BREAKING NEWS-Gerry Oginski gets $1.5 million verdict in Westchester New York Medical Malpractice Attorney Gerry Oginski obtained a $1.55 million dollar verdict today in a case involving a failure to properly perform foot surgery. The case took two weeks to try and the jury was given the case today, Friday, July 23, 2010. A unanimous verdict of six jurors resulted in the following awards:
Gerry's Video Made The New York Times Blog! Think video still doesn't work? One of my videos was picked up by NY Times blog writer J. David Goodman about black ice. Take a look.
Nyack doctor fined $150,000 by state "State investigators said Vittorio ordered unwarranted videoflouroscopic imaging by failing to establish any legitimate medical need for such a test, according to records. The state Board for Professional Medical Conduct also found that Vittorio "failed to adequately obtain complete histories and perform appropriate physical examination" when treating patients between 2004 and 2005."
The New York Times reported today (Obama Open to Reining in Medical Suits, June 15, 2009) that you were considering reining in medical malpractice lawsuits. Although you have expressed your opinion that you would not consider placing a cap on jury awards, I’d like you to read this letter before you give further thought to this potentially disastrous policy change.
Bicycle Accidents In New York City-An experienced NY Negligence Attorney Explains Learn from an experienced bicycle rider and experienced New York trial lawyer about the perils of getting doored and what your legal rights are. Find out what an attorney looks for when you've been injured as a result of someone's carelessness while bike riding.
Twitter, Facebook & Internet Lead to Mistrials Jurors disregard judge's instructions and do their own internet research leading to mistrial. Learn how jurors who twittered updates caused a mistrial in another case.
California Attorney Achieves $18.4 Million Negligent Supervision Settlement Attorney for the plaintiff, Stanley Jacobs of Jacobs, Jacobs & Eisfelder discusses the case of Roque Renteria, 14, a ninth-grade student who became an instant quadriplegic after being dropped to the ground - head first - during horseplay with a senior at the high school track team's afternoon practice.
The Doctor Will See You Now — Online Not feeling well? Skip the visit to your doctor's office. Instead, log on to your computer to have a face-to-face visit with your primary care doctor.
Doctor liable for lawyer’s fatal cancer A Montgomery County Circuit Court jury has returned a $5.8 million medical-malpractice verdict in the death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain.
Jury awards Cornwall crash victim's family $29.4M Jury awards Cornwall crash victim's family $29.4M
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By Oliver Mackson
Times Herald-Record
August 23, 2008
GOSHEN — A state Supreme Court jury awarded $29.4 million in damages Friday to the family of a New Jersey man who died in the aftermath of a 2002 car crash on the state Thruway in Cornwall.
It appears to be the largest civil damage verdict in Orange County's history, said Steven I. Milligram, the president of the Orange County Bar Association. "I've been practicing here since 1986, and I have not heard of anything that high," said Milligram, who's a partner in a Newburgh law firm.
The crash occurred on Jan. 25, 2002, when a freight container on a northbound flatbed trailer smashed into the bottom of the Pleasant Hill Road overpass. Denise Malkin of Franklin Lakes, N.J., swerved her SUV to avoid the wreckage of the exploding container and was broadsided by another tractor-trailer.
The impact left Malkin's husband, Peter, suffering from serious internal injuries and brain damage that eventually claimed his life.
His daughter, who was 15 at the time, also suffered injuries. The Malkins were on their way to Vermont to go skiing.
During the two-week trial before Justice Joseph Alessandro, the jury heard Malkin described as "a spectacular person and spectacular worker," said Robert Kelner, the lawyer who represented Malkin's family. Malkin worked for CSC Corp., a large business technology company.
The damages are against Sebastian Tremblay of Montreal, who was at the wheel of the tractor-trailer and got a ticket for driving an over-height vehicle, as well as two Canadian companies: Transport Expressway Inc., which owned the truck, and Finloc, a leasing company with insurance on the trailer.
"This case was one of the worst human catastrophes that I have seen in my practice. It came out before the jury as to the horrible impact of this accident on all of the members of Peter Malkin's family, and I really do feel that justice was done," Kelner said after the verdict.
Lawyers for the defendants indicated that they'll ask Alessandro to reduce the size of the award.
Stuff of nightmares: Criminal prosecution for medical malpractice Read a fascinating article, written by a Board Certified Ob/Gyn who describes two cases where doctors were criminally prosecuted for medical malpractice. It is a recommended read for injured victims to learn why their doctor will, most likely, not be prosecuted for acts of medical negligence.
Google the words "New York Medical Malpractice Lawyer" to see which attorney website comes up #1 on the 1st Page of Google Try the following- type into google "Brooklyn Medical Malpractice Lawyer" to see who comes up in the #1 organic search result. Go ahead, try it. Next try the search term "Medical Malpractice Lawyer." If you notice, every result on the page, except one, is a lawyer directory. Gerry's site is the only lawyer site (out of 4.6 Million sites) on the first page for this search term. Incredible. Next, type in "New York Medical Malpractice Lawyer," to see where Gerry's site turns up.
New York’s medical malpractice insurance troubles are self-inflicted: Report shows New York Public Interest Research Group and the Center for Medical Consumers, will release a report showing that New York’s medical malpractice insurance troubles are self-inflicted - caused by the state’s manipulation of insurance rates and its misuse of a rainy day fund.
NY Anesthesiologist Uses Syringes Twice! Hepatitis Found Learn how an anesthesiologist in New York used syringes multiple times without realizing that he was breaching infection control procedures, and without realizing that he gave two patients hepatitis because of this improper technique. Gerry Oginski, an experienced New York medical malpractice & accident lawyer explains.
Medicare refuses to pay for medical errors Medicare recently announced a change in policy where they will now refuse to pay for medical errors which "never" should have happened.
In today's breaking news, Attorney Gerry Oginski obtained a $1.55 million dollar verdict in a case involving a failure to properly perform foot surgery. The case took two weeks to try and the jury was given the case today, Friday, July 23, 2010. A unanimous verdict of six jurors resulted in the following awards:
Past pain and suffering: $375,000 Future pain and suffering: $1,125,000 Past loss of services on behalf of the husband: $50,000
Total: $1,550,000
The jury in Westchester County Supreme Court here in New York found that the podiatrist departed from good and accepted podiatric and surgical care, and that the departure was a substantial factor in causing my client injury.
The other day when I opened up my e-mail, and I saw a Google alert with the title "When Black Ice Strikes, Who is to Blame?" I was confused when I noticed my name was attached to the title and the website URL was from the New York Times online blog. I knew I hadn't created an article or video with that title, so I clicked on the link to the New York Times and was pleasantly surprised.
The writer, J. David Goodman was writing about how black ice affects people in New York City. In the article he mentioned one of the videos I made involving a woman I represented who slipped and fell in a parking lot on black ice. The key question I raised in the video was who is to blame if you slip and fall and suffer injuries on ice or snow? The answer is never clear cut.
There is always the issue of who was responsible for maintaining and cleaning that part of the property. Sometimes it's a property owner, sometimes it's a municipality, and oftentimes it is a snow plow company that is hired to keep the sidewalk or property clear of snow and ice.
I have written extensively about slip and fall cases on snow and ice and those articles appear here on my website and in video tips on my New York personal injury video blog. If you have legal questions about a slip and fall on snow or ice, I encourage you to pick up the phone and call me or e-mail me since I can answer your legal questions. You can reach me at 516-487-8207 or by e-mail at lawmed10@yahoo.com. I welcome your call.
The Lower Hudson Valley news reporter Jane Lerner wrote yesterday that a Nyack radiologist was fined a whopping $150,000 for performing medical tests on patients who didn't need them. Imagine that.
The article reports that Dr. Joseph Anthony Vittorio did not contest the negligence charges against him by State officials.
"State investigators said Vittorio ordered unwarranted videoflouroscopic imaging by failing to establish any legitimate medical need for such a test, according to records. The state Board for Professional Medical Conduct also found that Vittorio "failed to adequately obtain complete histories and perform appropriate physical examination" when treating patients between 2004 and 2005."
CHARLESTON, W.Va. -- Earlier this month, thanks in large part to the efforts ofCharleston attorney Jim Lees, a Tennessee jury awarded a young couple almost $24 million in a medical malpractice case.
The verdict, which found a Memphis OB-GYN negligent for failing to order follow-up tests after a patient found a lump in her breast, is believed to be the highest medical malpractice award in that state's history.
But Lees thinks the jurors were thinking about more than money when they settled on $11.85 million for Courtney Hill and $11.75 million for her husband, Robert.
An Open Letter to President Obama From Gerry Oginski, Esq. A New York Medical Malpractice Trial Lawyer June 15, 2009
Dear Mr. President,
The New York Times reported today (Obama Open to Reining in Medical Suits, June 15, 2009) that you were considering reining in medical malpractice lawsuits. Although you have expressed your opinion that you would not consider placing a cap on jury awards, I’d like you to read this letter before you give further thought to this potentially disastrous policy change.
A few years ago I had the privilege of representing a young man, aged 34, who worked as a mortgage broker. One day here in New York he suffered chest pain and went to a local hospital for evaluation. The physicians admitted him to the hospital for a few days to do a cardiac workup. Blood was drawn, a stress test was performed, and a physical examination was done. The patient was given a clean bill of health and told to follow up with a cardiologist after being discharged. Over the next three months this young and energetic young man continued to experience significant chest pain. On each visit to the cardiologist, the doctor performed a physical examination and shrugged off the patient’s complaints of pain as being “stress related.” Shortly after the third visit to the cardiologist, this young man experienced severe crushing pain which radiated down his arm.
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Have you ever been thrown off your bike after a car side-swiped you? Did you wind up in the emergency room? Broken bones? Need surgery? Did you have head trauma? Was your bike totally destroyed? Do you know someone who went over their handlebars and walked away without breaking a bone in their body?
Evaluating liability- Who’s responsible?
Where were you riding (on the street, on the sidewalk, with traffic, against traffic)?
What was the weather like?
What time of day did your accident happen?
What safety devices did you have on (helmet, reflective clothing, blinking butt lights, headlights)?
Describe the road or intersection where the accident happened (one way, two-way, how many lanes of travel in each direction, was there parking on both sides, was it residential or a commercial area)?
Was there anything blocking your view?
Were there any double-parked cars/buses/ trucks?
How fast were you going at the time of the impact?
How fast was the other driver going at the time of impact?
How did the accident happen?
“What happens if I was riding against traffic? Does that affect my liability?” Yes it does. As a bicycle rider you are still obligated to follow the ‘rules of the road’ and to ride responsibly. You cannot disregard red lights with impunity. You cannot blow through a stop sign knowing there’s no oncoming cars or pedestrians. You are required to follow the same traffic signs as cars. If you are hit while riding against traffic, you will be partially responsible for causing your accident.
Remember, since New York is a “No-Fault” state, that means that the drivers’ insurance company will still be obligated to pay for your medical bills. If you own a car and have car insurance, the two insurance companies will hook up and determine, behind the scenes, who is actually responsible for your accident. Depending on the analysis, one insurance company will reimburse the other for the medical expenses they had to pay out on your behalf.
Evaluating damages- What Injuries Did You Suffer as a Result of This Accident?
Gerry's videos on YouTube have been watched over 76,000 times! Amazingly, this doesn't include all the other video sharing sites where my videos are posted- only YouTube.
Practically every caller who comes to me from my website thanks me for creating educational and informative videos to help explain how lawsuits in New York work. I'm glad I can provide useful information that allows a prospective client to obtain useful information before they ever pick up the phone to call.
Well it finally happened. A lengthy federal criminal trial in Florida resulted in a mistrial after a juror admitted to doing Internet research, despite the judge's instructions not to.
Eight weeks worth of trial were wasted because of one juror's failure to follow the court's instructions. There's a shocker.
John Schwartz, a writer for the New York Times, also noted that an Arkansas court is being asked to overturn a $12.6 million judgment claiming that a juror used twitter to send updates during the civil trial.
Also, in Pennsylvania, defense lawyers in a federal corruption trial requested a mistrial because a juror posted updates in the case both on Twitter and Facebook.
In today's day and age of social networking sites and the ability of people to communicate via iPhone, Blackberry, and text messages, it has never been easier for jurors to do their own independent research about the issues involved in a trial. Not only that, but today's communication devices allow anyone to immediately do a Google search on anyone involved in the trial including the lawyers and the judge.
Pretrial instructions by the trial judge in New York routinely advise potential jurors that they are not do any independent research outside of the court. The reason is simple: we don't want jurors basing their decisions on any outside influences that have not been subject to the scrutiny of the court and the attorneys.
When jurors obtain information outside of the courtroom, the attorneys and the judge no longer have an ability to know what information the juror has obtained and how it could possibly influence them when reaching a decision.
In civil cases in New York, where jurors are never sequestered, no one really ever knows whether jurors talk to friends or family members or do their own research. It's only when someone has observed them investigating on their own can this breach of a juror's duty come to light.
Just last week I posted an informative and educational video about this exact topic. The title? "Twitter and Facebook jury instructions in New York." in the video I posed the question: "Should judges be required to give jurors warnings that they are not to use twitter, Facebook, my space and other social networking sites to blog about the case?" Watch the video to find out the answer.
Interestingly, in the cases discussed in the New York Times article, jurors were warned not to do online research. Despite these explicit warnings jurors disregarded them to investigate on their own.
Ah, what's a Twitterer supposed to do while serving jury duty?
Attorney for the plaintiff, Stanley Jacobs of Jacobs, Jacobs & Eisfelder discusses the case of Roque Renteria, 14, a ninth-grade student who became an instant quadriplegic after being dropped to the ground - head first - during horseplay with a senior at the high school track team's afternoon practice. Jacobs claims cursory supervision on the part of a substitute coach who all but ignored what was happening on the field and also speaks to what role a cellphone's video and the boys themselves may have contributed to the case.
If Roy Schoenberg, the start-up’s co-founder and chief executive, has his way, patients will no longer have to wait a month to see a doctor for an urgent sore throat, wait all day for a doctor to return their call or leave work midday and drive a long distance for a routine appointment. Instead, patients will log on to their computers and find themselves face-to-face with physicians over Webcam...
A.I.G. has agreed to provide malpractice insurance to doctors providing online care, and the cost is low enough that most of the health plans are paying for it instead of charging the doctors, Dr. Schoenberg said.
To read the full article go to: http://bits.blogs.nytimes.com/2008/11/19/the-doctor-will-see-you-now-online/
A Montgomery County Circuit Court jury has returned a $5.8 million medical-malpractice verdict in the death of a 47-year-old lawyer whose untreated mole turned into a skin cancer that spread to his brain.
The award will be reduced to $3.6 million due to Maryland’s cap on non-economic damages in medical-malpractice cases, said plaintiffs’ attorney Patrick Malone. He represents the family and estate of Richard H. Semsker, who died in 2007 and is survived by his wife and two children.
To read the full article go to: http://www.mddailyrecord.com/article.cfm?id=9091&type=UTTM
Here's an article on point about lawyers who solicit accident victims after having obtained their personal information from police accident reports. I've been writing about this for years. If you get a letter from a law firm following an accident, does that letter make you want to rush to the phone to call these unknown, faceless lawyers? Let me ask you a better question: If a man knocks at your door, out of the blue, and tells you he was driving around your neighborhood and noticed that your house needs painting, are you going to let him in to paint your house? You know nothing about this person; you didn't call him; you don't know anything about his credentials or his references. Do you let him in? The same exact question for some lawyer who sends you a letter telling you that he (or she) can answer all of your legal questions and solve all of your legal dilemmas, without knowing a single thing about you.
You are best off to send him on his way. If you really need an attorney, you should be the one doing the research and learning how to select an attorney for your possible case. Some lawyers use the argument that injured victims may not know their rights. That may be true. But ask yourselves another question: Why is a law firm sending me letters and promising to send an investigator to my home the same day I call? Are they that desperate to sign me up? Is my case that valuable to them, without them even knowing what injuries I suffered in my car accident? Here's the article. You decide.
Ambulance chasing? Lawyers zero in on metro-east clients
BY BRIAN BRUEGGEMANN
News-Democrat
Injured in a car accident? Need a lawyer?
Don't worry, you no longer have to watch daytime television, waiting for the lawyers' commercials. The lawyers are already looking for you.
Personal-injury attorneys are getting -- or trying to get -- access to crash reports from police departments across the metro-east. The lawyers' investigators scour the reports, looking for names and addresses of people who have been injured or might have a lawsuit on their hands. The chosen people then get letters and brochures in the mail, in which the lawyers tout their ability to win multimillion-dollar settlements.
Two law firms in particular, both with headquarters in Wisconsin, are blanketing metro-east police departments, trying to get their hands on crash reports. Some of the departments are allowing access, while others are resisting on grounds that letting people see the reports could lead to identity theft, or would be too much of a burden for police.
Some police officials flat-out call the practice ambulance-chasing. But the lawyers say they're trying to inform people of their rights and put them on a level playing field with insurance companies.
"Insurance companies can immediately contact people after an accident, and people should have the option to know what their rights are, if they want to talk to a lawyer," said Michael Hupy of the Milwaukee-based Hupy and Abraham law firm. "Many people still think you have to pay a fee to talk to a personal-injury lawyer."
TO READ THE FULL ARTICLE GO TO: http://www.bnd.com/news/crime/story/485257.html
Doctors provide little in the way of empathy, even when their patients seem to ask for it, according to a study in the Sept. 22 Archives of Internal Medicine. Researchers looked at real doctor/patient encounters between 137 patients and their oncologists or thoracic surgeons from a Veterans Affairs hospital.
Doctors could respond to concrete concerns, such as that a patient was feeling physical pain, or was having trouble getting an appointment. But they largely ignored patients' emotional concerns -- even when that concern was an outcome of surgery, or how long they had left to live.
Here's a sample of an encounter reported in the study when the patient received the diagnosis:
"Patient: But this is kind of overwhelming, you know...I've had anxiety problems before. I go to the [mental health clinic]...
Doctor: Okay."
To read the full blog post go to: http://latimesblogs.latimes.com/booster_shots/2008/09/dont-look-to-a.html
Kyle Jim was 11-years-old when he went to Via Christi St. Francis Emergency Room in 1996 with fever, rash and headache.
It turns out Kyle had Rocky Mountain spotted fever he contracted from a tick.
Doctors misdiagnosed Kyle and didn't get him the right medication soon enough.
Because of the misdiagnosis, both of Kyle's legs had to be amputated, plus four fingers on one hand, and his index finger on the other. He also lost his hearing, speech and has brain damage.
His attorney says today's verdict is a big win for Kyle and his family and brings awareness to a treatable disease.
"This is a disease that was cured by American medicine and considered to be a triumph of American medicine. Kyle should not be in this condition and Margie (Kyle's mom) shouldn't have to suffer like she has," says attorney John Sheehy who worked with Patterson, Gott & Burk.
Of the $9 million awarded, more than $5 million was for pain and suffering, but Kyle's attorneys say Kansas law caps that amount at $250,000.
To read the full article go to: http://www.kansascw.com/Global/story.asp?S=8949085
KANSAS CITY, Mo. -- A federal jury awarded a man who was acquitted of molesting his adopted daughter $16 million on Friday. The verdict came in Theodore W. White Jr.’s lawsuit against his ex-wife and a Lee's Summit police officer.
White, who now lives in Aurora, spent more than five years in prison after a jury convicted him in 1999 of molesting the girl between 1995 and 1998. He got a new trial on appeal in 2002 after prosecutors revealed the lead detective, Richard McKinley, was dating White’s wife during the investigation. The ex-wife, Tina, is the mother of the girl and is now married to McKinley.
White’s second trial ended with a hung jury, which was split 11-1 in White’s favor. His acquittal in his third trial came in February 2005, and White left jail and moved to Aurora to be near his family, who supported him and raised money for his defense.
To read the full article go to: http://www.ky3.com/news/local/27671074.html
GOSHEN — A state Supreme Court jury awarded $29.4 million in damages Friday to the family of a New Jersey man who died in the aftermath of a 2002 car crash on the state Thruway in Cornwall.
It appears to be the largest civil damage verdict in Orange County's history, said Steven I. Milligram, the president of the Orange County Bar Association. "I've been practicing here since 1986, and I have not heard of anything that high," said Milligram, who's a partner in a Newburgh law firm.
The crash occurred on Jan. 25, 2002, when a freight container on a northbound flatbed trailer smashed into the bottom of the Pleasant Hill Road overpass. Denise Malkin of Franklin Lakes, N.J., swerved her SUV to avoid the wreckage of the exploding container and was broadsided by another tractor-trailer.
The impact left Malkin's husband, Peter, suffering from serious internal injuries and brain damage that eventually claimed his life.
His daughter, who was 15 at the time, also suffered injuries. The Malkins were on their way to Vermont to go skiing.
During the two-week trial before Justice Joseph Alessandro, the jury heard Malkin described as "a spectacular person and spectacular worker," said Robert Kelner, the lawyer who represented Malkin's family. Malkin worked for CSC Corp., a large business technology company.
The damages are against Sebastian Tremblay of Montreal, who was at the wheel of the tractor-trailer and got a ticket for driving an over-height vehicle, as well as two Canadian companies: Transport Expressway Inc., which owned the truck, and Finloc, a leasing company with insurance on the trailer.
