maryland Daily Record reports on a Carroll County electrician who was recently awarded $2.3 million in a medical malpractice case by a Baltimore City jury. After a weeklong trial, the jury found the defendant doctor negligent for piercing the plaintiff’s spinal cord during a pain relief procedure.

Steroid Injections at Issue

Doctors have used therapeutic steroid injections for years.  The standard of care requires that any injectable substance that a physician puts into a patient is safe, sterile, and prepared to accepted industry standards. The standard of care also requires the doctor to know where the needle is going in the patients, which should be far removed from the spinal cord itself.

This is one of the more depressing reports on medical malpractice that you will read. A recent study from Johns Hopkins has found that hospital staff members do not spot the vast majority of errors in pediatric chemotherapy until they have affected the child. According to the study, doctors and other health care providers failed to identify errors in dosage or administration of drugs 85 percent of the time. The figures drastically underestimate the number of errors in treating these sick children. But this does not mean that the child is not impacted by these medical mistakes. Many complications are never attributed back to chemotherapy because the child is so sick and at risk for so many complications.

Chemotherapy patients are vulnerable to these medical mistakes because there is no usual dose. The amount of chemotherapy received usually depends on body weight. Body sizes affect pediatric dosages. Chemotherapy exacerbates the problem because it is practically poison. Coming from someone who has taken chemotherapy, it is poison. For example, if you take three times the amount of OxyContin, you will sleep a little longer than you like, but no actual harm occurs. With chemo, this margin of error does not exist.

The Maryland Personal Injury Lawyer blog specifically avoids being trite or preachy. But let’s put that aside, just for today. Doctors and other health care providers have to be more careful in treating some of the sickest and our most innocent patients.

A recent study by the “Journal of General Internal Medicine” found that doctors are loath to admit medical mistakes. Virtually every doctor in the study of 538 doctors surveyed – 97 percent – agreed that they would report a theoretical medical error. But only 41 percent said they had disclosed a minor medical error they made.

Half the doctors surveyed believe they have never made even a minor medical mistake. “It seems fair to assume that all of us have made at least a minor error, if not a major error, sometime in our careers,” Dr. Lauris Kaldjian, a University of Iowa professor of internal medicine said, stating the obvious to the Kansas City Star.

This study conjures up memories of the doctor Alec Baldwin’s character Jed Hill pretended to be in the movie “Malice”. Do this many doctors really believe they have never made even a minor mistake in their entire careers?

[I updated this post in 2020 with Baltimore-area shoulder dystocia verdicts and settlements at the bottom of this post.]

A Baltimore jury yesterday found a doctor responsible for the brain injury and death in 2003 in a shoulder dystocia case and awarded the child’s parents $8.1 million. The damages are limited to just over $2.1 million under Maryland law putting a cap on awards for pain and suffering.

During the delivery of the child at Mercy Hospital, the child’s shoulders became stuck in the birth canal. This condition, known as shoulder dystocia, occurs when the child’s head can clear but the shoulders require additional medical maneuvers for the child to be delivered. In shoulder dystocia cases, one shoulder of the baby usually is trapped behind the mother’s pelvis, obstructing the baby’s breathing. It is hard to conjure up a more horrific case. This Baltimore jury that heard all the evidence in this medical malpractice case determined the damages at $8.1 million. Why do we have a law in Maryland that only awards these Plaintiffs about one-fourth of what the jury believed was appropriate?

Virginia Lawyers Weekly reports today on a $1,000,000 settlement in a medical malpractice Erb’s palsy case. The interesting thing about this case is that the injuries occurred during a cesarean section. The father of the child claimed he witnessed the obstetrician applying excessive force to the fetal head after the baby’s shoulder did not clear. Plaintiff’s expert testified the doctor failed to make the incision large enough to extract the baby’s head and then inappropriately applied traction to the baby’s still entrapped head. Fortunately, the doctor promptly diagnosed the child with a brachial plexus injury confined to the child’s neck (at C5/C6). After surgery, the child has a good prognosis for a functional arm and hand.

Shoulder dystocia cases are not rare but this is the first case I have seen or read about where the OB/GYN’s malpractice was failing to make a large enough C-section incision.  There are many claims that involve failing to provide a c-section.

These injuries occur with babies that are much larger than typical or, as is frequently the case when the mother has diagnosed or undiagnosed gestational diabetes (or is just a diabetic).   The big thing with this problem is seeing the problem before it manifests itself.