Articles Posted in Medical Malpractice

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In a truly disturbing case out of Massachusetts, a court determined that a doctor’s previous place of employment does not owe any duty to future patients of that doctor after he leaves the place of employment.

usg-1-262481-m.jpgIn the case Roe No. 1 v. Children’s Hosp. Med. Ctr., a doctor was accused of performing unnecessary genital examinations on young children. The plaintiffs in the lawsuit named one of the hospitals that the doctor used to work at in the suit, alleging that the hospital should have reported the doctor to licensing agencies after accusations arose that he was sexually abusing child patients. However, the court determined that because all of the alleged conduct in the current lawsuit took place after the doctor had left the defendant hospital, the defendant hospital didn’t owe any duty of care to the future patients of the doctor.
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Before undergoing any sort of medical procedure, patients are typically supposed to provide what is known as “informed consent.” Informed consent means that all patients should understand and agree to the potential consequences of their care. While Kentucky recognizes exceptions to the rule, such as in certain emergencies, a physician who performs a procedure without the patient’s informed consent may be liable for medical battery.

surgical-instruments-1183621-m.jpgRecently, an informed consent case arose in the news regarding an amputated penis. Although the case was in Alabama rather than Kentucky, it raised parallels with a case in Kentucky that was decided in 2011. In the current case, an Alabama man had a medical procedure for a circumcision at Princeton Baptist Medical Center and later learned that surgeons had amputated his penis. The patient, Johnny Lee Banks, claims that he never gave his informed consent to a complete or partial amputation procedure. Banks and his wife are now suing the Medical Center and the two doctors who performed the amputation, seeking damages for pain and suffering, medical bills, and loss of consortium, among other things. Meanwhile, the defendants have filed a motion to dismiss the case, stating that the allegations were false and that neither doctor performed a circumcision or removed any tissue from Banks’ penis.

The case is very similar to one in Kentucky that was decided a few years ago. Informed consent under Kentucky law mirrors the requirements of other states. Back in 2007, a Kentucky man was undergoing a circumcision to treat inflammation when the doctor performing the procedure found a potentially deadly cancer on his penis. The doctor removed less than an inch of the penis, and after a pathologist confirmed the cancer diagnosis, a second doctor removed the rest of the penis. The doctor claimed the man had already provided permission to take any treatment action, and that there was no other reasonable option available to prevent the cancer from spreading other than removing the penis. However, the patient sued the doctors, claiming that they had amputated his penis without his informed consent and without allowing him to seek a second option. In 2011, the jury ended up siding with the doctors.
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Often, an injured party must first file a claim with a state agency before being allowed to pursue the claim in court. This is known as “exhausting administrative remedies.” Once that agency has reached a determination, and the injured party has had the opportunity to appeal, the injured party may decide whether to accept the agency’s ruling or file a lawsuit in court. Sometimes, though, it is not always clear whether an injured party must wait for the agency action before pursuing the claim. Such was the case with Valance v. Fries.

old-melbourne-goal-1443855-m.jpgValance, a diabetic, was admitted to jail in Allen County, Indiana, as a pre-trial detainee in January 2012. At some point later, he developed sores on his feet due to the jail-issued footwear he had received. Valance claimed that the shoes were too small for him, and that the jail staff should have provided him with properly fitting footwear. He was referred to a podiatrist, who treated his sores with iodine.

However, the sores failed to heal, and by April 2014, the affected area was red and badly swollen. The swelling began in Valance’s toe but later spread to the rest of his foot. His toe turned black. Valance was finally taken to a hospital, where his toe and part of his foot were amputated. After Valance was discharged from the hospital, he returned to jail, but he had to go to the emergency room after a follow-up appointment revealed inflammation and one of his other toes turning black. Valance was sent back to jail after the visit, with emergency room staffers telling jail medical staff that if the infection spread up the foot, or if the toe began to rot off, Valance must return to the emergency room. Three days later, this exact scenario occurred. Valance claimed that he alerted jail medical staff, but they refused to send him to the emergency room, instead placing him on sick call for the day. Valance eventually had to have his leg amputated below the right knee. He claimed that, had the jail medical staff acted sooner, this outcome could have been avoided.
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Screen Shot 2014-05-21 at 3.25.43 PM.pngIn a recent case, a Kentucky estate administrator appealed a jury verdict finding that the defendant was not liable for medical malpractice and medical battery. The case arose when a woman came to a medical center complaining of pains in her jaw, chest and arm. A cardiologist put her on Plavix and did a cardiac catheterization. He found blockages in her arteries.