"This case was one of the worst human catastrophes that I have seen in my practice. It came out before the jury as to the horrible impact of this accident on all of the members of Peter Malkin's family, and I really do feel that justice was done," Kelner said after the verdict.
Lawyers for the defendants indicated that they'll ask Alessandro to reduce the size of the award.
On July 30, a jury awarded over $2.5 million to James Klotz and his wife Mary in a medical malpractice lawsuit against a heart surgeon, his group practice and St. Anthony's Medical Center in St. Louis, Mo. In 2004 Mr. Klotz, now 69, was rushed to the hospital with a heart attack and a pacemaker was surgically implanted. He developed a drug-resistant staph infection called methicillin-resistant Staphylococcus aureus (MRSA). It was so severe that he underwent 15 additional operations, spent 84 days in the hospital and lost his right leg, part of his left foot, a kidney and most of his hearing.
To read the entire article go to: http://online.wsj.com/article/SB121867229022038907.html?mod=googlenews_wsj
A Lee County jury said Wal-Mart owes a Fort Myers woman $1 million because its negligence caused her to fall and injure her neck.
Linda Gail Wright, now age 57, slipped at the North Fort Myers Wal-Mart on Oct. 30, 2002 while searching for Halloween candy.
She slipped on a puddle of oil and water that had spilled from rotisserie chickens, which were packaged by Wal-Mart in plastic containers.As a result, Wright, an avid horse trainer and rider, underwent multiple cervical spine surgeries. She now has a permanent titanium cage stabilizing her neck. Wright owes more than $123,000.00 in medical bills.
Throughout the trial, Wright’s attorneys highlighted Wal-Mart’s failure to follow many of its own policies and procedures in regards to keeping its floors safe and clean for customers.
KINGSTON — A state Supreme Court jury in Ulster County this week awarded $5 million to a Milton man who suffered injuries in a barge accident.
George Brown, 56, required three surgeries to address back injuries in the wake of the 2003 accident, which happened while his barge was on Long Island Sound. His lawyer, Elliot Tetenbaum, argued that the barge’s owner, Reinauer Transportation Cos. of Staten Island, should be punished for causing Brown’s medical predicament. Reinauer’s lawyer argued Brown had pre-existing medical problems.
A jury has awarded $19.6 million to a couple who sued a hospital for medical malpractice after their baby was brain-damaged at birth and the mother was mutilated in the delivery.
The Maings' lawyer, Thomas Moore, said Daniel Maing was born with cerebral palsy after Dr. Po Ching Fong, a hospital resident, yanked at his head with forceps for 23 minutes until she pulled him through his mother's birth canal.
HORROR MOVIE:Surveillance video shows Esmin Green slumped in her seat (1),...
Last updated: 8:38 am July 1, 2008
They callously ignored her.
Esmin Green is seen in these infuriating images collapsing on the psychiatric emergency-room floor at Kings County Hospital - stared at by one worker, ignored by a security guard, and finally nudged by a health-care staffer on June 19.
She lay there for an hour before doctors and nurses snapped to attention and tried to revive the 49-year-old Jamaica native.
It was too late.
The shocking video was released by lawyers suing KCH in federal court on an unrelated matter.
"I heard about it and it's horrible how she died like that," said Green's landlady, Beatrice Wallace, of East 94th Street in Brooklyn.
She'd lived there until just days before she died.
The needless death resulted in the immediate firings of the director of psychiatry, the doctor on duty and the director of security, said a spokeswoman for the city's Health and Hospitals Corp., which runs the municipal hospital.
Two nurses and a security guard were suspended pending hearings.
"We are all shocked and distressed by this situation," HHC President Alan D. Aviles said in a statement last night. "It is clear that some of our employees failed to act based on our compassionate standards of care."
He added that "as a result of this tragic incident, we will put into place additional and significant reforms" to protect psych patients.
A federal court order will be signed today, directing the hospital to assemble a search team to fill the spots of the fired staff, and establishing guidelines to reduce the waiting time at the emergency room.
HHC said Green was brought to the psychiatric e.r. by EMS medics on the morning of June 18, suffering from agitation and psychosis.
The patient refused medical review and was admitted against her will.
She was left in the e.r., supposedly under supervision, waiting for a bed in the inpatient unit to become available.
Nearly 24 hours later, on the morning on June 19, she was found unresponsive on the floor.
Shockingly, more than a year earlier, the New York Civil Liberties Union and others sued KCH over unsatisfactory conditions there.
The lawsuit, filed at Brooklyn federal court, described conditions in the psychiatric unit as "squalor," more like a squatter camp than a hospital.
"The pattern of neglect and abuse at Kings County Hospital Center is an affront to human dignity," NYCLU Executive Director Donna Lieberman said at the time.
"The New Yorkers most in need of our care and support are being denied their basic rights by the very institutions entrusted to protect these individuals."
Published: Friday, June 27, 2008 at 9:26 p.m. Last Modified: Friday, June 27, 2008 at 9:31 p.m.
TAMPA | A jury hearing a civil lawsuit against Tampa General Hospital awarded a $12 million judgment Friday to a Polk County couple whose premature baby died there after having been transferred from Winter Haven Hospital.
Parents Allyson Parham and Robert Gardner contended in their suit that TGH didn’t have the appropriate specialists on its staff to deal with their baby’s infection. The suit is one of at least nine with similar allegations filed by Tampa lawyer Harold Tripp Sebring.
Amanda Sparks, a Fort Meade resident who is among the other parents in those suits and was in the Tampa courtroom Friday, said the family “cried and cried and cried” when the verdict was announced.
Woman wins more than $6 million in medical malpractice case
By Julie Manganis Staff writer
SALEM — A woman who wanted to stop having to take heart medications so she could have another child, only to end up with permanent heart damage, has won a $4.3 million verdict in a lawsuit against two Boston doctors.
With interest, the total amount will be more than $6 million, said the woman's lawyer, Annette Gonthier-Kiely of Salem. It's one of the larger jury awards in a medical malpractice case in recent history. The jury returned its verdict Wednesday in Suffolk Superior Court.
Amesbury native Denyse Richter was a 39-year-old mother of three who wanted to have a fourth child when, in 2002, she saw Dr. Laurence Epstein, chief of the arrhythmia service at Brigham and Women's Hospital in Boston. Epstein was a noted specialist in a procedure that used radio frequency catheter ablations — using high-frequency radio waves to burn away abnormal cells that were causing the arrhythmia.
Published: Friday, June 27, 2008 at 9:26 p.m. Last Modified: Friday, June 27, 2008 at 9:31 p.m.
TAMPA | A jury hearing a civil lawsuit against Tampa General Hospital awarded a $12 million judgment Friday to a Polk County couple whose premature baby died there after having been transferred from Winter Haven Hospital.
Parents Allyson Parham and Robert Gardner contended in their suit that TGH didn’t have the appropriate specialists on its staff to deal with their baby’s infection. The suit is one of at least nine with similar allegations filed by Tampa lawyer Harold Tripp Sebring.
To read the full article go to:http://www.theledger.com/article/20080627/NEWS/617208967/1410&title=Jury_Awards__12_Million_to_Polk_Couple_in_Malpractice_Suit
ExxonMobil to pay $1M jury award to woman who chopped off fingers
6/26/2008 1:00 PM
By David Yates
Minutes before they began deliberating, plaintiff's attorney Brett Thomas told jurors that if they didn't award his client $3.7 million for inadvertently sticking her hand in a rotary feeder, ExxonMobil would throw a party.
Seemingly, jurors thought the oil company executives could party but on a smaller budget, awarding the plaintiff Vickie Hall $1 million for her self-mutilating injury.
The week long trial of Hall vs. ExxonMobil began June 17 in Judge Gary Sanderson's 60th District Court, and concluded Wednesday, June 25.
When a conveyor began spilling polyethyline pellets onto the floor, workers at ExxonMobil came up with modifications to the machine that solved the problem. But within hours, a contract worker had parts of her fingers sliced off while using the altered equipment.
Jurors were asked to decide whether ExxonMobil negligently failed to place a guard over the rotary blade, or if Hall, who knew a spinning blade hovered only inches away from her hand, was solely responsible for her injury.
GRAND RAPIDS -- A Kent County jury has ordered a West Michigan pain clinic and one if its former doctors to pay $6 million to a woman who became paralyzed after a treatment.
Jurors sided with Betty Geldersma's contention that the doctor was negligent for failing to swab her neck with disinfectant before giving her pain shots.
Geldersma developed an infection in her spine canal that resulted in losing use of her legs and most function of her arms and hands, said her lawyer, Grand Rapids attorney Brad Glazier.
"Medical negligence cases are always very difficult because juries don't want to second-guess a doctor. But we thought this was a case of strong liability and large damages," Glazier said. "This type of infection is not something that happens unless there has been a failure to swab the area."
AMY FLEDDERMAN's case was never going to be settled out of court, her parents say, because it was never about money.
Daniel and Colleen Fledderman, of Newtown Square, Delaware County, decided in 2001 that the doctor who performed the fatal liposuction surgery on their daughter, an 18-year-old Penn State freshman, must be held accountable for her death.
And they wanted to warn the public about Dr. Richard Glunk, who they say refused to call an ambulance before it was too late to save her life.
Glunk, a board-certified plastic surgeon who has been practicing for 21 years, insists that Fledderman died from a rare and virtually untreatable complication that was out of his control.
Yesterday - exactly seven years after Fledderman walked into Glunk's King of Prussia office to have pockets of fat removed from her chin and stomach - a Philadelphia jury said he was wrong.
And they want him to pay for it.
The jury of nine women and three men deliberated for 14 hours over three days before awarding the Fleddermans $20.5 million in compensatory and punitive damages, finding that Glunk and his nurse anesthetist were responsible for Amy's death.
To read the entire article, go to: http://www.philly.com/philly/news/20080524_A__20_5M_AWARD_IN_LIPO_DEATH.html
$6 million awarded to family of woman in care-home death
But settlement will trump the jury's amount
By Rhonda Bodfield
ARIZONA DAILY STAR
Tucson, Arizona | Published: 05.15.2008The family of a woman who died of a morphine overdose was awarded $6 million by a Pima County jury.
The jury determined last month that 90 percent of the award should be paid by the nursing home that cared for 81-year-old Sylvia Culpepper, while 10 percent should be paid by Tucson Medical Center.
TWENTYNINE PALMS — A jury has awarded $15 million to the family of a 17-year-old Twentynine Palms boy who was severely injured in a 2005 traffic collision in Joshua Tree.
According to Spencer Lucas, attorney for the family, Kyle Tilton, who was 14 at the time of the accident, will require care for the rest of his life, and the award will adequately provide for his future medical needs.
“The family is very pleased,” he said. “They are relieved that now they can rest assured that Kyle will have the funds to be able to have the proper medical treatment that he so desperately needs.”
The boy was injured Nov. 2, 2005, when a Southern California Gas truck ran a red light at Twentynine Palms Highway and White Feather Road and struck the Tilton vehicle on the passenger side where Kyle was sitting.
Lawyer sued for not filing medical malpractice papers against urologist
BY JOHN MARZULLI
DAILY NEWS STAFF WRITER
Monday, April 21st 2008, 4:00 AM
A Great Neck lawyer is being sued for failing to file court papers in time to sue a urologist who allegedly botched a penile implant procedure.
The suit, filed in Brooklyn Federal Court, accuses Ira Podlofsky, of the law firm Podlofsky, Hill, Orange & Modzelewski, of missing the deadline to file a medical malpractice action against the doctor.
An Atlanta judge says a Georgia law that limits medical malpractice damages in some cases is unfair to the poor and middle class. He says the law needs to be tossed out.
Click on the link below to read the full story at WALB news.
NY Sen. Schneiderman Votes for Us, Against “Harvey’s Law”
I’m proud of how Senator Eric Schneiderman a) stood by his principles and stood up against the squandering of our public funds. Articulating why a proposed bill to subsidize New York medical malpractice insurance is problematic, he identifies the real medical malpractice crisis—the tiny 4% of doctors who are responsible for a whopping 50% (yes, half) of the medical malpractice payouts. The real problem is the lack of effective professional discipline that allows these doctors to keep practicing. The bill he voted against would exacerbate this problem by forcing the vast and overwhelming majority of good doctors to subsidize malpractice insurance for high risk doctors, spreading the costs of their malpractice across the board.
Below is a clip of him explaining why he is voting against the bill. This is the type of thing we need to see more of: representatives who fully grasp the issues and the interests involved, and are willing to stick to their guns and speak out on behalf of what they believe.
Sign or go elsewhere litigation-wary doctor's demand
By Kris Hundley, Times Staff Writer Published Friday, April 4, 2008 4:38 PM
In her nearly two decades as a nurse, Kathleen M. Wagner of Palm Harbor has encountered dedicated doctors as well as frivolous malpractice lawsuits.
But she still flinched when a video provided by her doctor's office in Clearwater required that she give up her right to a trial by jury if she wanted treatment.
"I watched it thinking, 'They can't mean me,' " she said of the binding arbitration agreement required by Tampa Bay Women's Care, the largest obstetrics/gynecology group in the area. "I'd never sue them, but I don't want my rights taken away."
Unhappy but unwilling to miss her annual checkup, Wagner, 60, signed the mandatory agreement. Then she wrote to Randy Cohen, who writes the weekly "Ethicist" column for the New York Times. "Is this policy ethical?" Wagner asked. In a response entitled "Doctor, Bully," and published March 30, Cohen said the practice may be legal, but it is not ethical.
"The right to our day in court should be among the inviolable,' he wrote.
Not so in Florida. According to the state's largest medical malpractice insurer, several hundred doctors now require patients to accept binding arbitration as a condition for care. Obstetricians are particularly likely to have such a requirement because their specialty commands some of the highest rates for professional liability premiums.
"It's not just in Florida; it's something that's happening around the country," said Robert White, president of First Professionals Insurance Co., known as FPIC, in Jacksonville. "More and more we're seeing a desire on the part of doctors and patients to find an alternative to the very expensive, protracted litigation process."
White said the 70 doctors at Tampa Bay Women's Care are among "several hundred" of the insurer's 7,000 customers statewide who require patients to sign a binding arbitration agreement. FPIC even helped to create the practice's seven-minute explanatory video, available on the doctor's Web site or hand-held DVD.
"It utilizes a medium that preserves what people were told if there's any dispute in the future about what was said," White said.
Key points of the agreement are that patients and their families waive their constitutional right to a jury trial in case of a claim.
A lawsuit is still filed with the court, but the complaint is heard by a three-member arbitration panel, with each side choosing one arbitrator and the third picked jointly. Proceedings are private, and the cost of arbitration is split between the patient and doctors. The arbitrators' decision is final, with very limited rights to appeal.
Clancy Bounds, a Winter Park lawyer, said arbitration might be appropriate for disputes over cell phone contracts but not in a doctor-patient relationship.
"You walk into a doctor's office for treatment, not to deal with a significant legal issue and decision,' he said. "The relationship starts out with an uneven hand in favor of the doctor."
Bounds, a member of Florida Justice Association, said trial lawyers are trying to get a bill through the Legislature that will add certain consumer protections to the arbitration process.
"Right now it's the Wild West out there," he said. "And business controls the rules being applied."
Dr. Robert Yelverton, chief executive of Tampa Bay Women's Care, said that only about 100 patients have refused to sign the arbitration agreement, which has been phased in over the past year.
"Very few patients have objected,' he said, adding that the group had 100,000 patient visits last year. "They understand why we're doing this."
The reason, he said, is simple economics. Yelverton's 70 OB/GYNs pay an average of $67,000 each year for $250,000 worth of liability insurance. That's a higher premium for less coverage than in the past, but at least the group's doctors have insurance. About 5,000 of the state's 35,000 physicians have opted to go without insurance, though they're required by law to post a sign saying they have posted a $250,000 bond.
"Our insurer didn't give us any discount for requiring arbitration, but we hope our claims will be more rational and reasonable and eventually it will reduce overall rates,' Yelverton said. "Plus, we can give patients the satisfaction of knowing we have professional coverage."
Yelverton said patients have the option to go elsewhere if they don't want to accept binding arbitration, since his group only accounts for six of about 20 OB/GYNs in Pinellas County and 40 percent of the specialists in Hillsborough County. But it's not always easy for women in the Tampa Bay area to find another provider.
Doctors with USF Physicians Group in Tampa don't have to deal with the arbitration issue because as employees of the University of South Florida, they are immune from civil lawsuits. But Dr. Cathy Lynch, a USF obstetrician, said she empathized with the dilemma of self-employed doctors.
"Insurance reimbursements are going down while costs are going up, so they've got to do something,' she said. "People are generally quicker to give a tip to their hairdresser than pay their co-pay."
Another large local medical group, Diagnostic Clinic in Largo, considered requiring patients to accept binding arbitration a couple of years ago but dropped the idea.
"We were not smart enough to figure out how to do it without creating more bad feelings from patients than it was worth,' said Dr. Charles Campbell, who heads the group which has 100 providers at two locations.
Instead, Diagnostic Clinic found another way to avoid the high cost of insuring doctors who deliver babies. But it's not one that will help women of child-bearing age.
"We just got out of the OB business," Campbell said.
Kris Hundley can be reached at hundley@sptimes.com or (727) 892-2996.
In a medical malpractice case last week, plaintiff's attorney R. Sadler Bailey repeatedly called defense attorneys liars and told the judge her rulings could "set a world record for error."
On Wednesday, Bailey was led from the courtroom in handcuffs after Circuit Court Judge Karen Williams held him in direct criminal contempt of court for those and other "unprofessional and inappropriate" remarks he has made over the two-year course of the case.
"Much time was wasted because Mr. Bailey could not discuss issues in this case in the courteous and controlled manner that is expected of all attorneys and officers of the court," said Williams, who declared a mistrial in the case last Thursday. "He made abusive remarks which the court considers to be discourteous to defense counsel and disrespectful to the judicial process as a whole."
In a courtroom crowded with some two dozen attorneys and deputies, Williams sentenced Bailey to 10 days in jail, but promised to suspend nine days if he participates in the Tennessee Lawyers Assistance Program, which helps lawyers with personal issues.
He was jailed, with bond set at $1,500.
Attorney Jake Erwin, who represented Bailey, argued that Williams should give him time to prepare a defense or to allow Bailey to address the court, but Williams denied the request and read her seven-page finding of fact, conclusions of law and pronouncement of sentence.
"Your honor, my client is not being given due process, and we object to the procedure," Erwin said. "I feel like we're in front of a train that can't be stopped."
Erwin said later he would file an immediate appeal with the Tennessee Court of Criminal Appeals.
Bailey, 50, who has practiced law for more than 30 years, is known for his aggressive style and was once ordered by another judge to take an anger management course.
John Hall of Atlanta, an attorney for the defense in the case before Williams, said he was appalled last week by Bailey's behavior.
"I have never in my life seen a lawyer speak with a judge in that manner, to tell you basically you can't get rulings right, criticize you, argue with you, demean you, belittle you and then turn around and do the same thing to us," Hall said, according to a trial transcript. "It is a strategy to be a bully. ... I get called a liar. You get called a fool, and it's just ridiculous."
Bailey said in an interview last week that he is an honest and ethical attorney who fights passionately and aggressively for his clients. He said that if he sometimes goes too far, it is only because he is trying to stand up for what is right.
The medical malpractice case involving a 9-year-old girl who has been severely handicapped since birth settled out of court after Williams granted the defense motion for a mistrial.
Under the law, criminal contempt includes acts disrespectful of the court or its processes that obstructs the administration of justice.
Direct contempt occurs in the presence of the court, as opposed to constructive contempt, which occurs outside of court and may include failure to abide by court orders.
Staten Island jury holds Ford liable in fatal crash, awards $6.5M
by Staten Island Advance
Thursday March 27, 2008, 8:12 PM
A Staten Island jury today awarded $6.5 million to the widow and estate of a Boy Scout leader from Mariners Harbor who was killed eight years ago when his Ford Explorer went out of control and rolled over on an upstate highway.
Steven Motelson's death was due to a defectively designed roof support system, determined a jury in the home port annex of state Supreme Court. Motelson was 60.
But the panel found Ford was not liable in the death of his 9-year-old grandson and the injuries suffered by two other family members in the horrific July 1, 2000, crash.
Gary Motelson, then 36, Steven Motelson's son, was a front-seat passenger. Gary Motelson's 9-year-old and 5-year-old sons were rear-seat passengers and were ejected along with a third rear-seat occupant. The jury said the two boys were not wearing seat belts.
Minutes after the verdict was announced, Elissa Motelson, the boys' mother, wailed in the courthouse lobby.
"They killed my son," she sobbed, as family members tried to console her.
Michael Motelson, another son of Steven Motelson and the administrator of his estate, shook his head after the verdict was read.
Outside court, he said the jury had vindicated his father, although he expressed disappointment at Ford's being found not responsible for the other death and injuries. The panel said Steven Motelson had not driven the SUV negligently.
