Articles Posted in Medical Malpractice

[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.

Former Carolina Panthers wide receiver Patrick Jeffers re-filed his medical malpractice and negligence lawsuit last week against the Carolina Panthers’ former team doctor. Jeffers had originally brought a medical malpractice claim in 2003, but his lawyers voluntarily dismissed the claim last year. The new medical malpractice lawsuit is virtually identical to the prior claim. Mr. Jeffers’ medical malpractice attorneys allege that Jeffers’ NFL career was “destroyed” because of the team doctor adding five unauthorized knee procedures to an Aug. 20, 2000 surgery.

The original suit included the Panthers, but a judge ruled that Jeffers’ complaints against the team first needed to go through the NFL’s grievance process because of provisions in the league’s collective bargaining agreement.

I brought a medical malpractice lawsuit against the New England Patriots, their team doctor, and a surgeon who operated on my client about six years ago. The Patriots raised this same defense but did not raise it until we had gone through two years of litigation. The judge ruled that the Patriots had waived their arbitration right by not raising the issue. The Patriots settled the case shortly after this ruling.

The Maryland Court of Appeals> overturned a lower court in a 4-3 decision in Goldberg v. Boone, a Montgomery County informed consent case.

Facts of Goldberg v. Boone

Plaintiff underwent a mastoidectomy (an operation on the mastoid bone, which is the prominent bone behind the ear, to remove a cholesteatoma (a rare condition in which skin cells proliferate and debris collects within the middle ear). During the procedure, the doctor accidentally drilled a hole into Plaintiff’s skull.

Sixteen years later, Plaintiff saw the medical malpractice defendant otolaryngologist in Rockville, Maryland. The Defendant doctor determined that Plaintiff had another cholesteatoma and performed an outpatient revisionary mastoidectomy on Plaintiff to remove the second cholesteatoma.

The day after the procedure, Mr. Boone began having trouble reading, remembering names, and recalling words. Subsequent MRI and CT scans revealed hemorrhaging and an opening in his skull.

Plaintiff’ filed a complaint against the subsequent doctor, alleging the doctor committed malpractice by negligently puncturing the Plaintiff’s brain with a surgical instrument during the revisionary mastoidectomy, causing serious and permanent brain damage. The plaintiff also alleged that the defendant’s medical doctor failed to inform him that, because of the hole in his skull, the procedure would be more complex than a standard revisionary mastoidectomy and that there was a risk of sustaining brain damage from the procedure.

The plaintiff alleged that there were surgeons more experienced available to perform the procedure in Maryland than the defendant who had performed only one revisionary mastoidectomy in the past three years.

Jury Award

After two days of deliberations, the jury awarded Plaintiff $113,000 for loss of past and future earning capacity, $355,000 for past and future medical expenses, and $475,000 for non-economic damages. The total award was $943,000.

Maryland Court of Appeals Opinion

The Maryland Court of Appeals’ opinion is long. I think two issues are of particular interest: one just for general interest; the second makes what may not be new law but flushes out the extent to which the decision on what they leave to the jury. The issues are:

(1) Where a retained expert is asked a single cross-examination question about his prior inconsistent testimony when testifying on behalf of one infamous Maryland sniper defendant, does that question warrant reversal of the denial of a mistrial motion?

(2) Whether it is a jury question on informed consent when the defendant medical doctor did not disclose his relative inexperience in performing the procedure and advising the Plaintiff that there were more experienced doctors in Maryland available to perform the procedure. Continue reading

Last week, a Baltimore County jury awarded a $2.3 million jury verdict in a stroke misdiagnosis medical malpractice suit in Towson.

The trial before Baltimore County Circuit Court Judge Dana M. Levitz took six days, and the jury deliberated for seven hours before returning a verdict, according to Plaintiff’s medical malpractice lawyer.

Facts

Yesterday’s USA Today ran a story about the often preventable tragedy of undiagnosed heart attacks. It told the story of James Pettry, who woke early one morning short of breath and sweating profusely. His wife dialed 911. The paramedics gave Mr. Pettry oxygen and aspirin and then used an electrocardiogram machine to examine the heart’s electrical function. They believed he had a heart attack and took him 3 miles to the hospital. The emergency room doctor disagreed. The doctor ran some tests, diagnosed him with anxiety, and sent Mr. Pettry home nearly five hours later.

We all know where this story is going. Mr. Pettry died the next day, joining the list of thousands every year who die every year from heart attacks left undetected. In fact, researchers from New England Medical Center in Boston reported in the New England Journal of Medicine in April 2000 that emergency room doctors mistakenly send home one in 50 heart attack victims. Other studies have documented higher rates of missed heart attack diagnosis.

The defendant says that his patient died from chronic heart disease that had no connection to the symptoms that landed him in the ER.

We have seen an increasing number of recent client calls questioning the quality of the care that a family member or friend is receiving in a nursing home. Over 1.5 million Americans are in nursing homes with 30,000 of them in Maryland. That number is rising fast as America continues to age. Baltimore County alone has 49 nursing homes and 299 assisted-living facilities.

How Much Are Baltimore Nursing Home Cases Worth?

According to Jury Verdict Research, 60 percent of personal injury trials involving nursing home abuse or neglect result in plaintiff verdicts. The median verdict is $192,977. The median verdict alleging malpractice in the treatment of a nursing home patient is $275,000.

The Maryland Court of Special Appeals today decided the informed consent medical malpractice case of Mahler v. Johns Hopkins University. The court overturned a Baltimore judge’s decision to grant a motion for judgment notwithstanding the verdict to Johns Hopkins and a defendant doctor.

Here, the Plaintiff underwent plastic surgery to improve the cosmetic appearance of his chin in 1993. The surgery was performed at Johns Hopkins Hospital by the Defendant surgeon. Because of that surgery, he suffered permanent disfigurement. Plaintiff argued that there was no informed consent because the Defendant surgeon did not disclose the material risks of the surgery to him. Plaintiff hired a Baltimore medical malpractice attorney, who sued the surgeon and Johns Hopkins Hospital in Baltimore, Maryland.

This case was tried twice. The first trial ended in a verdict for the Plaintiff and an award of $50,000 in economic damages and $500,000 in non-economic damages. Interestingly, the trial judge, Baltimore City Circuit Court Judge Allen Schwait, believed that he had erred in allowing certain evidence at trial (and because he found it excessive as well). To remedy his error, he reduced the malpractice verdict to $112,500 ($100,000 in non-economic damages and $12,500 in economic damages).