The cardiologist consulted with the defendant, also a cardiac doctor, to determine if she would be a good candidate for coronary artery bypass grafting. The defendant talked to her about different medical options such as CABG surgery and medical management. The patient decided to undergo CABG surgery. She signed a consent form and her Plavix was discontinued. She was taken to surgery and her anesthesiologist decided it would be better to insert a catheter into her right internal jugular vein. This procedure didn’t work and while he was trying he accidentally punctured her superior vena cava, located behind her heart.

No one knew she had been punctured. Her blood pressure suddenly dropped during surgery, causing the defendant to dissect her pericardium to look at her heart. He couldn’t figure out why there was blood. He finished the procedure. Before he closed her up, he nicked her pleura (the membrane around the lungs) to take out fluid. He saw a lot of blood and figured out where it was coming from. He asked for assistance and repaired it. At first the plaintiff seemed to be recovering. But later she suffered setbacks that resulted in serious respiratory problems. She died in 2002, 16 months post-surgery. Before her death, her attorney sued the doctor and anesthesiologist for medical negligence and also sued their employers for vicarious liability. Later the administrator of her estate added a party and claimed the defendant who had performed the surgery had committed medical battery, among other things. The court granted summary judgment in favor of the defendant for the medical battery claim. The medical negligence trial commenced.
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Recently, in Noble v. Three Forks Regional Jail Authority, a Kentucky inmate sued the prison staff for, among other things, medical malpractice and intentional infliction of emotional distress.

breakout-740275-m.jpgArlie Noble was convicted in 2011 of possessing and distributing child pornography. Noble was sentenced and sent to the Three Forks Regional Jail until his release the following year. Noble allegedly suffered from diabetes and Crohn’s disease, which required extensive treatment.

During his incarceration, Noble claimed that his rights were repeatedly violated, in that the staff gave him his diabetes medication in a manner contrary to his doctor’s advice; and fed him doughnuts, honey buns, and other foods high in sugar that worsened his condition. As a result, Noble claimed to suffer from glaucoma, internal organ damage, and dysfunctional sugar levels. In claiming medical malpractice and intentional infliction of emotional distress, Noble cited state law. He sought past and future medical expenses, past and future expenses arising from emotional distress, and punitive damages. The Three Forks Regional Jail Authority filed a motion for summary judgment, arguing among other things, that Noble’s state law claims were barred by sovereign immunity and otherwise failed as a matter of law.
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The Court of Appeals of Indiana recently denied an injured party the opportunity to appeal a judgment against him in a medical malpractice case, Durall v. Weinberger.

doctor-patient-relationship-673854-m.jpgBeginning in 2001, Robert Durall sought treatment from Dr. Weinberger of the Merrillville Center for Advanced Surgery, LLC for sinus problems. He underwent several procedures on the advice of Dr. Weinberger, which did not correct his problem and which, Durrall later believed, may have been unnecessary. At some point, Weinberger fled the country as his practice collapsed. Durall then filed a proposed complaint with the Indiana Department of Insurance for medical malpractice against Dr. Weinberger, the Merrillville Center, and the Nose and Sinus Center, LLC. The Department’s medical malpractice review panel concluded that the proposed defendants failed to meet the proper standard of care and there was a question of fact as to whether their actions may have harmed Durall.