"For the last eight years, Ford has been saying my father was responsible for the accident and for killing my nephew and himself," Michael Motelson said. "The jury said loud and clear that he's not responsible. They acknowledged this was the worst roof on the road today."
It was not immediately clear whether the verdict will be appealed.
Robert Cecala, a Ford lawyer, declined comment outside court.
Jurors were not immediately available for comment afterward.
The panel reached a verdict hours after Justice Joseph J. Maltese charged it at the end of the four-week trial. Both sides had offered reams of complex documents, data, experts' tests and videos into evidence.
The Motelsons sued Ford Motor Company, the SUV manufacturer; and Ford Motor Credit Company, the SUV owner and lessor.
Steven Motelson lost control of his 1998 Explorer while returning home from a Boy Scout trip upstate. The SUV flipped over nearly four times on Route 17 in Goshen, killing Motelson, fatally injuring his 9-year-old grandson and injuring the three other occupants.
The crash, about 75 miles northwest of Staten Island, occurred around 3:35 p.m. as the group returned from a Scouting camp-o-ree at Ten Mile River Scout Camps in Narrowsburg, N.Y.
The plaintiffs contended the SUV suddenly sped up and lost its brakes as Steven Motelson wrestled to regain control.
In his closing argument yesterday, J. Edward Bell III, a lawyer for the Motelsons, accused Ford of seeking profit over safety.
Steven Motelson was killed, he said, when the driver's side roof shredded on the first roll, exposing his head. To save pennies, Ford had shortened a metal support rod in the door that bolstered the roof, he charged.
Bell also said the SUV's speed-control cable and rear seat-belt system failed. Each defect could have been remedied with minor additions or enhancements that would have cost Ford a dollar or two. Ford, he said, was aware of those problems.
In his closing argument, Cecala, the Ford lawyer, said Steven Motelson's actions had set the deadly chain of events in motion.
Motelson, he alleged, wasn't paying attention, drifted off the road, and sent the vehicle careening when he overcompensated on the steering wheel trying to regain control.
He further contended that company tests and evidence showed the speed-control cable did not jam open; in that event, the SUV would have spontaneously accelerated. Additional tests showed the three rear-seat passengers could not have been wearing seat belts -- although two of the victims said they all were.
Cecala said the Explorer's construction exceeded federal standards and could not have prevented the deaths and injuries.
Jurors, however, found Ford negligent in the design, inspection and testing of the roof support system.
The panel awarded $5 million in economic loss to Enid Motelson, Steven Motelson's widow, and $1.5 million in damages to his estate.
"Clearly, [this is] a resounding verdict against Ford in regard to their weak roof structure," Bell, the plaintiffs' lawyer said outside court. "It killed Mr. Motelson and it will kill others if something isn't done about it."
A New York jury has found a Lewiston neurosurgeon liable for a botched spinal surgery that left a New York man in a wheelchair.
Dr. Victor T. Ho was ordered to pay the former patient $7.9 million. Because the two sides reached a settlement agreement before the verdict, however, his actual payment is capped at $1.9 million.
Ho is a spinal, brain and neurovascular surgeon with New England Neurosurgery in Lewiston, with surgical privileges at St. Mary's Regional Medical Center and courtesy privileges at Central Maine Medical Center in Lewiston. At the time of the New York man's surgery in 2000, Ho was working for New York Methodist Hospital in Brooklyn.
Ho has been the subject of numerous malpractice suits in New York, most of which he's won. In 2005, New York regulators suspended his New York medical license for negligence involving a brain tumor biopsy, but then immediately stayed the suspension and placed him on probation for two years, according to that state's Administrative Review Board for Professional Medical Conduct.
During that probation, Ho received a valid Maine medical license and began working in Lewiston, according to state and hospital officials.
New England Neurosurgery is a private practice comprised of independent doctors who share the office space. St. Mary's Regional Medical Center spokesman Russ Donahue said his hospital knew Ho's New York license was on probation before it gave him hospital privileges.
"Dr. Ho was carefully credentialed through our medical staff and board procedure, as are all of our physicians. This was subject to state licensure, which he received," Donahue said.
Donahue said the hospital is still comfortable having Ho perform surgeries there, despite the recent malpractice verdict.
CMMC spokesman Randy Dustin did not know Monday whether that hospital had known about Ho's background in New York before it granted him the limited privileges of a courtesy staff member.
Through his office spokeswoman, Ho has declined to comment.
Lawsuits
According to the St. Mary's Web site, Ho graduated from Upstate Medical Center in Syracuse, N.Y., in 1976, did an internship at Albert Einstein College of Medicine in Bronx, N.Y., and completed his neurosurgery residency at New York University School of Medicine in New York, N.Y.
In 2000, Ho performed spinal surgery on Marcel Paul, a 60-year-old New York man, at New York Methodist Hospital. Shortly after the operation, Paul had trouble moving his left side and needed to use a wheelchair. A month later, according to Paul's lawyer, Ron Burke, another surgeon found Ho had used an undersized bone plug to stabilize Paul's neck. Among other problems, the plug had migrated and was pushing on his spinal cord.
"He was never able to walk again," Burke said.
Paul sued. After a two-week trial, the jury found Ho lacked informed consent from the patient before performing the surgery and had, among other things, failed to place the appropriate bone graft and failed to order the appropriate tests to determine why Paul had problems with his left side after surgery, Burke said.
Although Paul claimed Ho also failed to monitor his motor functions during surgery, the jury found Ho had monitored him correctly.
The jury awarded Paul $7.9 million. Because the two sides had reached a settlement agreement before the verdict, however, Ho will pay $1.9 million and will not appeal the decision, the judge in the case said.
Ho has been the defendant in at least six other malpractice suits, according to Burke. Ho won four of those outright and a fifth through appeal, Burke said.
The New York court system's Web site lists two other malpractice suits pending against Ho.
According to the American Association of Neurological Surgeons, neurosurgeons get sued, on average, once every 18 months to three years. In any given year, one-third of neurosurgeons will have a case pending against them.
Maine license
In 2005, New York disciplined Ho for simple negligence involving a patient with a brain lesion.
According to a 42-page report from the Administrative Review Board for Professional Medical Conduct, Ho biopsied the patient's brain lesion - an attempt to find out whether it was a tumor or a problem with blood vessels - but that biopsy didn't provide a diagnosis. After that biopsy, Ho failed to tell the patient there were additional ways to get a diagnosis, the board said. A month after the biopsy, the patient was unable to stand on her own and an MRI showed the lesion had grown so large that her brain was "significantly displaced" by it. Six weeks after the biopsy, Ho operated and found cancer.
The report said hearing committee members found no incompetence or gross negligence on Ho's part, but found simple negligence and deemed Ho "to be very arrogant, condescending and unwilling to own up to his mistakes." The report shows Ho was put on probation from March 2005 through March 2007.
Ho received a Maine medical license in November 2006.
Randal Manning, executive director of the Maine Board of Licensure in Medicine, said his board carefully examined Ho's application and interviewed Ho, who was "upfront and straightforward" about his probation in New York. Because New York found him guilty of simple negligence, not gross negligence, the board found no reason to deny him a Maine license.
Ho has not been disciplined in Maine and his license here remains valid.
Ho joined New England Neurosurgeon in December 2006 and received privileges at St. Mary's in January 2007, both while still on probation in New York.
CMMC's spokesman did not know when Ho had received courtesy privileges at the hospital or what those privileges allow him to do within the hospital. CMMC records show Ho has never performed surgery there.
The young 6-year-old girl who was badly injured in a pool accident last June has died. Abigail Taylor passed away Thursday night at the Nebraska Medical Center in Omaha.
Abigail was injured back in June 29 when she was sitting in a wading pool in St. Louis.
Reports are that her parents were with her when she died.
The powerful suction of the drain ripped out part of her intestinal tract in an absolutely tragic accident.
The six-year-old has been in the hospital since December. She had to receive organ transplants to try and be cured of her medical troubles.
She ran into many complications though, as she had to go through several different surgical procedures. She also had to be fed through an intravenous tube.
In the beginning of March, she got the worst news yet when she had to begin chemotherapy. She developed cancer due to the organ transplants.
This story has sparked nationwide interest as many pushed for new safety standards to prevent further accidents.
In December, Congress approved legislation to ban drain covers that do not meet certain safety standards.
Minnesota lawmakers are also looking into new pool safety regulations on the state level.
It is a shame that something terrible has to happen before action is taken and safety regulations are put in place.
March 13, 2008 -- A Queens jury awarded a 10-year-old girl more than $21 million after her father was killed in a fiery car crash caused by a doctor nearly five years ago.
Antionette Hawthorne-Stanton was barely 5 years old when her father, James Stanton, was killed in a car crash after being hit by minivan driven by a physician from Teaneck, NJ.
Stanton and his brother were both burned to death as flames engulfed the car.
"She was devastated. There was no more communication, no more hugs and kisses," said the girl's mother, Sheila Hawthorne. "She enjoyed being in his presence, and all that came to a screeching halt."
The Queens Supreme Court jury awarded Antionette $21.35 million - $10 million alone for pain and suffering - after finding Dr. Howard Antosofsky and the company from which he leased the minivan responsible for the crash.
The girl's lawyer, Evan Torgan, said Antionette got to hear from witnesses how much of a doting father Stanton was. "It was important for her to see who her father was, how much he loved her," he said. "And it was important for her to know he didn't abandon her."
Monmouth jury awards $19 million to woman in malpractice case
(Published March 18, 2008)
FREEHOLD, N.J. — A jury has awarded more than $19 million to a Freehold woman whose 10-year-old son was born with severe brain damage and cerebral palsy.
A judge could reduce Monday's award since the jury found there was a chance the child would have suffered some harm anyway.
Bonnie Kowalski claimed that Dr. Aravind Palav didn't immediately notice her abdominal bleeding when she arrived at Riverview Medical Center in Red Bank, and didn't act promptly to deliver the baby by C-section.
Palav's attorney says he expects to appeal the verdict.
SAN DIEGO – An appeals court ruling upholding the $82.6 million in damages awarded to a San Diego woman paralyzed in a Ford Explorer rollover accident will be appealed to the California Supreme Court, an attorney said Tuesday.
“We plan to ask the California Supreme Court to review this case, and if need be, the U.S. Supreme Court,” Ford Motor Co. attorney Theodore J. Boutrous Jr. said by telephone from Los Angeles.
The award, affirmed by the 4th District Court of Appeal in a 100-plus page decision, includes punitive damages of $55 million to Benetta Buell-Wilson, who lives in the San Diego neighborhood of Del Cerro. Her back was crushed in the accident on Interstate 8 near Alpine on June 19, 2002.
Dennis A. Schoville, Buell-Wilson's attorney, said Tuesday he was not surprised to hear of Ford's intention to appeal.
“That's been their intention all along, and they just don't get it,” said Schoville, of San Diego. “... I believe that the Fourth District Court of Appeal opinion is bulletproof, and for good reason.”
Ford has sought a new trial. The company does not believe punitive damages should be awarded, or at the very least, “they should be significantly reduced” in light of Supreme Court decisions limiting awards in state courts for punitive damages, Boutrous said Tuesday.
Buell-Wilson's suit alleged the Explorer's design was flawed because it had a high center of gravity and low wheelbase, making it prone to tip over, and a weak roof. It also alleged that Ford knew about the design flaws but did nothing to fix them.
A San Diego Superior Court jury in June 2004 awarded Buell-Wilson and her husband, Barry, $369 million, including $246 million in punitive damages.
It was the first verdict against Ford in an Explorer rollover case. The automaker had previously won at least a dozen similar cases.
Punitive damages are awarded to punish defendants and deter others from similar behavior.
“What Ford does not seem to want to admit is that there were direct findings of intention ... involving the conscious disregard for the safety of the public and victims like Mrs. Wilson, who are suffering by the thousands, and it's time for them to understand that they are being punished for intentional wrongful conduct,” Schoville said.
San Diego Superior Court Judge Kevin A. Enright in August 2004 reduced the jury's award to $150 million, $75 million in compensatory damages and $75 million in punitive damages. Enright said evidence supported the jury's findings that the company knew of design defects, but did not correct them.
Ford appealed, and in July 2006, the 4th District Court of Appeal, while finding the automaker liable for Buell-Wilson's injuries, ruled the punitive damages were excessive and violated a state law's ban on awards that are the product of “passion or prejudice.” The award was then cut to $82.6 million.
In an unexpected move in May 2007, the U.S. Supreme Court told the appeals court to re-examine its ruling in light of a Supreme Court decision several months earlier involving punitive damages against tobacco company Philip Morris.
In that case, the Supreme Court overturned $79.5 million in punitive damages against the company awarded to a smoker in Oregon. The court ruled that jurors might have improperly calculated the award based on harm the company caused to other smokers, not just than the man whose widow brought the case.
Boutrous said Tuesday that the appeals court's Monday decision “strongly contradicts” the U.S. Supreme Court's mandate in the Philip Morris case, “and in many other decisions.”
He said the request for a new trial is based in part on Ford's contentions that the trial was unfair because the automaker was prohibited from presenting certain evidence of the truck's safety record, and that references to other Explorer rollover cases should not have been heard in the case.
Buell-Wilson was driving a 1997 Explorer westbound on Interstate 8 near Tavern Road about 5 p.m. when she swerved to avoid a metal object in the road.
The SUV went out of control when a passenger-side wheel lifted off the road. She fishtailed and rolled four and a half times. The SUV landed on its roof, crumpling the roof and crushing her back, paralyzing the then 49-year-old mother of two.
Schoville said Buell-Wilson uses a wheelchair and has had “a very difficult life” as a result of the accident.
“She is paralyzed at the mid-back level, and she lives daily with all of the pain above that level,” he said. “She has major health issues related to her bodily functions, and she continues to live every day with courage for her family. This ruling is extremely important to her because she the wants the (court) decision to help other victims like herself.”
Schoville said Buell-Wilson is cared for by her husband; a son who attends college but lives at home; and a daughter who is a college graduate who lives nearby.
“Mr. Wilson is an amazing husband,” Schoville said. “I've never seen anyone in my 35 years of practice who is more devoted than he is. He takes care of her morning, noon, and night, and works (outside the home) as well.”
SAN DIEGO – An appeals court ruling upholding the $82.6 million in damages awarded to a San Diego woman paralyzed in a Ford Explorer rollover accident will be appealed to the California Supreme Court, an attorney said Tuesday.
“We plan to ask the California Supreme Court to review this case, and if need be, the U.S. Supreme Court,” Ford Motor Co. attorney Theodore J. Boutrous Jr. said by telephone from Los Angeles.
The award, affirmed by the 4th District Court of Appeal in a 100-plus page decision, includes punitive damages of $55 million to Benetta Buell-Wilson, who lives in the San Diego neighborhood of Del Cerro. Her back was crushed in the accident on Interstate 8 near Alpine on June 19, 2002.
Dennis A. Schoville, Buell-Wilson's attorney, said Tuesday he was not surprised to hear of Ford's intention to appeal.
“That's been their intention all along, and they just don't get it,” said Schoville, of San Diego. “... I believe that the Fourth District Court of Appeal opinion is bulletproof, and for good reason.”
Ford has sought a new trial. The company does not believe punitive damages should be awarded, or at the very least, “they should be significantly reduced” in light of Supreme Court decisions limiting awards in state courts for punitive damages, Boutrous said Tuesday.
Buell-Wilson's suit alleged the Explorer's design was flawed because it had a high center of gravity and low wheelbase, making it prone to tip over, and a weak roof. It also alleged that Ford knew about the design flaws but did nothing to fix them.
A San Diego Superior Court jury in June 2004 awarded Buell-Wilson and her husband, Barry, $369 million, including $246 million in punitive damages.
It was the first verdict against Ford in an Explorer rollover case. The automaker had previously won at least a dozen similar cases.
Punitive damages are awarded to punish defendants and deter others from similar behavior.
“What Ford does not seem to want to admit is that there were direct findings of intention ... involving the conscious disregard for the safety of the public and victims like Mrs. Wilson, who are suffering by the thousands, and it's time for them to understand that they are being punished for intentional wrongful conduct,” Schoville said.
San Diego Superior Court Judge Kevin A. Enright in August 2004 reduced the jury's award to $150 million, $75 million in compensatory damages and $75 million in punitive damages. Enright said evidence supported the jury's findings that the company knew of design defects, but did not correct them.
Ford appealed, and in July 2006, the 4th District Court of Appeal, while finding the automaker liable for Buell-Wilson's injuries, ruled the punitive damages were excessive and violated a state law's ban on awards that are the product of “passion or prejudice.” The award was then cut to $82.6 million.
In an unexpected move in May 2007, the U.S. Supreme Court told the appeals court to re-examine its ruling in light of a Supreme Court decision several months earlier involving punitive damages against tobacco company Philip Morris.
In that case, the Supreme Court overturned $79.5 million in punitive damages against the company awarded to a smoker in Oregon. The court ruled that jurors might have improperly calculated the award based on harm the company caused to other smokers, not just than the man whose widow brought the case.
Boutrous said Tuesday that the appeals court's Monday decision “strongly contradicts” the U.S. Supreme Court's mandate in the Philip Morris case, “and in many other decisions.”
He said the request for a new trial is based in part on Ford's contentions that the trial was unfair because the automaker was prohibited from presenting certain evidence of the truck's safety record, and that references to other Explorer rollover cases should not have been heard in the case.
Buell-Wilson was driving a 1997 Explorer westbound on Interstate 8 near Tavern Road about 5 p.m. when she swerved to avoid a metal object in the road.
The SUV went out of control when a passenger-side wheel lifted off the road. She fishtailed and rolled four and a half times. The SUV landed on its roof, crumpling the roof and crushing her back, paralyzing the then 49-year-old mother of two.
Schoville said Buell-Wilson uses a wheelchair and has had “a very difficult life” as a result of the accident.
“She is paralyzed at the mid-back level, and she lives daily with all of the pain above that level,” he said. “She has major health issues related to her bodily functions, and she continues to live every day with courage for her family. This ruling is extremely important to her because she the wants the (court) decision to help other victims like herself.”
Schoville said Buell-Wilson is cared for by her husband; a son who attends college but lives at home; and a daughter who is a college graduate who lives nearby.
“Mr. Wilson is an amazing husband,” Schoville said. “I've never seen anyone in my 35 years of practice who is more devoted than he is. He takes care of her morning, noon, and night, and works (outside the home) as well.”
A DATE of September 15 has been named for the trial of New York cosmetic surgeon Dr. Michael Evan Sachs, the doctor who carried out a face-lift on a Limerick woman in 2005 who died three days after the operation.
Kay Cregan, 42, from Croom, Co. Limerick, died after a face-lift operation performed by Sachs at his Manhattan clinic on March 14, 2005. Shortly after the operation Cregan suffered a heart attack in a recovery room of Sachs’ Manhattan clinic and died on St. Patrick’s Day after she was transferred to nearby St. Luke’s Roosevelt Hospital.
Cregan paid the doctor $32,000 for her operation, which included accommodation after the procedure.
It also emerged this week that Sachs has been struck off the register of physicians in New York. He received word of the rebuke from the New York State Board for Professional Medical Misconduct, which had investigated his role in the handling of four patients, including Cregan, in 2005.
Sachs’ lawyer, Jay Butterman, argued that Cregan suffered from an undiagnosed irregular heartbeat. However, New York’s Medical Examiner ruled in May 2005 that Cregan’s operation was partly to blame for her death, and said she had no pre-existing condition that could have played a role in her death.
Cregan, an employee in Limerick City Council at the time, traveled to New York for her operation after reading a report in an Irish newspaper about a woman from Carlow who attended Sachs’ clinic for a facelift.
Cregan, who is survived by her husband Liam and two sons, Eoghan and Brian, kept the trip a secret from her husband so she could surprise him with her new procedure.
The Cregan family, who are being represented by medical malpractice specialist Thomas Moore, who hails from Waterford, met with Sachs lawyers to set a trial start date for Monday, September 15. In the lawsuit Cregan’s husband blames Sachs of negligence, carelessness and gross indifference. The suit also names Dr. Madhavrao Subbarao, an anesthesiologist, and claims that both doctors failed Cregan during her operation.
Sachs, nicknamed “Dr. Botch” because of his involvement in 30 malpractice cases in a 10-year period, recently sold his New York townhouse for $24 million.
In the coming months a judge will be appointed and a jury of six will be chosen to hear the case. Depending on the verdict, the jury will be asked about monetary damages for the loss, with no limit.
Damages will be decided based on the loss of a wife and mother of two young children, in addition to the pain and suffering Cregan suffered before her death.
Therese Bellissimo Benedict and Robert Benedict held hands after the verdict today in Suffolk Superior Court.
By John R. Ellement, Globe Staff
A couple was awarded $325,000 today by a jury that ruled that they suffered emotional distress when the remains of their stillborn son were lost and possibly cremated by a Boston funeral home.
The civil verdict in Suffolk Superior Court came after 1 1/2 days of deliberation and made the couple very happy. Robert and Therese Bellissimo Benedict said they suffered needlessly because of a mistake made by a local funeral home that lost the personal touch when it was absorbed by a national chain.
The jury found that the funeral home was negligent and caused Robert emotional distress and awarded him $75,000. The jury awarded Therese $250,000 after concluding she was subjected to both negligent actions and intentional infliction of emotional harm.
Therese Bellissimo Benedict was pregnant with twins in 2003 when one fetus -- a boy the couple named Lourdes -- was stillborn. The couple hired JS Waterman & Sons, which was once family owned but had been purchased by Service Corporation International, based in Texas. The funeral home lost Lourdes's remains and ultimately concluded he may have been accidentally cremated with an elderly woman.
The couple said they each suffer equally and will suffer their loss for the rest of their lives. "It was never about the money,' Robert Benedict said. "It was about SCI and their treatment of us.'
Gordon T. Walker, the couple's Boston lawyer, said the ultimate cost to Service Corporation International is not yet final. He said the couple still has a pending claim that the company violated the state's consumer protection law, which could lead to a tripling of the damages, plus attorney's fees.
Kim Pineau, an official with the company who was involved in trying to discover what happened to Lourdes Benedict, spoke briefly following the verdict. "It was a very unfortunate incident and we have been, and remain, very sorry,' she said. "Out of respect for the family, I will have no further comment.'
Jury finds surgeon negligent, awards $14.5 in malpractice case
The Associated Press
LOWELL, Mass.— A jury has awarded $14.5 million to the family of a 30-year-old Chelmsford woman who died one day after undergoing thyroid surgery at Brockton Hospital.
The lawyer for Shannyn MacPherson's husband said she developed uncontrolled bleeding that resulted from air trapped in her abdomen.
Attorney Robert Higgins said the Superior Court jury found the lead surgeon, Dr. John Ambrosino, negligent and responsible for MacPherson's death in May 2001. A second surgeon, Dr. Julie White, was also found negligent, but not responsible for the death.
Abrosino's lawyer, Martin Foster, would not comment on Monday's verdict or say whether his client planned to appeal.
Higgins said the verdict was "bittersweet" for MacPherson's husband, Brad.
A Marion County jury has awarded a Westfield woman and her daughter a $3.7 million judgment in a malpractice case arising from the girl's troubled birth.
Law limits damages
Indiana law limits medical malpractice damages on each claim of injury or death to $1.25 million. The doctor or hospital at fault pays the first $250,000, and the Indiana Patients' Compensation Fund covers the rest, up to the limit. That means a jury's award of $3.7 million to Robin Lynch and her daughter, Shelby, on three claims will be cut to $1.95 million, according to their attorney, Mike Miller.
The jury's judgments, with any reductions:
$3 million: Against Dr. Sally Bradley for Shelby Lynch. Reduced to $1.25 million.
$500,000: Against St. Vincent Hospital for Robin Lynch.
$200,000: Against Bradley for Robin Lynch.
Source: Indiana Code 34-18-14-3
Robin Lynch's lawsuit argued that her daughter, 6-year-old Shelby, will live with cerebral palsy the rest of her life because of delays in the delivery that deprived her brain of oxygen. She was born via C-section in October 2001 in St. Vincent Hospital on Indianapolis' Far Northside.
Indiana limits medical malpractice awards, so the judgment on the three claims will be reduced to just under $2 million, said Mike Miller, the family's attorney. Most will be paid by the Indiana Patient's Compensation Fund.
But he hailed the Marion Circuit Court jury's verdict on Monday, one of the largest in recent memory in Central Indiana. Dr. Sally Bradley was assigned the bulk of the damages, with a $500,000 judgment against the hospital.
Earlier, a state medical review panel had issued an advisory finding of no malpractice on two of the three claims.
"We are very gratified that the jury decided not to follow the panel's opinion," Miller said Wednesday night.
Lynch is the principal of Oak Trace Elementary in Westfield.
A summary issued by Miller's firm said Shelby began showing signs of fetal distress while her mother, who was bleeding, waited for a C-section to be performed. The girl didn't start breathing until 12 minutes after her birth. Robin Lynch also developed a life-threatening bleeding disorder.
Three days later, Lynch went back into surgery for removal of a sponge left behind during the C-section. Miller said the review panel -- made up of physicians -- did rule in her favor on that claim.
During a five-day trial that began last week, Miller asked the jury to hold Bradley liable for the complications during labor and delivery and the hospital liable for the sponge mistake.
Bradley, who is affiliated with Women's Health Partnership, could not be reached for comment late Wednesday.
St. Vincent Health spokesman Johnny Smith Jr. issued a statement:
"Our sympathies are with the family who had to endure this regrettable situation. Since this incident occurred, we have implemented various initiatives and policies to improve patient care and standardized our patient safety efforts.
"Our priorities will be to continue to identify opportunities to enhance our quality of care such as partnering with local and national organizations to share best practices around patient safety."
To cut their malpractice risks, some urologists have been limiting their practices or referring their most difficult cases. Now, a new study finds those strategies are useless against one of the most common risks: missed or delayed diagnoses. A survey of 469 successful lawsuits against New Yorkurologists found 15% were based on alleged missed diagnoses. Many of those claims had nothing to do with urology.
“Historically, urologists have associated high malpractice risk with complex cases and in-hospital care,” the researchers wrote in The Journal of Urology(2007;178:2537-2539). “However, evolving data indicate that office-based urologists may incur significant diagnostic malpractice risk.”
Led by William J. Badger, MD, a team from Albany Medical College looked at records spanning 20 years from Medical Liability Mutual Insurance Company of New York State. The largest malpractice underwriter in New York, it insures about 400 of the state's 1,100 urologists.
A federal jury delivered a $ 2. 75 million verdict Monday against pharmaceutical companies Wyeth and Pharmacia & Upjohn, now a division of Pfizer Inc., after finding that a Little Rock woman’s breast cancer was caused by taking a combination of estrogen and progestin drugs made by the companies to treat her menopausal symptoms.
U. S. District Judge Bill Wilson Jr., who presided over the trial that began Feb. 4 in his Little Rock courtroom, ordered the jury to return next Monday to begin the trial’s second phase, in which plaintiff Donna Scroggin, 66, will seek punitive damages.
A gag order that Wilson imposed on all parties prevented Scroggin or attorneys on either side from commenting after the verdict, which was delivered early Monday afternoon. The seven-man, five-woman jury spent an entire day deliberating on Friday and then adjourned for the weekend, resuming again at 9 a.m. Monday for another half-day.
The compensatory-damages award represented the opposite outcome of two previous trials in Wilson’s courtroom against Wyeth.
The first of those trials, which was also the first hormone-therapy lawsuit in the country to go to trial, resulted in a finding for Wyeth in September 2006. In that case, a jury that dwindled down to 10 people — eight women and two men — rejected claims of plaintiff Linda Reeves, then 67, of Benton that more than eight years of taking the company’s estrogen and progestin drugs to ease menopausal symptoms and prevent osteoporosis caused her to develop breast cancer, for which she underwent a mastectomy.
A second jury trial held in Little Rock ended on Feb. 15, 2007, with a jury of nine women and three men finding in favor of Wyeth and against Helene Rush, then 72, of Little Rock. Rush began taking the hormone combination at age 55, also to ease menopausal symptoms, and was diagnosed with breast cancer 10 years later, causing her to have a lump removed from her right breast.
Scroggin was 59 when she was first diagnosed with breast cancer. She had been on hormone therapy for 11 years, starting with Upjohn’s Provera, a progestin drug, in combination with Wyeth’s Premarin, an estrogen-only drug, and later switching to Wyeth’s combination estrogen-progestin pill, Prempro. She underwent a double mastectomy.
Upjohn merged in 1995 with Pharmacia, becoming known as Pharmacia & Upjohn Co. In 2003, the merged company became a division of Pfizer Inc.
Wyeth spokesman Doug Petkus said Monday from his New Jersey office, “We are unable to provide comment at this time because the proceedings have not yet reached a conclusion.” Pf izer spokesman Chris Loder said from the company’s New York City offices, “A court order prevents any of the parties, including Pfizer’s Upjohn unit, from commenting on the Scroggin verdict.” Petkus said Monday that six cases against Wyeth that have gone to trial in various parts of the country, excluding the Scroggin case.
While the two previous federal juries in Little Rock found for Wyeth, three state-court juries in Philadelphia found for the plaintiff and another state-court jury in Reno, Nev., found for the three joint plaintiffs.
However, two of the Philadelphia jury awards were thrown out by judges, and a new trial was ordered in the third Philadelphia case. The plaintiffs are appealing that order.
Then just last week, a judge reduced the plaintiff’s verdict in Reno from $ 134. 5 million to $ 57. 6 million. The company had asked the judge to reduce the award for three Nevada women to less than $ 10 million.
Thousands of cases are still pending in federal and state courts across the country, including additional cases to be tried in Little Rock.
In Scroggin’s trial, Wyeth attorneys argued that she had a strong history of breast cancer on both sides of her family, with seven breast cancers found in five women in three consecutive generations, which made it all but certain that she would have developed breast cancer whether she took the hormone drugs or not.
Scroggin’s attorney, James Morris of Austin, Texas, disputed that assertion, saying that the type of cancer that Scroggin had wasn’t genetic in nature. He noted that her cancer cells were hormone-receptor positive, meaning that the infusion of hormones on top of otherwise-dormant cancer cells is what caused the cancer to sprout and invade surrounding tissue.
A link between the hormone combination and breast cancer was discovered in July 2002, when a large government study known as the Women’s Health Initiative was stopped abruptly after 4 1 / 2 years when researchers noticed a 24 percent higher incidence of invasive breast cancer among women who took the hormones.
Until 1996, when the two hormones were combined in one pill, Prempro, some menopausal women used the estrogen drug, Premarin, in conjunction with Provera, which supplied progestin, to relieve symptoms such as hot flashes and night sweats. Doctors had years earlier begun prescribing progestin along with estrogen after the use of estrogen alone had been linked to endometrial cancer. Studies showed that the incidence of endometrial cancer, or cancer in the lining of the uterus, was greatly reduced with the addition of progestin.
According to Bloomberg News, Scroggin’s claims are only the second to go to trial against Upjohn. Bloomberg reported that in the first case, in Philadelphia, the jury found for the plaintiff and awarded $ 1. 5 million, but a judge later threw out that award as well.
The drugs all remain on the market with FDA approval, although doctors now sometimes prescribe them in smaller doses and for a shorter time.
When Patsy Bates began her battle against breast cancer, she didn't expect she would also have to battle her health insurer too.
Bates faced the bureaucratic diagnosis of rescission: when a health insurer retroactively cancels your insurance policy. But in a precedent-setting decision announced last week, a California judge ordered Bates' insurer to pay her more than $9 million for dropping her policy after it learned she had cancer.
When Bates, a 52-year-old hairdresser, found out she had breast cancer in 2004 she thought she had reliable health insurance.
But her insurer, Health Net, dropped her coverage while she was in the middle of breast cancer chemotherapy, leaving Bates with $129,000 dollars in unpaid medical bills and no choice but to abandon her lifesaving treatment.
Bates said she had undergone surgery to remove a tumor and had received her first two chemotherapy treatments when doctors stopped treating her because her bills were going unpaid.
"I was devastated. I didn't know what was going to happen," Bates said. "It's boggling that someone can do that to you."
"I have breast cancer and I need my insurance and these people walk away from me," she said. "I was traumatized. Who wouldn't be?"
Angry and sick, Bates sued her insurer. And now, four years later, she has won a significant victory.
Not only did she receive a $9 million punitive damages settlement against Health Net Inc., one of the largest for-profit insurers in California, but the company also announced Friday that it had stopped the controversial practice of canceling sick policyholders' policies.
In the landmark ruling, the outraged judge wrote: "She had valid health insurance … when the rug was pulled from underneath, and that occurred at a time when she is diagnosed with breast cancer, one of the leading causes of death for women."
William Shernoff, Bates' attorney, said, "People count on health insurance when they get sick and if the rug is pulled from them, that's probably just as bad as not having insurance at all."
Health Net said Bates had made mistakes on her insurance application, citing a weight discrepancy and a heart condition. But after the ruling Health Net, which made more than $2 billion in gross profit last year, said in a statement that it planned to immediately stop rescinding policies without an independent third-party review.
"They have to change because people are dying," Bates said. "It's just not my face here, there are a bunch of people that have so much hurt over this."
There is also much money at stake for insurance companies. During arbitration, Bates' attorneys produced internal company documents that showed that Health Net was rewarding employees with bonuses based on the number of cancellations they got.
Employees were asked to meet cancellation quotas and were also rewarded based on the amount of money they saved the company. Bates' lawyers argued that Health Net had saved more than $35 million by rescinding policyholders between 2002 and 2006.
Bates completed her cancer treatment through a state-funded program.
When Melodie Simon prepared to undergo routine back surgery to replace screws holding a fused lumbar disc together, the former Olympian never expected she would be bound to a wheelchair for the rest of her life.
On Thursday, Simon was lifted out of her wheelchair and onto the witness stand to testify about the tragic surgery and the lawyer who prosecutors allege cut deals that kept him from suing the surgeons who performed the 2000 operation and held secret meetings that cheated Simon out of larger settlements.
"My legs just buckled underneath me; they just gave out," Simon told jurors softly, recalling her first attempt to walk just days after the Aug. 2, 2000, procedure. "I was in tears and quite in a panic."
Simon, a 41-year-old mother at the time, hired personal injury attorney Noel Gage to find out what went wrong after spinal surgeons John Thalgott and Mark Kabins tried to fix her nagging disc.
"She went to Mr. Gage and said, 'If you are going to be my attorney, I want you to tell me what really happened. I want you to be honest with me. I want you to treat me as your sister,'" Assistant U.S. Attorney Daniel Schiess told jurors during his opening statements in the government's case against Gage.
"Mr. Gage looked her in the face and said, 'Call me your brother,'" Schiess said.
But the government said Gage failed to fulfill his duty to provide honest services and committed fraud when he was offered a deal by self-proclaimed medical consultant Howard Awand.
The government alleges Awand worked with Thalgott and Kabins and offered to refer lucrative cases to Gage if the attorney backed off his doctor friends.
That is when Gage became involved in a web of Las Vegas doctors and lawyers who worked with Awand to jack up medical costs, to protect physicians from being sued for medical malpractice and to share kickbacks to make millions of dollars, the government alleges.
Schiess told jurors that three days after Awand sent Gage a case that ultimately settled for $18 million, Gage turned his focus on the Simon tragedy from the surgeons to anesthesiologist Dan Burkhead.
"Mr. Gage looked at the case and realized that the case was worth millions," Schiess said. "Millions to the family and millions to the attorney."
Schiess said Gage agreed to share his 40 percent of the settlement with Awand, an ethics violation for lawyers.
Gage successfully sued Burkhead and Sunrise Hospital and Medical Center, where the surgery was performed. Simon received a $2.3 million settlement.
After attorney fees and costs, Simon received $1.3 million, which she testified will never cover the costs of her medical needs.
Gage's attorney, Thomas Pitaro, disputed the government's allegations Thursday and described his client as "a skilled, knowledgeable and dedicated attorney."
Pitaro said personal injury attorneys lose nine out of 10 medical malpractice cases against doctors. And instead of receiving no settlement, Gage went after the more vulnerable Burkhead and was awarded the limit under insurance policies. Gage crafted a successful strategy to persuade the surgeons to testify against Burkhead, strengthening his case, he said.
Pitaro said Burkhead was responsible for puncturing a sac protecting Simon's spine. Extensive internal bleeding caused the nerves to push up against the spine and turned the one-time Olympic volleyball player into a paraplegic.
But Thalgott testified he thought there was a strong case against the surgeons because Kabins waited 11 hours to perform emergency surgery when it was known that internal bleeding was causing Simon's paralysis.
Thalgott, who was on a fishing expedition in Idaho when the first signs of paralysis struck Simon, said his fear was that a medical malpractice lawsuit was imminent.
"The moment I heard there was weakness (in Simon's legs), I was terribly afraid I would be sued," Thalgott said.
He described a well-calculated scheme to protect himself and Kabins from being sued. Thalgott, whose liability insurance tops out at $3 million per occurrence, said Gage took part in a secret meeting to discuss the plan.
"We are going to have a meeting that never happened," Thalgott quoted Gage as saying.
During the private, 10-minute meeting, the four agreed to blame Burkhead, he said.
The government alleges that Gage went forward with a deposition but never asked any questions pertinent to Simon's care. He never asked why Kabins waited hours to perform emergency surgery or whether Thalgott ever called in to check on his patient, the government alleges.
Thalgott said Awand hired Las Vegas attorney Robert Eglet to represent the doctors during the deposition. He acknowledged that was the first time he did not have his own attorneys represent him during litigation.
Thalgott also acknowledged that though the deposition took place a year after the catastrophic surgery, he never looked at Simon's records or researched what might have caused the paralysis. He said he knew that Awand's friendship with Gage and Eglet was a positive sign.
"I thought a deal was going to be taken and we were not going to be sued," Thalgott said.
Thalgott, who approached the government in 2006 and is immune from prosecution, said he tailored his testimony during the deposition to place the blame on Burkhead.
Awand, who has been described as the ringleader in the scheme, is the only other player who has been charged in the case.
Thalgott said he first met Awand in the late 1990s when the consultant visited the business Thalgott shared with Kabins.
"He was in the office all the time with Dr. Kabins; routinely, daily, in and out constantly," Thalgott said.
Awand brought in boxes of patient files for Kabins, and the majority of the patients were involved in litigation, Thalgott said. The patients used medical liens rather than health insurance policies for medical treatment, he said.
He said that with liens, doctors receive 100 percent of the cost of care they provide; insurance companies reimburse about 10 percent of the cost.
Thalgott, who estimated he earned $2 million a year at the time, said Kabins earned 300 percent more than he did.
Thalgott is expected to return to the stand at 8 a.m. today, when he will be cross-examined by Gage's team.
Contact reporter Adrienne Packer at apacker@reviewjournal.com or (702) 384-8710.
A home owner is being threatened with legal action after a woman claimed she trapped her hand in his letterbox while delivering unwanted junk mail.
Joy Goodman, a cake decorator, is seeking damages for personal injury and loss of earnings, claiming the top of her right index finger was severed when she delivered the mail. She claims she needs compensation because she is now unable to carry out her intricate job.
But the home owner vowed to fight the case. Paul O'Brien, 44, a self-employed engineer from Leeds, said: "When I received a solicitor's letter I thought someone was having a laugh. I actually told them they had sent it early. April Fool's Day is still six weeks away.
"I just cannot believe someone who came on to my property uninvited, to put junk mail through my door that I didn't want, can now sue me because they hurt themselves."
He added: "There is nothing wrong with the letterbox. I haven't altered it or done anything to it. It's just like every other letterbox on this estate."
Mrs Goodman declined to comment, saying only: "It is in the hands of my solicitors."
A law expert said that householders had limited duties of care to people who went on to their property such as delivery people or postmen.
These duties of care include not having such things as bare electricity cables sticking out, but were not likely to extend to a letterbox providing it was a standard model.
If sophisticated sleaze were a felony, local spine surgeon John Thalgott might have testified Friday in U.S. District Court in a gaudy prison uniform instead of a neatly tailored suit.
But seeing as how the professional slime factor is an inherent part of the ongoing medical fraud trial of attorney Noel Gage, Thalgott's groomed appearance was the perfect touch. Where is Balzac when you need him to describe these paragons of virtue who are as treacherous as they are polished?
Thalgott is capable of admitting a lie without blinking an eye. He did just that under the nose of Senior U.S. District Judge Justin Quackenbush.
The studious Thalgott glibly acknowledged he threw colleagues under the bus in a medical malpractice case in order to avoid taking responsibility for his actions. Here is one of the upstanding men former Olympic volleyball player Melodie Simon entrusted with her back surgery care.
Here's a twist that casts even more doubt on the government's key witnesses.
Perhaps in an effort to appear less rapacious, sources say Thalgott through federal intermediaries last week offered Simon $1.5 million if she'd sign a document releasing him from further liability in the case. No word yet whether she accepted the offer. Made at such a late hour, the offer looks like blood money.
As for fellow ethically bankrupt physician Ben Venger, sources say he has agreed in principle to forfeit $3 million to the government in the case. Venger was granted immunity in 2005, and that makes this hurried move look like witness rehabilitation.
Will it work? It's hard to say.
Despite having his occasional lies and convenient memory lapses illuminated by defense attorney Tom Pitaro on Friday, overall I think Thalgott capably communicated to the jury the depth of shoddy behavior alleged by the prosecution.
In brief, Gage is accused of selling out his client by directing her malpractice case away from the deep pockets of physicians Thalgott and Mark Kabins to the expendable local anesthesiologist Dan Burkhead. According to the government's theory, following an off-the-record meeting "that never happened," fat medical malpractice cases were to flow Gage's way in exchange for protecting Thalgott and Kabins and sandbagging Simon.
The defense made a salient point when it argued Gage was wise to narrow his litigation in order to improve the long odds of his client prevailing, but it was clear from Thalgott's cross-examination that his confidant Kabins had a dirty hand in Simon's crippling. Her paralysis emanated from two areas of the spine, one of which was the site of Kabins' operation.
Instead of walking away, Simon is confined to a wheelchair and received just $1.3 million of her original share of a $2.3 million settlement after paying attorney fees and costs. Gage and self-styled medical consultant Howard Awand, the middleman in this sordid affair, scored big.
The fact trial lawyers make a bundle in medical malpractice cases isn't news. Nor is it a crime -- if Gage didn't sell out his client. But if the attorney wasn't candid with Simon, who entrusted her quality of life with him, then the prosecution might find the traction it needs to nail down a conviction.
That mystery meeting alone might not be enough to convince the jury of 69-year-old Gage's guilt, but even if he's acquitted he owes Simon a multimillion-dollar rebate.
The prosecution's problem is simple: Right now, Thalgott and Venger are the Sammy Gravanos of this case. Although using flawed witnesses is a reality in these cases, the physicians are the ones who took the Hippocratic oath. They lied, cheated, sold out their patients -- and received deals that will enable them to continue to practice medicine.
Although at present Awand is the only other player under indictment, the makeup of the courtroom gallery Friday makes me think other local doctors and lawyers are anticipating some bad news courtesy of the FBI and U.S. attorney. In one row sat attorneys Richard Wright, Charles Kelly, and Gary Logan. Nearby was lawyer John Spilotro. On the other side of the courtroom was the Monty Hall of this case, attorney George Kelesis, who represents the interests of Thalgott, Venger, lawyer Richard Harris, and others.
Who knows, maybe they came for the spectacle.
In a case with so much sophisticated sleaze, it's hard to look away.
John L. Smith's column appears Sunday, Tuesday, Wednesday and Friday. E-mail him at Smith@reviewjournal.com or call (702) 383-0295.
You go to the doctor, or maybe a physical therapist, and they apply a heating pad for treatment. If you are burned by the heating pad was there medical malpractice or simple negligence? That was the issue last week in Morales v Carcione, 2008 NY Slip Op 01513 before the Second Department.
The plaintiff claimed that she sustained burns from heating pads applied to her legs by technicians at the defendant Central Westchester Neuromuscular Care, P.C. where she was receiving treatment for neuropathy and other neuromuscular ailments. The defendant moved to dismiss the action because it was not commenced within the two years and six months medical malpractice statute of limitations of CPLR 214-a. The Supreme Court found that the plaintiff's action was timely because it was commenced with the the three-year statute of limitations period applicable to actions to recover damages for personal injuries CPLR 214(5).
However, the Second Department reversed finding that the action sounded in medical malpractice, and thus, should have been dismissed as untimely. The Court explained:
Conduct may be deemed malpractice, rather than negligence, when it constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician. When the duty arises from the physician-patient relationship or is substantially related to medical treatment, the breach gives rise to an action sounding in medical malpractice, not simple negligence (citations and quotes omitted).
Here, the incident which resulted in the alleged injuries to the plaintiff arose out of the physician-patient relationship and was substantially related to the rendering of medical treatment to combat her neuropathy and other neuromuscular ailments. Accordingly * * * as it sounds in medical malpractice, [the action] * * * is therefore subject to the limitations period of two years and six months.
LIAM Cregan, 46, the husband of an Irish woman who died after a face-lift in New York in 2005, has heard that his multimillion-dollar lawsuit against Dr. Michael Evan Sachs will take a step forward this week with a conference to set a trail date on Thursday, February 21.
Kay Cregan, 42, from Croom, Co. Limerick, died after a botched operation performed by Sachs at his Manhattan clinic on March 14, 2005. Shortly after the operation Cregan collapsed in a recovery room of Sachs’ Manhattan clinic and died on St. Patrick’s Day after she was transferred to nearby St. Luke’s Roosevelt Hospital.
Sachs has New York State’s worst malpractice record, having been involved in more than 30 malpractice cases since 1995. Agnes Kelly, sister of the late Cregan, told the press that she didn’t believe her sister would have chosen Sachs had she known how often he had been sued in the past.
Cregan, a senior executive with Limerick City Council, paid Sachs $32,000 for her operation.
Thomas Moore, an Irish American attorney who specializes in medical malpractice cases, is suing on behalf of Liam Cregan and his two young sons. Moore recently told the press, “We will be looking for quite a bit of money. We are talking in the millions of dollars at least. Parental loss to children is regarded in cases such as this as a very significant matter.”
In the lawsuit Cregan’s husband accused Sachs of negligence, carelessness and gross indifference. The suit also names Dr. Madhavrao Subbarao, an anesthesiologist, and claims that both doctors failed Cregan at every step of her procedure.
In 2005 Cregan had secretly arranged to travel to New York for a facelift after reading a report in an Irish Sunday newspaper about a Carlow woman who had attended Sachs’ clinic. Cregan had wanted to surprise her husband with the surgery, agreeing to pay Sachs $32,000 for the operation, which included her accommodation after the operation to recuperate.
Cregan underwent the operation on March 14, 2005, but suffered a heart attack while in a recovery room at Sachs’s clinic. Sachs has denied Cregan’s death was his fault. His lawyer, Jay Butterman, said she suffered from an undiagnosed irregular heartbeat.
However, New York’s medical examiner ruled in May 2005 that Cregan’s operation was partly to blame for her death, and said she had no pre-existing condition that could have played a role in her death.
A spokesperson for the medical examiner said Cregan had died from “therapeutic complications” and that the surgery to her face, nose, lips and eyebrows was “a contributory factor in her death.” Butterman disputed these findings and claimed Sachs had operated “perfectly.”
Before her death Cregan had lived in Croom with her husband, a farmer and plumber, and their two sons, Brian, who was eight at the time of her death, and Eoghan, who was six.
After the conference to set a trial date gets under way on February 21, a judge will be appointed and a jury of six will decide the case. Depending on the verdict, the jury will be asked about monetary damages for the loss, with no upward limit.
It’s understood the damages will be assessed based on the loss of a wife and mother of two young children, coupled with the pain and suffering Cregan endured before her death.
On Thursday in La Salle County Circuit Court, a jury decided Adam Porter should receive nearly $24 million from a doctor and nurse practitioner in a malpractice case.
The 34-year-old Streator man filed a lawsuit in May 2003 against Ephraim W. Batambuze, M.D., John E. Podzamsky, D.O., registered nurse anesthetist Linda Blair of A.T. Associates and nurse practitioner Patricia Duffield, as well as against Batambuze's practice, Prairie Cardiovascular Consultants.
Porter said he entered St. Mary's Hospital in Streator in November 2001 for surgery involving a kidneystone in his ureter. During surgery, he underwent cardiac arrest and the flow of oxygen to his brain was interrupted.
As a result of the oxygen interruption, Porter lost most of his fine motor skills and suffers from spastic movement, severe double vision and slow, slurred speech, making him difficult to understand, according to his attorney James Ginzkey, of Bloomington. However, Porter, who uses a wheelchair, can understand others. He is married and has two children. Before the surgery, Porter worked for a phone company.
The trial began Jan. 30 before Chief Judge James Lanuti. On Feb. 8, Batambuze and Blair settled with Porter for $1 million each. The trial continued and on Thursday, jurors ruled against Podzamsky and Duffield, saying Porter should be given $23,737,234.
Batambuze was represented by David Drake, of Springfield, and Blair by Gregory Cerullo, of Peoria. Podzamsky and Duffield were represented by Jeff Spears, of Rockford.
A video recording Ginzkey titled "A Day in the Life" was shown to jurors. The video had no sound, which was meant to make jurors concentrate on the images, Ginzkey noted. The video showed Porter's daily struggles, which Ginzkey believes was a major factor in winning over the jury.
"He tries hard to do things and has a sense of humor," Ginzkey observed. "I think the jury fell in love with him."
Is a Dentist's Testimony Regarding Routine Administration of an Anesthetic Admissible as Habit Evidence in a Malpractice Trial?
I've always enjoyed evidentiary issues and for that reason was excited to read a recent opinion by the New York Court of Appeals regarding the admission of habit evidence in a dental malpractice action.
In Rivera v Anilesh, 2007 NY Slip Op 05134, the plaintiff sued a number of people, including her dentist, alleging that a severe infection in her jaw originated with malpractice committed by her dentist while injecting a second round of anesthesia during the course of removing the plaintiff's tooth.
The defendant dentist moved for summary judgment, alleging that she had no recollection of the specific procedure at issue. As such, she relied upon her customary practice to establish that the treatment rendered to the plaintiff on the date of the alleged malpractice did not differ from her ordinary methods.
(She) state(d) that the administration of this type of injection was a "routine procedure[]" that she did "every day" to "at least three to four to five" patients and that she had been practicing as a dentist since 1982. Dr. Anilesh further explained that a second injection of anesthesia was required in 15% to 20% of her cases. She provided a step-by-step description of the procedure she used to give injections to her patients and claimed that, when a second injection was necessary, she administered it at the same site as the first injection. Dr. Anilesh noted that if a patient complained of unusual pain or any other unexpected events occurred during treatment, she would make a notation in the patient's medical chart but that no such note existed for Rivera. Dr. Anilesh's expert opined that Dr. Anilesh's treatment of Rivera was within the applicable standard of care in dentistry.
The Court explained the basis for the admission of habit evidence in New York:
"(E)vidence of habit has, since the days of the common-law reports, generally been admissible to prove conformity on specified occasions" because "one who has demonstrated a consistent response under given circumstances is more likely to repeat that response when the circumstances arise again." The applicability of this doctrine is limited to cases where the proof demonstrates "a deliberate and repetitive practice" by a person "in complete control of the circumstances" (id. at 392) as opposed to "conduct however frequent yet likely to vary from time to time depending upon the surrounding circumstances" (id. at 389). If these conditions are satisfied, "a party should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence . . . on a particular occasion"...
The Court then noted that the issue of habit evidence had been considered by it on only a few occasions, and never in a medical or dental malpractice context. The Court then concluded that the evidence was properly admitted in this case:
(T)he record here supports the admissibility of Dr. Anilesh's routine procedure for administering injections of anesthesia under the standard articulated in Halloran in light of the frequency that this technique was used in Dr. Anilesh's dental practice and the nature of the routine conduct...there is no evidence suggesting that Dr. Anilesh's pre-extraction injection procedure would vary from patient to patient depending on the particular medical circumstances or physical condition of the patient. This record therefore contains "proof of a deliberate and repetitive practice" — the mundane administration of a local anesthetic prior to a relatively routine tooth extraction — by a trained, experienced professional "in complete control of the circumstances"...
While I agree with the Court's decision to an extent, I am uncomfortable with the application of habit evidence under the facts of this case. It seems to me that this holding essentially encourages health care providers who frequently perform routine procedures to avoid documenting anything that occurs during a procedure that is somewhat out of the ordinary. That way, when called upon to testify regarding a frequently performed procedure, s/he can allege an inability to recall the specific procedure and then assert that the procedure in question must have been typical since the medical record indicates that nothing unusual occurred.
In a way, this decision seems to sanction convenient cases of amnesia when the underlying "forgotten" facts are the very heart of the malpractice claim. But, then again, I suppose it's ultimately within the province of the fact-finder to determine whether the alleged case of amnesia is actually believable.
Cell phone use in car leads to $5.2M payout International Paper settles suit brought by woman who said she lost her arm because of car accident caused by employee driving too fast and on phone By Janet L. Conley, Associate Editor
Talk isn't always cheap, as International Paper Co. learned recently when it agreed to pay $5.2 million to settle a personal injury suit related, at least in part, to one of its employees' use of a cell phone while driving.
According to the complaint, filed in Fulton County Superior Court in 2006, International Paper employee Vanessa C. McGrogan was using her company-supplied cell phone as she drove west on Interstate 16 near Dublin when she rear-ended a vehicle driven by Debra Ford. The collision pushed Ford's vehicle into the ditch on the right side of the road, overturning it so that the driver's side hit and then slid along the roadway—with Ford's arm trapped between the door and the asphalt.
Medical complications eventually forced Ford, a widowed mother of four, to have her arm amputated almost up to the shoulder.
“We have a cell phone statute in Georgia that says the driver is not to do things that are distracting,” said Ford's attorney, Katherine L. McArthur of The Law Firm of Kathy McArthur in Macon. McArthur explained that this essentially means reasonable cell phone use is acceptable within the purview of the statute. The International Paper employee's cell phone use was not reasonable, McArthur continued, because the employee had set her cruise control at 77 miles per hour—in a 70 mph speed zone.
The combination of those two factors, said McArthur, allowed her to raise the issue of intentional negligence on the part of the employee and International Paper and to seek punitive damages.
International Paper raised some affirmative defenses, McArthur said, alleging, among other things, that the loss of her client's arm was caused at least in part by the fact that she was a smoker, and that smoking had damaged her vascular system, thus impairing the healing process. Both Ford's doctor and another medical expert refuted that claim, saying Ford lost her arm because it was crushed in the accident, McArthur said.
Outside counsel for International Paper, C. Michael Evert Jr. and Christopher G. Conley of Evert Weathersby Houff, referred comment to Amy Sawyer, a spokeswoman for International Paper in Memphis, Tenn.
Sawyer, in an e-mail message, said only, “This was an unfortunate accident, which touched off a series of bizarre events that caused Ms. Ford's injuries. Given these circumstances, it was a very unique case.”
After a series of negotiations with a variety of outside counsel for International Paper—the company changed law firms three times, McArthur said—and an attempt at mediation, the parties agreed to settle for $5.2 million in mid-December. The case had been set for trial March 17.
Although International Paper filed a motion for partial summary judgment on the issue of punitive damages, the case settled before Judge Michael D. Johnson had ruled on that issue. “They didn't want to make bad law,” McArthur said of International Paper.
According to McArthur, the company made an early settlement offer of $750,000, and a mediator indicated International Paper would go as high as $2.5 million. McArthur, however, rejected the early settlement offer.
The employee's cell phone use had a “huge impact” on the final settlement amount, according to McArthur. That's true even though the exact timing of the employee's cell phone use was never determined.
International Paper contended that the employee was not actually on the phone at the moment the collision occurred, according to McArthur. The employee testified at deposition that she had used the cell phone just prior to getting on the interstate, and the accident occurred nearly two miles later. A witness, however, testified that he had seen her with the phone to her ear at the time of the collision.
“They were concerned the effect this would have on a jury, to know the driver was on a cell phone,” McArthur said of International Paper.
Juries have not reacted favorably to employers whose employee-drivers caused accidents while using a cell phone, according to McArthur.
In the text of a speech she gave during a Georgia Trial Lawyers Association seminar in Macon last week, McArthur cites several cases where employers had to pay up when their employees were involved in cell phone-related accidents.
In one case, she wrote, Dykes Industries of Little Rock, Ark., lost a $20.9 million personal injury suit in which its employee was using a cell phone when the accident occurred. In another case, the State of Hawaii agreed to pay $2.5 million as its share of liability in an accident involving a state employee who was allegedly talking on her cell phone when she hit a tourist.
Perhaps the classic example for lawyers involves attorney Jane Wagner of Cooley Godward. In 2000, according to McArthur's GTLA speech, Wagner was driving home from work and conducting a business call on her cell phone when she struck and killed a 15-year-old girl in Northern Virginia's Fairfax County. She did not stop her car, later saying she thought she had hit a deer.
According to Washington Post reports, Wagner later pleaded guilty to a hit-and-run and served one year in jail; a jury ordered her to pay more than $2 million in damages to the victim's family. Wagner's firm, Cooley Godward, settled for an undisclosed amount, according to the Post; the plaintiffs had initially sued for $30 million.
McArthur said she has seen studies showing that cell phone use while driving may actually cause drivers to exhibit greater impairments than those who are legally intoxicated. She also cited statistics from Human Factors, the journal of the Human Factors and Ergonomics Society, indicating that cell phone distraction causes 2,600 deaths and 300,000 injuries in the United States each year.
“Even knowing all this, I can't stop myself from talking on the cell phone while I drive, so it has to be made illegal,” said McArthur, whose GTLA presentation included the information that 15 states ban or restrict cell phone use by young drivers, and five states and the District of Columbia ban hand-held cell phone use while driving. She said she believes Georgia, too, eventually will alter its law relating to drivers' cell phone use.
“The driving force behind cell phone laws is not the deaths and injuries,” McArthur said. “It's the settlements and verdicts.”
Associate Editor Janet L. Conley can be reached at jconley@alm.com
Fla. surgeon stripped of license for lying during Michigan trial
February 12, 2008
By DAVID ASHENFELTER
FREE PRESS STAFF WRITER
A Florida vascular surgeon was stripped of his medical license today and sentenced to 30 days in a federal halfway house and one year of probation for lying while giving testimony as an expert witness in 2002.
Alex Zakharia, 68, a Miami-Dade County heart surgeon, received the sentence from U.S. District Judge Paul Borman.
Zakharia pleaded guilty last year to misdemeanor contempt of court after falsely testifying in a medical malpractice case involving the Veterans Administration in Ann Arbor. He testified that he had performed more than 100 coronary artery heart bypass grafts since 1995, which was untrue, authorities said.
The U.S. Attorney’s Office in Detroit represented the Veterans Administration in the medical malpractice case.
In case you're not sufficiently irked at the $8 million check Detroit wrote to make amends for the mayor's juvenile behavior, consider this:
Logic and lawyers suggest the payout would have ordinarily been maybe half that size.
The logic part of the equation was mine, but I didn't spend three extra years on campus learning to be analytical. To make sure I was reading the numbers correctly, I called Sam.
More precisely, I called on Sam, and I mostly talked to his sons. Sam's people can also help if you've encountered bad drivers, bad doctors, bad bosses, bad products or numerous other bad things. In my case -- not looking to pick a fight with Mayor Kwame Kilpatrick, but simply answering my question -- they confirmed what appears to be a bad deal, made in direct contradiction to the concept of a "settlement."
Backtracking briefly, a jury awarded $6.5 million in September to two former police officers who said they were fired for poking into the alleged shenanigans of the mayor's security team. That was the lawsuit in which the mayor and Christine Beatty, his chief of staff until last month, denied under oath the affair in which they had enthusiastically indulged in several time zones.
The mayor vowed to appeal. Instead, five weeks later, he announced that he was settling the police officers' suit for $8 million and paying $400,000 to dispense with a separate suit from a third officer.
The lawyers for the mayor and the first two officers agree that with interest, the meter on the jury verdict had hit $7.9 million. The city paid $100,000 more than that. But why wasn't the check written for $3 million, or $3.6 million, or $4 million and a set of Ginsu knives?
The answer is obvious. The mayor can go on the radio and claim the checks went out before he cut his secret agreement, but he was covering his tracks, and he leaves a very large footprint.
How settlements are made
A settlement is typically a midpoint. The jury awards $6.5 million. The winning lawyer tells his clients not to go boat-shopping just yet, because he knows what the losing lawyer is going to say: Accept $3 million, or we'll tangle this in appeals until the Lions win a Super Bowl.
The winners make a counter-offer. The lawyers call each other names for a while, then agree on a number. Rather than wait, or risk a reversal, the winners accept less than what the jury gave them.
Here, the city declined to exercise its only leverage. The winners received the original award, plus interest, plus a lovely parting gift of $100,000. The losers, building in an excuse but not explaining why, inserted language in the agreement that said the parties settled for significantly less than the payout might have been.
"It's very odd," says Mark Bernstein, "that you would settle for more than the jury award."
"I've never seen it happen," Richard says.
"Unless," Mark says, "there was new information that could come out in a subsequent proceeding."
Like, for instance, text messages that showed the mayor had lied about his affair and had probably fired a cop he denied sacking.
"They already had their money," the mayor told WMXD-FM (92.3), "when we signed the confidentiality agreement." The dates on the checks contradict him, and so does the dollar amount. Blowing $6.5 million in a cash-strapped city is bad enough. Blowing the city's only opportunity to cut its losses compounds the irritation.
The judicial climate in Michigan, Mark says, would have been balmy at the appellate level. Our Supreme Court sides almost universally with employers, as opposed to whistleblowers, and the lower court follows the varsity's lead.
"We are widely seen as a plaintiffs' graveyard," he says. Once you've won a judgment, you avoid an appeal as best you can.
It's a rare set of clients who get handed more than they won in the first place, but then, the mayor is a rare public figure. The only thing this mess has cost him is credibility, and he doesn't seem to put much value in that.
A jury ruled a city obstetrician must pay $38.5 million to the family of a baby born with cerebral palsy in what may be the state's largest medical malpractice award ever.
By Jim Kenyon Posted: Thursday, February 07, 2008 at 5:42 p.m.
OB-GYN's claim a medical malpractice crisis is looming in New York State that's so severe, it's driving doctors out of New York State.
"You're gonna see physicians leaving right and left." says Dr. Richard Waldman, Chairman of the OB-GYN Society.
Waldman says unless the State Legislature intervenes, on July first, the New York Insurance Department will impose a $50,000 dollar surcharge and 20 premium increase on every OB-GYN in the State. It's mean to bail out three major insurance carriers who face a $1.8 billion dollar deficit.
Waldman says it happened under the Pataki administration when the Legislature raided a malpractice insurance pool of 700-million dollars while denying incremental increases in premiums.
"They were actually bankrupting the insurance companies knowingly," says Waldman.
Waldman also blames lawyers and large malpractice awards for much of the problem, but a report by the Public Citizen calls this a "self inflicted crisis." It claims there now no litigation crisis, New York's government is primarily responsible, and there is actually an abundance of doctors.
On March 4th, Waldman will joins hundreds of physicians across the State for a march on Albany to bring attention to the malpractice insurance "crisis." Neither State Assemblyman Bill Magnarelli nor Senator John DeFrancisco could be reached for comment.
A Palisades graduate who was paralyzed in a 2004 car crash has won a $10.2 million verdict against the car maker, a local utility and the driver of the car.
Chelsea Pursell won the lawsuit with a judgment against Volkswagen, PPL and driver Kristofer Young after a jury trial wrapped up in Bucks County court last week.
It is believed to be one of the largest jury awards ever in Bucks.
“It’s got to be one of the top five that I’ve ever heard of, and I’ve been practicing for 25 years,” said Doylestown attorney Peter Hileman, one of Pursell’s lawyers. He successfully argued that the lap-style seat belt — one that doesn’t have a shoulder strap — the girl was wearing at the time of the crash fractured her spine and caused severe internal injuries, leaving her paralyzed and dependent on a wheelchair.
In all likelihood, though, it will be years before Pursell, who will be 20 next month, will see any of the money.
“Volkswagen will appeal, so it could be years before it’s all resolved,” Hileman said. “So just because you get a verdict doesn’t mean you get paid. But when she is, hopefully, this will be enough to take care of her for the rest of her life.”
David Richman, an attorney who represented Volkswagen in the case, confirmed that the company plans to appeal the verdict. He declined further comment.
On Thursday, Pursell said she was pleased with the verdict but disappointed that the legal battle will continue.
“Whether I see a penny of that or not, seeing justice was pretty beautiful,” she said. “I was looking for some kind of closure. I really wanted this to be the end of things.”
Pursell was 16 and a sophomore at Palisades High School when she was in a car crash on May 28, 2004.
She was with her boyfriend, her friend, her friend’s boyfriend and Kristofer Young, Hileman said. Young, who was then 18 and lived in Easton, was driving.
It was about 11:20 p.m. on a Friday night, and the five young people were driving south down Lehigh Street in Allentown, according to the police report from the incident. Young apparently lost control of the 1992 Volkswagen Jetta after it hit the curb on the right-hand side of the street. The car jumped the curb and hit a utility pole near the street, the report says.
Young apparently was thrown from the car — an off-duty officer found him in the street with blood on his face, according to the police report. The male front seat passenger was unconscious and trapped in the car, the officer wrote. A boy and two girls were in the backseat. The doors were jammed, and the officer couldn’t get into the car to help the young people out, the report says.
When the car hit the pole, Pursell was in the middle back seat, wearing a lap-style seat belt. Such belts are no longer included in vehicles because of accidents like Pursell’s.
Everyone in the car was hurt, including Pursell’s two friends, who were sitting on either side of her in the back seat. But none was injured as severely as Pursell, and none was left permanently disabled, as she was — because, Hileman successfully argued in court, none was wearing only a lap seat belt.
“She was the only one in the backseat wearing a seat belt. She was the only one who was permanently injured,” Hileman said. “She was wearing her seat belt, doing what she thought was smart and safe, and it was the seat belt that caused her injury.”
Pursell’s lap belt rode up from her pelvis to her abdomen as the force of the crash caused a “submarining” effect that pulled her down into the seat, Hileman said. The belt tore into her abdomen, ripping into her intestines, fracturing her spinal cord and causing other internal injuries. Hileman and fellow attorney Jeff Drake researched auto liability and found an Arizona lawyer, Larry Coben, who is an expert on vehicle crashworthiness. Coben helped prove that the lap belt caused Pursell’s devastating internal injuries.
“The thing about the rear seat belt is, the engineers figure not many people sit in the middle. It’s not used that much, so they didn’t care that much about it,” Hileman said.
Since Sept. 1, 2007, all new cars sold in the United States must have a combination lap and shoulder belt in all back seat positions, according to the National Highway Traffic Safety Administration.
Volkswagen brought PPL into the case when the company alleged, and the jury agreed, that PPL’s utility pole had been placed too close to the road. If it had been in the right spot, the accident could have been avoided, Volkswagen argued.
Hileman said the jury assigned 51 percent of the liability for the crash to Young, 39 percent to Volkswagen and 10 percent to PPL.
Pursell’s attorneys already had settled with PPL, so the utility cannot be held to pay its $1 million share of the verdict, Hileman said. He declined to name the amount of the prior settlement, but said “it was much less than $1 million.”
Ryan Hill, a spokesman for the Allentown-based PPL, said: “We know this has been a difficult time for Chelsea and the Pursell family.”
Young’s attorney, Gary Greminger, declined to comment. The Philadelphia attorney was hired for this case by Young’s car insurance company.
Young pleaded guilty in November 2004 to driving under the influence and a felony charge of DUI-related aggravated assault by motor vehicle, court records show. He served about a year in Lehigh County Prison. He was also ordered to pay $1,000 a year for four years to a fund for Pursell’s care.
Pursell was in and out of the hospital — but mostly in — for two years after the crash and endured numerous surgeries. Her medical care to date has cost about $5 million, Hileman said. Future costs are estimated at $2 million.
Most of her care was covered by health insurance, but the two insurance companies have liens in place to try to recover some of the costs, Hileman said.
Pursell’s last two years of high school were focused not on class work but on trying to survive, Hileman said.
“She had been a good student, but she basically was just coping with her injuries through the last two years of high school,” he said. “They worked with her, and she went to graduation, and it was a miracle.”
Today, Pursell lives pretty independently at home with her parents near Ottsville.
A video was shown in court depicting a day in her life, Hileman said — how she gets up, is able to shower and get dressed and get into her wheelchair, how she goes to the garage and gets her wheelchair into the car and drives to classes at Bucks County Community College.
As for her future plans, Pursell said she is still exploring her liberal arts education and hasn’t decided on a major. She likes to write and travel.
“I’d like to have a great job,” she said, “maybe something that combines those.”
A Palisades graduate who was paralyzed in a 2004 car crash has won a $10.2 million verdict against the car maker, a local utility and the driver of the car.
Chelsea Pursell won the lawsuit with a judgment against Volkswagen, PPL and driver Kristofer Young after a jury trial wrapped up in Bucks County court last week.
It is believed to be one of the largest jury awards ever in Bucks.
“It’s got to be one of the top five that I’ve ever heard of, and I’ve been practicing for 25 years,” said Doylestown attorney Peter Hileman, one of Pursell’s lawyers. He successfully argued that the lap-style seat belt — one that doesn’t have a shoulder strap — the girl was wearing at the time of the crash fractured her spine and caused severe internal injuries, leaving her paralyzed and dependent on a wheelchair.
In all likelihood, though, it will be years before Pursell, who will be 20 next month, will see any of the money.
“Volkswagen will appeal, so it could be years before it’s all resolved,” Hileman said. “So just because you get a verdict doesn’t mean you get paid. But when she is, hopefully, this will be enough to take care of her for the rest of her life.”
David Richman, an attorney who represented Volkswagen in the case, confirmed that the company plans to appeal the verdict. He declined further comment.
On Thursday, Pursell said she was pleased with the verdict but disappointed that the legal battle will continue.
“Whether I see a penny of that or not, seeing justice was pretty beautiful,” she said. “I was looking for some kind of closure. I really wanted this to be the end of things.”
Pursell was 16 and a sophomore at Palisades High School when she was in a car crash on May 28, 2004.
She was with her boyfriend, her friend, her friend’s boyfriend and Kristofer Young, Hileman said. Young, who was then 18 and lived in Easton, was driving.
It was about 11:20 p.m. on a Friday night, and the five young people were driving south down Lehigh Street in Allentown, according to the police report from the incident. Young apparently lost control of the 1992 Volkswagen Jetta after it hit the curb on the right-hand side of the street. The car jumped the curb and hit a utility pole near the street, the report says.
Young apparently was thrown from the car — an off-duty officer found him in the street with blood on his face, according to the police report. The male front seat passenger was unconscious and trapped in the car, the officer wrote. A boy and two girls were in the backseat. The doors were jammed, and the officer couldn’t get into the car to help the young people out, the report says.
When the car hit the pole, Pursell was in the middle back seat, wearing a lap-style seat belt. Such belts are no longer included in vehicles because of accidents like Pursell’s.
Everyone in the car was hurt, including Pursell’s two friends, who were sitting on either side of her in the back seat. But none was injured as severely as Pursell, and none was left permanently disabled, as she was — because, Hileman successfully argued in court, none was wearing only a lap seat belt.
“She was the only one in the backseat wearing a seat belt. She was the only one who was permanently injured,” Hileman said. “She was wearing her seat belt, doing what she thought was smart and safe, and it was the seat belt that caused her injury.”
Pursell’s lap belt rode up from her pelvis to her abdomen as the force of the crash caused a “submarining” effect that pulled her down into the seat, Hileman said. The belt tore into her abdomen, ripping into her intestines, fracturing her spinal cord and causing other internal injuries. Hileman and fellow attorney Jeff Drake researched auto liability and found an Arizona lawyer, Larry Coben, who is an expert on vehicle crashworthiness. Coben helped prove that the lap belt caused Pursell’s devastating internal injuries.
“The thing about the rear seat belt is, the engineers figure not many people sit in the middle. It’s not used that much, so they didn’t care that much about it,” Hileman said.
Since Sept. 1, 2007, all new cars sold in the United States must have a combination lap and shoulder belt in all back seat positions, according to the National Highway Traffic Safety Administration.
Volkswagen brought PPL into the case when the company alleged, and the jury agreed, that PPL’s utility pole had been placed too close to the road. If it had been in the right spot, the accident could have been avoided, Volkswagen argued.
Hileman said the jury assigned 51 percent of the liability for the crash to Young, 39 percent to Volkswagen and 10 percent to PPL.
Pursell’s attorneys already had settled with PPL, so the utility cannot be held to pay its $1 million share of the verdict, Hileman said. He declined to name the amount of the prior settlement, but said “it was much less than $1 million.”
Ryan Hill, a spokesman for the Allentown-based PPL, said: “We know this has been a difficult time for Chelsea and the Pursell family.”
Young’s attorney, Gary Greminger, declined to comment. The Philadelphia attorney was hired for this case by Young’s car insurance company.
Young pleaded guilty in November 2004 to driving under the influence and a felony charge of DUI-related aggravated assault by motor vehicle, court records show. He served about a year in Lehigh County Prison. He was also ordered to pay $1,000 a year for four years to a fund for Pursell’s care.
Pursell was in and out of the hospital — but mostly in — for two years after the crash and endured numerous surgeries. Her medical care to date has cost about $5 million, Hileman said. Future costs are estimated at $2 million.
Most of her care was covered by health insurance, but the two insurance companies have liens in place to try to recover some of the costs, Hileman said.
Pursell’s last two years of high school were focused not on class work but on trying to survive, Hileman said.
“She had been a good student, but she basically was just coping with her injuries through the last two years of high school,” he said. “They worked with her, and she went to graduation, and it was a miracle.”
Today, Pursell lives pretty independently at home with her parents near Ottsville.
A video was shown in court depicting a day in her life, Hileman said — how she gets up, is able to shower and get dressed and get into her wheelchair, how she goes to the garage and gets her wheelchair into the car and drives to classes at Bucks County Community College.
As for her future plans, Pursell said she is still exploring her liberal arts education and hasn’t decided on a major. She likes to write and travel.
“I’d like to have a great job,” she said, “maybe something that combines those.”
Good News For Malpractice Lawyers, Wal-Mart (WMT) Opens More Clinics
Wal-Mart (NYSE: WMT) likes the medical clinic business. Many of its customers do not have health insurance. It can deliver these people inexpensive care using nurse practitioners instead of doctors. Offering generic drugs also cuts costs to patients.
Wal-Mart plans to expand its clinic business into several hundred more stores. It will co-brand the operations with local hospitals and medical groups. That will most likely give the locations a greater air of legitimacy.
According to The New York Times “We have learned that people are willing to receive their health care from the front of a store or the back of a drugstore,” said Dr. John Agwunobi, a medical doctor who is a Wal-Mart senior vice president. The doctor must not be a trial lawyer.
Of course, it is fantastic that Wal-Mart can save people money on medical care, but such a large company makes a very nice target for people who feel that their visit was inadequate and that they were somehow harmed in the process of their time spent at the closest "super center".
Wal-Mart will serve tens of thousands of patients. It will need good malpractice insurance.
Texas jurors decide automaker owes victim, 41, for injuries sustained in 2004 Explorer rollover.
Margaret Cronin Fisk / Bloomberg News
Ford Motor Co., the second-largest U.S. automaker, must pay $6.5 million to a 41-year-old man left brain-damaged in a 2004 rollover accident involving an Explorer sport-utility vehicle, a Texas jury said.
Ruben Zamora lost control of the 1993 Explorer when a tire lost its tread and was ejected from the vehicle as it rolled over.
His mother, suing on his behalf, said the tread separation set off vibrations in the rear of the vehicle that made it skate sideways because of a defect in the SUV's suspension.
"The tires get to bouncing severely and the back end swings around," causing the driver to lose control of the vehicle, Zamora's attorney, Bill Neumann, said Monday in a phone interview.
"They've known about the problem for years and failed to fix it."
A state court jury in Cotulla, Texas, found the Explorer defective and awarded $10 million on Feb. 1.
The jury found that Zamora was 35 percent responsible for the accident, leaving a verdict of $6.5 million against Ford, Neumann said.
Ford will appeal, a Ford spokeswoman, Marcey Evans, said Monday in a phone interview.
"It is unfair to blame Ford for this tragic accident or for Mr. Zamora's injuries, which were caused by not being belted properly while losing control of his vehicle," Evans said.
"We think the verdict isn't supported by the evidence," Evans said.
The verdict will be further reduced "substantially" because of a prior settlement with a co-defendant, Evans said.
Lifetime care needed for victim
Zamora, a disabled oil field worker before the accident, was injured in August 2004 while driving in south Texas, near San Antonio. Zamora, who sustained severe brain damage, "will need someone to take care of him for the rest of his life," Neumann said.
Zamora had been using the shoulder portion of the seat belt, which had been modified by a previous owner of the Explorer, his lawyer said.
Ford sold 137,817 Explorers last year, a 23 percent decline from 2006. Ford sold more than 400,000 Explorers in 2002.
Honda Motor Co.'s smaller CR-V surpassed Explorer in 2007 as the top-selling sport utility vehicle.
Catherine O'Donnell, was a lifelong Dorchester resident.
Email|Print| Text size –+By Jonathan Saltzman Globe Staff / January 29, 2008
Moments after undergoing surgery to replace a broken hip, an 86-year-old Dorchester woman fell from an operating room table at Boston Medical Center, causing a massive head injury that killed her a week later, her family said in a lawsuit filed yesterday.
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Catherine O'Donnell fell, buttocks first, through a gap in an orthopedic surgical table on Oct. 6 after a nurse removed a safety strap around her torso as medical staff prepared to transfer her to a hospital bed, according to an investigative report by the state Department of Public Health.
O'Donnell, who was still under anesthesia and had a breathing tube in her mouth, struck her head on the floor, fracturing her skull and causing internal bleeding, said the Health Department report. She died Oct. 13 despite a second operation that removed part of her skull to relieve pressure from the bleeding.
"Obviously, everyone has to go, but for her to go in this manner and for us to have to make those decisions for the family is terrible," said her son, Tom O'Donnell, who reluctantly decided with his two sisters to remove their mother from life support after doctors told them her prospects were grim. "We want assurances that you can go into that hospital and not have this happen to someone else."
The wrongful-death suit filed in Suffolk Superior Court names four defendants who were allegedly in the operating room at the time: Dr. Carlos Guzman, an anesthesiology resident; Dr. John Pryor, an orthopedic resident; and two nurses, Harvinder Miller and Ingrid Rush.
Ellen Berlin, a spokeswoman for Boston Medical Center, said the hospital extended its sympathy to the O'Donnell family. She said the medical center had changed procedures to prevent similar accidents from happening, but declined to be more specific.
"We regret that this tragic accident occurred and are sorry for the pain it has caused the O'Donnell family," Berlin said.
Paul Dreyer, director of the Health Department's Bureau of Heath Care Safety and Quality, said he reviews about 800 serious injuries and medical errors involving patients at 90 Massachusetts hospitals a year. About 400 to 500 involve patients hurt in falls. He had no figures on falls from surgical tables, but said it was unusual.
O'Donnell, a lifelong resident of Dorchester who loved to bake for her grandchildren, broke her left hip after she fell near her bed in her first-floor apartment, said her son.
The woman, who stood 5 feet tall and weighed 123 pounds, underwent surgery to repair the hip at Boston Medical Center in the early afternoon of Oct. 6, her son said. Tom O'Donnell said he spoke with her in the hospital shortly before surgery and kissed her goodbye, never thinking it would be the last time he would talk with her.
She was placed on a special surgical table designed for such procedures, according to the Health Department investigators who interviewed hospital staff in November. The table features special boots to immobilize patients' feet and a large opening near the base of their torso that enables doctors to take X-rays easily.
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The surgery was uneventful, said the Health Department report, provided to the Globe by the O'Donnell family's lawyer, Andrew C. Meyer Jr. What happened next was extraordinary.
The medical staff removed O'Donnell's feet from the boots, bandaged her wound, and changed her gown, the report said. A nurse identified by Meyer as Miller removed the safety strap around O'Donnell's torso and walked toward the patient's left side, so a bed could be placed on the right side and the patient could be transferred.
As the nurse began walking, "she looked at the patient and saw (with horror) that she was falling from the table, buttocks first, through the opening between the torso and the lower leg table sections," said the report.
The nurse told investigators that she lunged toward O'Donnell, but that the patient fell through the gap and struck her head on the floor.
Guzman, the anesthesia resident, told investigators that he was at the head of the surgical table when he heard the blood pressure cuff begin to deflate, said the report. He looked up at the blood pressure monitor and then glanced down in shock to see O'Donnell fall.
The investigative report said the hospital did its own "root cause analysis" and determined that the doctors and nurses in the operating room were preoccupied with their own tasks and that the "removal of the . . . safety belt from the patient was not verbally communicated."
The hospital has adopted a protocol requiring all nurses and doctors put their hands on the patient before removing the safety belt and making sure that there are people on both sides of the table.
Hours after O'Donnell fell, she underwent surgery to relieve the pressure of the bleeding. But Tom O'Donnell said she never regained consciousness.
Meyer, who has been a medical malpractice lawyer for 30 years and has won some of the state's biggest judgments in such suits, said he has never encountered a case of a patient dying as a result of a fall from an operating table.
"This is a case involving clear neglect with a horrifying outcome," he said.
Malpractice costs have docs seeking shelter elsewhere
By Alison Snyder
Friday, January 25, 2008
The high cost of medical malpractice insurance has some obstetrician/gynecologists cutting back on the scope of their business, while others are fleeing New York altogether.
And Long Island hospitals are worried that the price of malpractice insurance will lead to a health-care access crisis for pregnant women and for lower-income patients.
Donn Haber, vice president for risk management at the North Shore-Long Island Jewish Health System, said all hospitals, including those in his network, are affected by doctors moving out of state, dropping hours or slicing back parts of their practice.
Already arguing they’re choked by high insurance costs, doctors were drilled again last July, when, with the approval of State Insurance Superintendent Eric Dinallo, New York upped medical malpractice insurance by 14 percent. In 2007, ob/gyns paid the fourth-highest amount for medical malpractice insurance in the nation, according to the Medical Liability Monitor. Suffolk and Nassau ob/gyns that participate in the Medical Liability Mutual Insurance Co. pay a starting rate of $177,880. About 60 percent of ob/gyns here are part of Medical Liability Mutual.
And it could get more expensive.
Dinallo recently put together the Medical Malpractice Liability task force to address the mounting insurance costs – and the group is slated to make recommendations in the coming months. Though further details are sketchy, many doctors aren’t expecting much relief.
Martin Matalon, an ob/gyn practicing in Bay Shore, decided to cut back on his practice after the 2007 rate increase. He no longer performs major surgeries and doesn’t see patients past a certain stage in their pregnancies in an effort to curb malpractice insurance costs. He said he’s not alone.
Matalon conducted his own survey of private ob/gyns affiliated with Southside Hospital in Bay Shore and Good Samaritan Hospital in West Islip and he said he found four physicians had moved off Long Island, one had retired, and nine ob/gyns either had discontinued or had cut back on practicing obstetrics. Fifteen physicians had taken a position in a clinic to supplement their private-practice income. The reason? To help pay for malpractice insurance.
Salvatore Leo, division director of obstetrics at Good Samaritan, said we’re only seeing the “tip of the iceberg.”
A survey sponsored by the Medical Society of the State of New York conducted after the rate increase indicated that 50 percent of physicians said they were seriously considering leaving the state to practice elsewhere. Fifty percent said they had trouble paying for medical malpractice insurance and 21 percent said more than 30 percent of their overhead went toward paying it.
While Matalon said physicians will wait to act until the Medical Malpractice Liability task force gives its recommendations, Matalon said he doesn’t “expect anything much to come out of it.”
Matalon is taking a wait-and-see approach, but he realizes another increase is possible. And if the increase is in the double digits, the physician of 35 years said he would drop obstetrics altogether.
That’s one reason why State Sen. Kemp Hannon, R-Garden City, the chair of the senate Standing Committee on Health, said he is fighting for health-care reform that includes relief for overburdened doctors. But he is concerned many doctors have given up on the system and will cut back - or go away - without a fight.
“I’m scared that we’re just going to have people simply stop practicing,” he said. “It has been noticeable that the physician community has been quiet – it hasn’t spoken up, and I tend to think there’s too many people planning, saying ‘you know, four more years and my kids are out of high school, and I’m going to move.’”
But Joseph Awad, immediate past president of the New York State Trial Lawyers Association and head of its medical malpractice committee, said doctors have no one to blame but themselves for their predicament.
Awad said high malpractice insurance rates are caused by a refusal of doctors to police themselves – and allowing a select few to raise rates for the rest.
He argues there are more obstetricians per capita on Long Island than there were five or 10 years ago.
“We have no tolerance for those scare tactics,” he said, adding the data disproves it. Awad’s protests aside, the medical community’s prepared to pack its bags.
And as J. Gerald Quirk, chair of the department of obstetrics and gynecology at Stony Brook Medical Center, points out, the biggest losers in this will be patients – especially “the medically underserved.”
FRESNO, Calif. (AP) — An appeals court overturned a $1.5 million verdict awarded to a woman who was spanked in front of co-workers in what her employer called a camaraderie-building exercise.
A jury in 2006 had ruled that Janet Orlando had suffered sexual harassment and sexual battery when she was paddled at home security company Alarm One Inc. The jury punished the company with a $1 million punitive damage award.
But on Monday, a three-judge panel of the state Court of Appeal overturned that verdict, ruling that the jury had been given improper instructions. In particular, the jury wasn't instructed that one vital element of proving that sexual harassment occurred is showing the action was directed at a woman because of her gender.
Lawyers for Alarm One, an Anaheim-based, 300-employee company, said that the spankings were not discriminatory because they were given to both male and female workers and that Orlando and others willingly took part.
Orlando's attorney, Nicholas "Butch" Wagner, vowed to take the case to trial again.
"We may get more this time," Wagner said.
But K. Poncho Baker, the attorney who defended the company at trial in 2006, said that because the company has since gone into bankruptcy and its insurance was exhausted battling Orlando's claim and settling with three other co-workers, there may be little left to recover.
"Good luck retrying this one," Baker said.
Orlando quit the company in 2004, less than a year after she was hired at the Fresno office, saying she was humiliated during the company's team-building practices.
Employees were paddled with rival companies' yard signs as part of a contest that pitted sales teams against one another. The winners poked fun at the losers, throwing pies at them, feeding them baby food, making them wear diapers and swatting their buttocks.
By E.B. SOLOMONT Staff Reporter of the Sun January 16, 2008
The rate of babies delivered by cesarean section in New York City increased to 30.6%, in 2006, up from 29.7% in 2005, in a trend that some politicians, doctors, and women's health advocates say is cause for concern.
The citywide increase reflects a national upward trend in the number of cesarean deliveries in recent years. Last month, the Centers for Disease Control and Prevention reported that the national cesarean rate in 2006 reached a record high, 31.1%, according to its preliminary birth data for that year.
"There is alarming concern throughout the country that there are too many cesarean sections," said Public Advocate Betsy Gotbaum, who in 2006 released a report based on 2005 data detailing individual hospitals' cesarean section rates. "It's additional cost and it's additional risk," Ms. Gotbaum said, adding, "I hate to impart motives on hospitals and doctors … I can just tell you the numbers speak for themselves."
"It's clearly been rising," the head of obstetrics at Brooklyn's Lutheran Medical Center, Dr. Iffath Hoskins, said. "On a day-to-day basis, there will be three or four cesareans going on at a given time," she said, estimating that one in three deliveries at Lutheran results in a cesarean.
A sampling by The New York Sun of New York City hospitals shows there are still disparities in cesarean rates among individual hospitals. At St. Luke's-Roosevelt Hospital, the rate in 2006 was 26%, up from 25% in 2005. At NYU Medical Center, the rate was 31% in 2006, down from 32% the year before.
NewYork-Presbyterian Hospital reported a 35.4% cesarean rate in 2007 for its three campuses, down from 37.1% in 2005.
North Central Bronx Hospital had one of the lowest cesarean section rates, nearly 20%, in 2007, up from 17.3% in 2005. In large part, the relatively low rate is a result of the hospital's reliance on midwives and the medical staff's preference for vaginal deliveries, the hospital said. "If there are any complications with the baby, a cesarean section is performed without hesitation," the hospital's director of midwifery, Susan Papera, stressed.
To some, cesarean sections are a revenue stream for hospitals.
According to the most recent costs available from the group Childbirth Connection, the average charge for a cesarean section delivery in a hospital is $12,578. The charge for a vaginal delivery is $6,724.
"It's more costly for the hospital because you need anesthesia, you need more nursing, the patient stays extra days," Dr. Hoskins, said. "It's far more labor intensive and financially expensive if a woman has a cesarean."
Individual doctors said they are not making more money when they perform cesarean sections. "If anything, I want to get paid more for a normal delivery. It takes much longer. For me, it's much more stressful to attend labor than to do a cesarean section," the director of labor and delivery at NewYork-Presbyterian Hospital/Weill Cornell Medical Center, Dr. Amos Grunebaum, said.
The overall increase in cesareans has also been triggered by the changing perception of cesareans among women.
"There's such a relaxed attitude about induction and c-sections that it's not considered risky anymore," the president of the group Choices in Childbirth, Elan McAllister, said.
She said women were getting a message from their peers and from their doctors that vaginal delivery is dangerous, while cesareans are more civilized. "A lot of women today are career women who are used to being in control, so the idea of being able to micromanage their birth is appealing," she said.
Some doctors warned that such an attitude and the simultaneous rise in cesarean rates presented a health risk for women.
Some say it's not the women choosing caesarians but doctors aiming to avoid complicated childbirths and possible malpractice lawsuits. "Obstetricians fear malpractice litigation," the acting chairman of obstetrics at North Central Bronx Hospital, Dr. Wayne Cohen, said.
Even as the number of cesarean sections is up, some women's groups are promoting "natural" childbirth as an alternative. Last week, a documentary directed by Abby Epstein and produced by former talk show host Ricki Lake called "The Business of Being Born" opened at the IFC Center.
The executive director of Friends of the Birth Center, the group behind a proposal to open a new $7 million birthing center in Manhattan, is Rebecca Benghiat. So far, the group, whose plan is still in its nascent stages, has secured a 7,000 square foot space on West 30th Street. "Even if you don't know what the rate should be, you know what's going on is too high. People's sense is that it's not right," Ms. Benghiat said.
Looking forward, the rising cesarean rates may also create a shortage of facility space.
The average length of stay after a cesarean section is double that of a vaginal delivery. "It's creating capacity issues," said Thomas Guglielmo, the director of a New York-based healthcare consulting firm, Tefen USA. Mr. Guglielmo said hospitals are spending millions on expansion projects.
Montefiore Medical Center in the Bronx recently updated the obstetrics and gynecology facilities on its Weiler campus, and NewYork-Presbyterian is planning to upgrade some of its obstetrics units in the near future to include more single rooms and more amenities.
Jan 16, 2008 3:00 AM (8 days ago) by Taryn Luntz, The Examiner
WASHINGTON (Map, News) - Two Northern Virginia obstetricians who are immune from being sued were reprimanded by the state’s medical board last week for their roles in the devastating injuries of two children during childbirth.
Dr. Evelyn Ruelaz, who has practices in Manassas and Chantilly, and Dr. Regina Burton, who practices in Woodbridge, are protected from being sued by the children’s parents by a 1987 law intended to help the state keep obstetricians who were fleeing because of the high cost of medical malpractice insurance in Virginia.
The board’s reprimand carries no fine or suspension but becomes part of the doctors’ permanent records.
Ruelaz was reprimanded for her role as the obstetrician in the 2003 birth of Joseph Hershberger at Inova Fair Oaks Hospital.
According to Joseph’s mother, Lee Ann Hershberger, who spoke at a hearing by the state medical board, Ruelaz failed to notice her baby’s slowing heartbeat and left her alone for extended periods of time during labor, despite her high-risk pregnancy.
“There was nobody watching us or paying attention to what was going on,” Hershberger said, adding that her husband ran from room to room to find a nurse when she noticed the change in heartbeat.
“Joseph was born with no heartbeat, and they did CPR for 25 minutes before he finally got one,” she said. He has cerebral palsy and brain damage and needs 24-hour care.
Ruelaz could not be reached for comment Tuesday.
Burton was reprimanded for a 2002 incident in which she failed to properly treat a mother who had a history of hemorrhaging during childbirth, which resulted in the child’s lifelong injury.
Burton did not respond to a request for comment Tuesday.
Both doctors admitted during the hearings that they failed to pay enough attention to the deteriorating conditions of their patients.
Obstetricians in the state can opt to pay $5,000 a year for immunity from malpractice suits. That money, with contributions from hospitals and insurance agencies, is put in a fund that is distributed to parents of children who are injured during childbirth.
A jury has awarded $22 million to the family of a woman who died from complications that arose during childbirth at an Evanston hospital.
The jury agreed with the family of Rachelle Bentivenga that in 2003, the staff of St. Francis Hospital failed to properly treat her high blood pressure during labor and that she suffered a massive brain hemorrhage as a result.
Bentivenga was placed on a ventilator and died four days later. Her son, Richard, was delivered by Caesarean section and survived.
The verdict was awarded Tuesday against St. Francis Hospital and Dr. Calvin Monroe.
Aiju Thevatheril, an attorney for the defendants, said Wednesday the hospital was disappointed with the verdict and would pursue an appeal. Thevatheril declined to comment further on the trial.
A Cook County jury Tuesday awarded $22 million to the family of a woman who died in 2003 after giving birth in an emergency Caesarean section.
Attorneys said a doctor and nurse at St. Francis Hospital in Evanston failed to properly treat Rachelle Bentivenga's high blood pressure, a release said. Her son was successfully delivered, but Bentivenga, 34, died four days later.
Jury awards plaintiff $250 for mental anguish in injury case
1/17/2008 1:55 PM
By David Yates
Glynn Fowler told jurors he would need at least $50,000 to pay for his neck surgery, a condition he claims was caused by a 2002 automobile collision. He was awarded $4,750 as the personal injury trial in Judge Milton Shuffield's 136th District Court concluded on Wednesday, Jan. 16. His award for mental anguish was $250.
Fowler sued Virginia Olsberg, an elderly woman, in November 2005 claiming the auto collision she negligently caused three years earlier worsened his neck condition.
After the accident, testimony showed that Olsberg was ticketed for failing to control her vehicle.
The jury agreed that she negligently caused the accident and awarded Fowler $4,500 in past medical expenses and $250 for past mental anguish damages.
Fowler was asking for nearly $12,000 in past medical expenses and $50,000 for future medical expenses, plus court costs and attorney's fees.
During the trial, Fowler testified that the pain in his neck kept him from holding down a job and that his 12-year-old daughter was forced to do most of the household chores.
He also testified that immediately after the accident, Olsberg was yelling at him and accusing him of faking an injury.
On the other hand, Olsberg testified that it was Fowler who was yelling at her at the accident scene.
Fowler was represented by the Moore Landrey law firm.
Portage County jury awards widow $3 million in wrongful death suit
By Phil Trexler Beacon Journal staff writer
POSTED: 03:56 p.m. EST, Jan 16, 2008
When James Hizer found himself laid off after 27 years, he did what a lot of middle-aged men have to do: He took a low-paying, blue-collar job to get by.
And after just five weeks of working for about $12 an hour at a Streetsboro steel-cutting company, Hizer died.
While working alone on the midnight shift, the 58-year-old was trapped and suffocated inside one of the machines he was paid to run.
This week, a Portage County jury hearing a wrongful death lawsuit awarded his wife $2 million in compensatory damages and $1 million in punitive damages.
Mark Ropchock, an attorney with the Akron law firm of Roeztel & Andress representing Wanda Hizer, said James Hizer was out of work when he was hired by Artisan Industries Inc., a company doing business with Singer Steel of Streetsboro.
It was a career change of sorts. Hizer had worked for years as a white-collar computer technician when he was let go from his job at Greer Steel in Dover.
'Obviously, when you're 58 years old and you get laid off, you don't usually get a good job,' Ropchock said. 'He basically took this job to make ends meet.'
Ropchock said Hizer was on the midnight shift at Singer Steel n March 2005, operating a laser cutting machine. Whenever a sheet of steel shifted inside this machine, a worker ventured inside to straighten it.
It was while performing this task that Hizer became trapped, his chest pinned against a part of the machine. He died of compressional asphyxiation and was found that morning by co-workers; the crooked sheet of steel was still inside the machine.
An attorney for Artisan, Steve Chuparkoff, said the company has not decided whether to appeal the verdict.
``We are obviously disappointed in the decision, but we believe in the jury system and have faith that this is the best way to resolve these types of matters.'
Wanda Hizer, who lives in Green, wept as the jury in Common Pleas Judge Laurie J. Pittman's courtroom announced its verdict.
``I was overwhelmed,' she said. ``It really wasn't the money. It was the fact that, finally, other people believed me.'
Two students of Western Reserve Academy, who were burned in a chemistry class fire, have won an $18.9 million settlement.
Calais Weber and Celia Chen were among eight people injured in the flash fire that happened during a chemistry demonstration on January 23, 2006.
Weber was burned over 46% of her body, spent 70 days in the hospital, and required numerous skin grafts. Chen was burned over 18% of her body. They, four other students, a teacher, and the teacher's 10-year-old son were injured when a common chemistry demonstration went erupted into a flash fire.
Paul Perantinides, the lawyer for students and their families, said part of the settlement will be spent to create a program that will prevent similar accidents.
Weber and her family had agreed to a settlement in the summer of 2007 but the terms were not released until the outcome of the Chen case, which had been scheduled to go to trial in December, 2007.
Russell Morrison, director of marketing and public relations of WRA, confirmed the terms of the settlements and issued this statement:
"We deeply regret this incident and the injury it caused those who were present that day. We hope these settlements will allow the individuals involved to continue to move on with their lives."
"We also hope it will help bring closure for our entire school community as well as for the students and their families."
"It is important for the public to know that these settlements are covered by our insurance carrier. We believe that the agreements we've reached are fair. However, it will not have an impact on our programs or on WRA's finances going forward."
Calais Weber and Celia Chen are both now 17 years old and attend college.
Former Palm Beach County neurosurgeon, David M. Baron, was sentenced in a Ft. Lauderdale federal court Friday for felony convictions of prescribing scheduled drugs illegally over the internet. David Baron was indicted in early February 2007 as part of a Florida-based internet prescription ring netted by the DEA. He received 25 months for each count, followed by 3 years of conditional supervised release. Reportedly, he is currently facing other charges in Iowa related to similar offenses. Baron may also face more felony charges relating to back-due child support totaling over $330,000.
David Baron opened a neurosurgical practice in Loxahatchee, Florida in 1986, becoming the first neurosurgeon in the western communities of Palm Beach County. He practiced in South Florida until he relocated to Pueblo, Colorado in 1996. In December 2000, David Baron voluntarily surrendered his Florida medical license in order to avoid further prosecution in a disciplinary action related to malpractice. He continued to practice in Colorado until his license was suspended in 2005 by the Colorado Board of Medical Examiners, at which time he moved to Anaheim Hills, California to live with his mother. In 2007 Colorado Board of Medical Examiners formally revoked Baron's medical license in connection with several malpractice cases and the DEA's felony indictments.
According to investigative reports taken before sentencing, David Baron admitted to drug use throughout his medical career including marijuana and cocaine. As part of sentencing, Baron is ordered to attend a drug and alcohol treatment program. Baron will serve each 25 month sentence concurrently and will voluntarily surrender to the designated federal facility by noon on or before March 8, 2008 to begin serving his sentence.
A jury of four men and three women found in favor of macing victim Jarrod Hollinger yesterday in District Civil Court. For his pain and suffering, they awarded him one dollar. They also found in Hollinger’s favor regarding a counterclaim by defendant Scott Courts, who said the macing was justified because Hollinger threatened him.
On July 5, 2006, Courts sprayed Hollinger in the face with pepper spray from the driver’s seat of his Chevy Tahoe, after a near-collision between them at the S-curves connecting Main Street to Highway 82 in Aspen.
The incident lasted less than 20 seconds. But whether it was a malicious act of road rage, or self defense, or a response to a quip about Courts’s resemblance to actor Gary Busey, adjudicating the case required a day-and-a-half of argument and testimony in Judge James Boyd’s courtroom, and longer than that in the jury room.
Juror Lisa Johnson said the lack of physical evidence was what kept them deliberating for approximately 10 hours — more time than the attorneys took to present the case. “There was a lot of varying testimony and not a lot of evidence,” Johnson said after the trial. “So it was a matter of analyzing different words and what was true and what was not.”
And why not award more than a buck to the victim?
“We felt there was ample opportunity for both parties to avoid (the confrontation),” Johnson added. “Both parties learned lessons from this. It’s not always about money.”
Both sides claimed the jury’s decision as a victory.
“This was never about money,” said Hollinger’s attorney, John Case, after the trial. “They found (Hollinger) was assaulted. ... Courts wanted to be exonerated, and he was not.” Defendant Courts said the verdict was toothless without a monetary penalty. “The bottom line is that we don’t have to pay,” he said outside the courtroom.
“In sports we call this an all-day sucker,” said Courts, who was a member of the 1978 NCAA basketball championship team from the University of Kentucky.
His attorney, Jonathan Cross, of Denver, said they had made settlement offers of $1,000 and $5,000 to Hollinger, who refused both and said he would not accept less than $50,000.
Cross added that he intends to file to recover costs for the defense. He estimated that the total will be in the neighborhood of $10,000.
The trial included testimony from both Hollinger and Courts, as well as former Aspen police officers Adam Crider and Dan Glidden, who arrested the men separately after the incident. Neither Courts nor Hollinger was convicted of a crime.
Courts testified that he maced Hollinger because Hollinger said he was going to beat him up, and was getting out of his car to attack him.
However, former officer Crider testified that during an interview after the incident, he pressed Courts to describe Hollinger’s lower body. Courts, he said, could not describe Hollinger’s shorts, an indication that Hollinger did not get out of his car.
Courts called 911 immediately after macing Hollinger. Audio of his call — as well as Hollinger’s own call — were played for the jury, who heard Courts tell a dispatcher he had maced Hollinger because he had “accosted” him.
Expert car accident analyst Dr. Jubal Hammernik testified that Hollinger could have made the left-hand turn onto Highway 82 that he was attempting to make when the fight ensued without a collision.
Hammernik could not say conclusively whether Hollinger’s door was open or closed when he was sprayed. That point — whether he posed a threat to Courts — remained unclear, and the jury was handed a basic “he-said, he-said” case.
Hollinger’s attorney, John Case, argued that Hammernik’s time-space analysis and testimony were meaningless because there was no physical evidence from the site of the incident, such as skidmarks.
During his closing arguments, Case pointed out that Hollinger had been a driver for the St. Regis hotel for three years without incident, and that his client is “a polite person who gets along with people — not a hothead in any sense.”
Hollinger pleaded guilty in December to reckless driving and operating an unsafe vehicle for an unrelated incident. That conviction was not revealed in court.
Navy hospital malpractice suit is settled for $750,000
The case involved a Middleburg woman who died in 2005.
By Paul Pinkham, The Times-Union
The government has agreed to pay $750,000 to settle a medical malpractice lawsuit with the family of a Middleburg woman who died after undergoing eight surgeries in just over a month at Jacksonville Naval Hospital 2005.Lawyers for the Justice Department and relatives of Betty Jean Plato informed their court-appointed mediator Wednesday that they had agreed to the settlement.
Plato, 76, died in 2005 of a blood infection after showing up with abdominal pain at the hospital emergency room at Jacksonville Naval Air Station. She underwent eight surgeries over 35 days.
Her family's lawsuit accused the Navy of failing to properly evaluate or diagnose her condition, provide reasonable care or transfer her on time to a facility equipped to manage her medical condition.
Jacksonville Naval Hospital's commanding officer, Capt. Raquel Bono, was on leave Friday and couldn't be reached for comment.
The family, including a son serving with the Marines in Iraq, declined comment. Their attorney, Sean Cronin, said they are pleased with the settlement.
The settlement leaves five pending lawsuits against the hospital in U.S. District Court in Jacksonville. The facility has been sued repeatedly in recent years, facing allegations of substandard care.
In a split ruling stemming from a fatal accident, the state Supreme Judicial Court has opened the door to a huge increase in medical liability lawsuits, a result that is apt to raise the cost of medical treatment while undermining the quality of care.
Medical malpractice laws properly hold physicians responsible for mistakes that harm their patients and/or causes pain and suffering. While vulnerable to abuse, that standard of accountability has a net positive effect on the quality of patient care.
On Monday, the Supreme Judicial Court reinstated a lawsuit against a doctor who was treating a 75-year-old cancer patient whose car struck and killed a 10-year-old boy in 2002. The man, who died later that year, had finished his course of chemotherapy but was taking medicine for high blood pressure and other conditions, the Associated Press reported, and the lawyer for the boy’s family contended the physician should have known the man’s medicine created a dangerous situation.
In reversing the superior court’s dismissal of the lawsuit, the SJC did not rule on the validity of the family’s claims. However, it did allow the case to go forward — in effect opening a whole new field of medical liability law that is ripe for exploitation.
Dissenting from the ruling, Chief Justice Margaret H. Marshall emphasized the “sweeping” change it would usher in, citing its chilling effect on medical practice: “The physician would be forever looking over his shoulder.”
Indeed, making doctors legally liable not only for their treatment of their patients, but also for an extended chain of events over which they have no control, will certainly change the way physicians treat their patients, and certainly not for the better. Helpful medicines that might have side effects may not be prescribed. Costly tests may be ordered not because they are needed but to provide legal cover for the physician in case of a lawsuit.
In creating a whole new area of medical liability litigation, the court majority has set in motion changes that will ill-serve patients and drive up the cost of health care for everyone.
Memorial Hermann Baptist Orange Hospital
In June 2007, The Record reported on a $3 million medical malpractice trial that tied up Judge Gary Sanderson's 60th District Court only to end in a mistrial June 4.
A new trial was slated for November, but on Jan. 7, 2008, Sanderson signed a final judgment in the case, acknowledging that the two parties had settled for an undisclosed amount.
In June jurors failed to craft a fair judgment for the family of the late Richard Bernard Salter, who alleged the lack of action and incompetence of numerous Memorial Hermann Baptist Orange Hospital medical personnel ultimately led to Salter's death.
They had asked jurors to award them more than $3 million in damages.
The trial and testimony
Salter's family claims that Dr. Marshall Packard, the Triangle Hospital Care Group and the Baptist Hospital of Southeast Texas (Baptist Orange) breached the ordinary standard of care by failing to adequately observe, assess, diagnose, treat and transport Salter.
According to the court documents, Salter, 36, sought emergency medical treatment at the Orange Hospital on Feb. 1, 2003. He was diagnosed with dehydration and R/O sepsis and held for four hours before being transported to the telemetry unit, where he was attended by Dr. Packard and a nurse.
Salter had previously undergone surgery to remove his spleen in 1997, which medical experts agreed made him highly susceptible to infection. An autopsy report revealed he died of sepsis, a severe infection.
The defense argued that no matter what course of action medical personnel pursued, Salter was going to die of "overwhelming" infection. Expert testimony by the defense said his survival rate was below 50 percent.
The defense also argued that Salter died because of his own laxity, saying he should have gone to the hospital the night before when his temperature reached 102 degrees Fahrenheit.
On the other hand, medical records and testimony on both sides state the nurse spent only 14 minutes with Salter before leaving him "in his time of need" to take her lunch break.
The plaintiffs argued that the nurse never properly performed a physical examination. If she had, the nurse might have discovered Salter was suffering from circulatory fluid overload, which could easily progress to pulmonary edema, a dangerous condition.
During the trial, Davis said Salter died from fluid in his lungs, not just infection. Right before his death, testimony showed Salter had 2,500 milliliters of intravenous fluid in his system, the equivalent of three bottles of Gatorade and two Red Bulls. "This man drowned to death," Davis said.
Conversely, the defense argues that the nurse was a seasoned veteran with more than 20 years of experience who did not breach the standard of care while tending to Salter, and that nurses are prohibited from making medical diagnosis.
Nurses can only assess a patient's condition and relay the information to a physician.
"These were good nurses," said Griffin Vincent, defense attorney, at the trial. "They provided good care."
Medical records showed the nurse's notes on Salter were vague, and that she returned to add more detailed information to Salter's chart only after his death.
"All the evidence in this case, I believe - proves the (medical personnel) dropped the ball," Davis said, adding that if Salter's oxygen was simply increased to 100 percent, he would still be alive today.
Former Leader of Now Bankrupt Institute for Cancer Prevention Pleads Guilty
A brief AP story published in Newsday alerted me to a significant story of malfeasance that destroyed a once prestigious medical research institution, but till now has remained surprisingly anechoic. Let me piece it together chronologically.
The Institute for Cancer Prevention (IFCP), formerly the American Health Foundation, was hailed (in a press release by New York Senator Charles Schumer) as "the only National Cancer Institute designated cancer center exclusively devoted to cancer prevention research." The Institute was described in a New York Post article (not on the web, Edelman S. Cancer scandal: bankrupt institute blew $5M. NY Post, Oct 3, 2004.):
Known for its early research linking smoking and cancer, the IFCP was the only government-supported center that focused solely on prevention.
It was respected for groundbreaking work on how diet can prevent cancer, touting the benefits of soy, garlic, zinc, tea and low-fat foods.
The institute boasted Rudy Giuliani as guest speaker at its last fund-raising gala, and Bill Clinton came to accept an award given to his wife, Sen. Hillary Rodham Clinton. Whoopi Goldberg hosted an event in 1998.
In February, Sen. Chuck Schumer called IFCP 'one of the world's very best research facilities.'
But in 2004, the Institute abruptly and unexpectedly declared bankruptcy, again per the NY Post,
Financial problems cropped up in 2000 when the institute had to repay the government's National Cancer Institute $4 million in overspent grants.
But the problems continued, culminating in a terse letter to [ICFP President Dr Daniel] Nixon from the institute on Sept. 9.
The letter, written by NCI grant manager Leo Buscher, said the IFCP 'improperly withdrew $5.7 million and inappropriately used those funds for non-grant-related expenses.'
He told The Post the funds should have been used only for researcher salaries, animals and lab supplies, but were diverted to cover the institute's overhead expenses.
'It was a surprise it had gotten so bad and so big,' Buscher said of the overspending.
Increasingly generous executive pay and high rent were biting into the institute's $18 million budget.
Nixon raked in $403,000 in salary and benefits in 2002, according to the latest tax returns filed.
A half-dozen other managers and consultants got $150,000 to $286,000 a year, the records show.
Last year, the institute left a cramped office on the East Side near 42nd Street and leased 15,000 square feet at the Gorham Building on Fifth Avenue and 36th Street.
A subsequent NY Post story suggested that the Institute's President lived the good life at Institute expense while the money was being diverted (not on the web, Edelman S. Wine-&-Dine cancer doc; his institute hits bottom $. NY Post, Oct 10, 2004.)
Dr. Daniel Nixon, a noted cancer doctor whose patients included Jimmy Carter's mom and Atlanta Braves players, was living high as New York's prestigious Institute for Cancer Prevention collapsed around him, The Post has learned.
Nixon, 61, the IFCP president who was paid more than $400,000 a year, enjoyed a full-time chauffeur and leased a car at the institute's expense.
A nutritionist who touted raspberries and strawberries to prevent certain cancers, Nixon jetted around the country to wine and dine 'potential donors,' said sources familiar with his expense vouchers.
Note that the bankruptcy of the Institute was covered in a news item in Science. As far as I can tell, it was never covered in the national media, particularly in the NY Times or the Washington Post, or in any medical or health care journals.
In early 2007, the US Attorney for the Southern District of New York announced a settlement:
Michael J. Garcia, the United States Attorney for the Southern District of New York, announced today that Dr. Daniel Nixon, former president of the Institute for Cancer Prevention ('IFCP'), IFCP’s former officers, and the former members of IFCP’s Board of Trustees have agreed to pay $2,300,000 to resolve civil False Claims Act charges and any other civil claim arising from IFCP’s alleged unlawful receipt and use of federal grant money. In addition, Tatum, LLC ('Tatum'), a financial services firm, has agreed to pay $400,000 to resolve civil claims arising from its services to IFCP. Finally, Weiser, LLP ('Weiser'), IFCP’s outside auditor, has agreed to pay $500,000 to resolve negligence claims relating to its audits of IFCP.
The settlement acknowledged:
During calendar years 2002 and 2003, however, IFCP drew down approximately $5 million of federal grant money to pay bills that were not eligible for reimbursement under its federal grants. In addition, IFCP submitted false financial reports regarding its draw downs to the United States Department of Health and Human Services ('HHS').
But of course,
The settlement does not release any of the parties for any violation of the criminal laws. None of the parties making payments under the settlement agreement has admitted any liability or wrongdoing in connection with the settlement.
As far as I can tell, the settlement received no local, much less national news coverage.
What brought all this to my attention was yesterday's AP story (in Newsday).
A bankrupt cancer research center's former finance chief has admitted lying to FBI agents investigating whether the institution misused federal money.
'I am truly sorry, and I accept responsibility,' Roy Victor said as he pleaded guilty in U.S. District Court Wednesday to obstruction of justice. He faces a possibility of up to 10 years in prison at his sentencing, set for April 18.
Victor, 44, was the Institute for Cancer Prevention's chief financial officer from November 2001 to May 2003. Federal authorities started questioning him in November 2004, two months after the Valhalla-based institute filed for bankruptcy. Federal auditors had found that the research center had improperly sought to use grant money for expenses not related to the grant's purpose, according to court papers.
Victor acknowledged lying when he told federal investigators the institute had not submitted false statements to hide improper requests to draw on $6 million in Health and Human Services Department grants.
This sad tale illustrates what I suspect is an all too common phenomenon. In a go-go, get rich quick, narcissistic culture, in an economy in which health care has become a $2 trillion a year "industry," and in a business climate that worships the "imperial CEO," many respected health care organizations and institutions have been taken over by the wrong sort of people. Their leaders often at best have no understanding or sympathy for the health care mission and health care ethics. At worst, some of their leaders are criminal (see, for example, Mr Victor above) and corrupt. Leaders interested first in short-term financial gain and lining their own pockets are weakening, and in this case of the Institute for Cancer Prevention, have destroyed, some of our best and most revered health care institutions.
Until we make the governance of health care organizations more transparent, accountable, ethical, and respectful of the organizations' missions, things will continue to go down hill. And until physicians, policy makers and the public become aware of the damage being done by ignorant, conflicted and corrupt leadership of health care organizations, nothing will be done at all.
ADDENDUM (5 January, 2008) - Also see more background, links, and comments in this post on the Junkfood Science blog.
Unlawful Surveillance At The Legal Aid Society
Are lawyers any less perverted than the rest of society? Probably not, and maybe, just maybe, they are more so. Take the small example of attorney Peter A. Barta who was disbarred yesterday by the First Department - Matter of Barta, 2008 NY Slip Op 00071.
Mr. Barta was an attorney who was employed by the Legal Aid Society. He admitted that during the period from approximately May 25, 2004 through September 30, 2004 he intentionally used an imaging device to surreptitiously record and review a person dressing or undressing in the offices at the Legal Aid Society. He thus pleaded guilty to unlawful surveillance in the second degree (Penal Law § 250.45). Because unlawful surveillance in the second degree, is a class E felony, Mr. Barta lost his license to practice under Judiciary Law § 90(4)(b),(e).
I guess you never know who or where someone might be watching you. And a question: Why are people dressing and undressing at the Legal Aid Society? What is going on there?
'Gross-out factor' makes episiotomy story most-viewed for 2007
1/3/2008 2:00 PM
By Marilyn Tennissen
Since its first publication in April 2007, the Southeast Texas Record has written about hundreds of Hurricane Rita-related lawsuits, asbestos injury claims, class actions against refineries and countless other civil suits filed in Jefferson County.
But by far, the story that created the most interest and received the most hits on the Record's Web site in 2007 was a medical malpractice case about a botched episiotomy.
"Episiotomy delivers doctor to court, settlement reached" was first posted on www.setexasrecord.com on April 16, 2007. The case dealt with a Nederland woman who began complaining of abdominal pain after giving birth and discovered feces in her vagina.
"Before the medical malpractice trial of a Jefferson County doctor began on Monday, April 16, prospective jurors were warned the content of the trial -- complications following an episiotomy -- may turn even the strongest of stomachs," wrote Record reporter David Yates. "Apparently, the defense thought the details were too gruesome for jurors to digest. The case was settled the next day."
While jurors were spared the gruesome details, the "icky" story received almost 90,000 hits the first week as it made its way around the World Wide Web. Ten months later, the story still receives around 100 hits a week, usually ranking in the top 10 most-viewed stories. Apparently, the unfortunate woman's tale has found its own audience in cyberspace.
But, aside from the fans intrigued by the gross-out factor, a substantial number of readers visited the Record Web site for its coverage of local litigation.
Frequently in the top 10 is the recent patent infringement case listing from the Marshall Division of the Eastern District of Texas. Marshall's federal court has become known as the "Rocket Docket" for its stream-lined handling of patent cases from around the country.
"Legally Speaking," a column by Dallas attorney John Browning, is also a regular as the No. 2 or No. 3 most viewed story for the week. Using humor and compassion, Browning has covered topics as serious as the 9/11 attacks and as insane as the judge who sued his drycleaner for losing a pair of pants.
A November "Legally Speaking" column, "Truth Is Stranger Than Fiction," dealt with a preacher being sued for a boring sermon, a kid's party clown sued for blowing bubbles that were too slippery and other wacky suits. It received almost 10,000 hits.
A suit by a fireman for having to strain to buckle his seatbelt and one by a lawyer suing Ford for a not-so-tough truck also scored high on the hit meter. In October, a federal suit by a postal carrier who hit her head on an overhead door and sued Wal-Mart received several thousand hits in two weeks.
At year's end, the most popular story is about a man who sued the International House of Pancakes after tripping over a floor mat. IHOP failed to respond to the suit, so the plaintiff was awarded a $1 million default judgment.
Without a doubt, 2008 is sure to see its share of cases both bizarre and tragic, and The Record will be there to cover it.
By DENISE GRADY
Published: January 3, 2008
In nearly a third of cases of sudden cardiac arrest in the hospital, the staff takes too long to respond, increasing the risk of brain damage and death, a new study finds.
Researchers estimate that the delays contribute to thousands of deaths a year in the United States.
The study was based on the records of 6,789 patients at 369 hospitals whose hearts stopped because of conditions that could be reversed with an electrical shock from a defibrillator — a favorite device in TV hospital dramas, when a “code blue” is called and doctors and nurses come running with a crash cart and paddles to shock the victim back to life.
In the real world, doctors and nurses do not always run fast enough. Expert guidelines say the shock should be given within two minutes after the heart stops, but the study found that it took longer in 30 percent of the cases.
The consequences were striking. When the defibrillation was delayed, only 22.2 percent of patients survived long enough to be discharged from the hospital, as opposed to 39.3 percent when the shock was given on time.
The study, being published Thursday in The New England Journal of Medicine, is the largest ever to look at what happened to patients with “shockable” abnormalities in heart rhythm, and to correlate their outcomes with the time it took to deliver the needed shock.
Delays were more likely in patients whose hearts stopped at night or on the weekend, who were admitted for noncardiac illnesses, in hospitals with fewer than 250 beds and in units without heart monitors.
Being black also increased the odds of a delay, but the researchers said this finding probably reflected the quality of hospitals in areas where most blacks live and are treated, rather than a decision by medical workers to drag their feet because of a patient’s race.
In hospitals as a whole, delays may be even more frequent than is suggested by the 30 percent figure in the hospitals studied, said the lead author, Dr. Paul S. Chan of St. Luke’s Mid America Heart Institute in Kansas City, Mo., and the University of Michigan. Dr. Chan said that because all the hospitals in the study had joined a national registry on cardiac arrest, meaning that they were already putting special efforts into trying to meet resuscitation guidelines, they probably performed better than average.
The registry, created by the American Heart Association, keeps the data on which the study was based anonymous, Dr. Chan said, so it not possible to identify hospitals that performed especially well or poorly.
Dr. Leslie A. Saxon, chief of cardiology at the University of Southern California and author of an editorial accompanying the study, said most people probably assumed that a hospital would be the best place to have a cardiac arrest. But, Dr. Saxon said, the assumption turns out to be incorrect.
“I think it’s something doctors have always known but not thought about,” she said, adding that Dr. Chan’s team had conducted a “great study” that would help doctors recognize the problem and try to solve it.
“This is the kind of data we need to say, Let’s make sure these preventable things never happen on our watch,” Dr. Saxon said.
While exact numbers are not known, researchers estimate that 370,000 to 750,000 hospitalized patients have a cardiac arrest and undergo resuscitation every year in the United States. In a third to half, the arrest is caused by an abnormal, too-fast rhythm that can be corrected with a shock, Dr. Chan said. (The rest need drugs or other treatments.)
“We know what works, what saves lives,” Dr. Chan said. “We have the technology available, and certainly the knowledge and skilled personnel in the hospital to shock patients back to normal rhythm.”
But it will take “political will” for hospitals to put those resources to better use, he said.
Dr. Chan said researchers thought they knew some of the reasons for delays. Sometimes, he said, especially at night and on weekends, not enough personnel are available. In some hospitals, nurses other than those in the intensive care unit are not allowed to use defibrillators, and must wait for a doctor to show up.
“In a small hospital in the middle of the night,” Dr. Chan said, “the only doctor may be in the emergency room.”
The next step in the research, he said, is to learn precisely what successful hospitals do that sets them apart, so that others can learn. Hospitals with the best track records may keep their staffs sharp, he said, by conducting resuscitation drills or “mock codes,” and may have rapid response teams, which are specially trained groups that take care of all cardiac arrests.
Dr. Chan said another factor was the type and the amount of resuscitation equipment available. Traditional defibrillators used in hospitals require that a doctor or a nurse look at the patient’s electrocardiogram, verify that the problem is “shockable,” adjust the machine and deliver the shock.
By contrast, the automatic defibrillators that have come into use in public places like airports and casinos during the last decade or so are meant to be used by laymen: trained employees or even bystanders. Connected to the chest of someone who has collapsed, the machine senses electrical activity in the heart and delivers a shock only if it is needed. These devices are designed to be essentially foolproof, making it impossible to harm someone by firing off an unnecessary shock. But so far they have not been used much in the care of hospitalized patients.
Dr. Saxon said the automatic defibrillators should be used more, along with the type of heart monitoring now given mostly to cardiac patients. Not everyone needs such monitoring, she said, but it may be in order for those who are very ill with kidney problems, diabetes or pneumonia, even if they have no history of heart problems. Their information would be transmitted to a computer network that would send out an alert if needed. In addition, she said, automatic defibrillators could be installed in every hospital room.
“You can get them for $500 on eBay,” she said. “It wouldn’t even take a nurse. You could train the cafeteria workers if you wanted to.”
Now, she said, if a patient is not being monitored, and is in the hospital on the weekend in a unit that has one nurse for every four to eight patients, a cardiac arrest could go unnoticed for too long.
Speaking on her cellphone, Dr. Saxon said, “You’re better off having your arrest at Nordstrom, where I’m standing right now, because there are 15 people around me.”
By SANDEEP JAUHAR, M.D.
Published: January 1, 2008
One morning not long ago, I got a call from the emergency room at my hospital. A young man — an intern, in fact, who had been on rounds that morning — had been admitted with chest pains. Could I come to evaluate him?
Pietari Posti
He was 30, a Pakistani man with a long face and a disconnected look, which I attributed to anxiety. I asked him about the pain. It had started after dinner the night before, lasting about 10 minutes. He had slept comfortably, but the pain recurred while he was walking to the bus stop that morning, persisting almost an hour. It was a dense pressure in the center of his chest. To be on the safe side, he had decided to leave rounds and come to the E.R.
His blood tests were normal, as was his first electrocardiogram. He had none of the traditional risk factors for heart disease. I suspected he was suffering from acute pericarditis, a usually benign inflammation of the membrane around the heart often treated with over-the-counter anti-inflammatory drugs. Characteristic of pericarditis, the pain worsened when he took a deep breath. I told him that if blood tests in six hours were normal, we would send him home. I joked that there were easier ways to get out of internship duty.
Later that morning, I got a call from an E.R. physician informing me that my patient’s pain had resolved completely after he took ibuprofen, further confirming the diagnosis of pericarditis. For a moment I considered sending him home right then, but I decided to wait until the next set of blood tests was complete.
Just before leaving the hospital that evening, I ran into a physicians’ assistant. He told me that my patient’s subsequent blood tests showed evidence of minor cardiac muscle damage. Though surprised, I quickly explained that the problem was probably myopericarditis, where inflammation of the surrounding membrane can partially involve the heart muscle.
He asked me whether the young doctor should have an angiogram to rule out artery blockages. It was late; I told him that any work-up could wait until morning. I assured him that a 30-year-old with no risk factors did not have coronary artery disease. I told him to draw more enzymes and to order a cardiac ultrasound for the morning, and to call me at home if there were problems.
My patient had chest pains through the night. Doctors who were called to see him attributed them to myopericarditis, the diagnosis written in the chart. Further blood tests showed evidence of continuing heart muscle injury. An EKG the following morning showed nonspecific signs consistent with a heart attack. Though I still doubted that he had coronary disease,
Doctors could respond to concrete concerns, such as that a patient was feeling physical pain, or was having trouble getting an appointment. But they largely ignored patients' emotional concerns -- even when that concern was an outcome of surgery, or how long they had left to live.