Durall then filed a complaint in state court against Dr. Weinberger and the two corporations, claiming medical malpractice. The defendants filed a motion for summary judgment, asking the court to (1) limit the negligence claims solely to Dr. Weinberger; (2) bar Durall from recovering emotional damages caused by Dr. Weinberger’s fleeing the country; and (3) dismiss Durall’s claims as untimely. Finally a hearing was held in November 2012, and the court permitted Durall’s claims to move forward, but limited his negligence claims to Dr. Weinberger and barred him from recovering emotional damages. Durall filed a motion to reconsider, and initially, in March 2013, the trial court issued an order certifying its November 2012 order for a discretionary interlocutory appeal. However, in April 2013, the trial court issued a stipulated order denying Durall’s motion to reconsider and denying Durall the opportunity to file a discretionary interlocutory appeal. Durall then filed a request with the Court of Appeals to accept jurisdication of the discretionary interlocutory appeal.
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A Kentucky man has filed a lawsuit against the University of Kentucky Medical Center, claiming that the medical staff misdiagnosed him with HIV back in 2004. The University of Kentucky has requested that the Fayetteville Circuit Court dismiss the case.

hospital-1031747-m.jpgIn 2004, Bobby Russell went to the University of Kentucky emergency room with symptoms including a sore throat, fever, and open sores and wounds. After undergoing testing, Russell was diagnosed with HIV and started on an antiretroviral medication that seemed to suppress the illness. The only problem was that in 2012, Russell underwent more testing at Bluegrass Care Clinic, an infectious disease and HIV/AIDS clinic that is affiliated with the University of Kentucky’s medical school. There, he learned that he did not have HIV.

Russell argues that none of the University of Kentucky Medical Center’s staff ordered the full spectrum test for HIV, and thus did not take reasonable care. Meanwhile, the University of Kentucky’s spokesmen argue that proper testing was conducted back in 2004, and that using proper testing techniques, Russell was properly diagnosed with the HIV virus. The University of Kentucky Medical Center took every precaution to ensure that Russell’s illness did not progress. The University of Kentucky also asked for the court to dismiss the Medical Center and Bluegrass Care Clinic from the case because the Kentucky Supreme Court had established that the university was entitled to sovereign or government immunity from medical malpractice claims.
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USA Today investigation found a disturbing lack of accountability for doctors nationwide, and Kentucky is likely no exception. The investigation found that state medical boards allow doctors to keep practicing medicine even after findings of serious misconduct. From 2001 to 2011, as many as 6,000 doctors had clinical privileges restricted or were barred from practicing in certain hospitals, but retained unblemished licenses. Of the 800 doctors with the most malpractice actions, fewer than one in five faced license suspension or restriction.

operation-1389104-m.jpgThe University of Kentucky Chandler Medical Center may be among those who should take a closer look. One recent article noted that although the University of Kentucky ranks high on the list of U.S. News and World Report, it has fared badly on other lists related to patient care. Consumer Reports gave Chandler Medical Center just a 47 out of 100 for patient safety, as well as low marks for surgical complications. Likewise, the Leapfrog Group, a hospital safety group, gave Chandler Medical Center a “C” compared to the higher grades it gave other area hospitals, like St. Joseph East.

One reason for Chandler Medical Center’s failings is its policy of nondisclosure. For instance, it recently filed a lawsuit against a medical reporter who submitted an open records request. If no one on the outside knows how serious its problems are, no one can hold it sufficiently accountable. The situation is such that one family was advised to get treatment at the University of Michigan, due to its policy of full disclosure and thus its superior care. Chandler Medical Center’s lack of disclosure may be traced to decisions by the hospital’s board of trustees, rather than federal privacy laws or other claims.
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In 2010, a man filed a nursing home neglect lawsuit against a West Virginia nursing home following the death of his mother in 2009. The woman stayed at the facility for 19 days, during which time she allegedly fell several times, was not given enough food or water, and lost 15 pounds. She died 18 days later in Hospice. Based on the information presented during trial, the jury awarded the woman’s estate $91.5 million.

Attorneys for the nursing home asked to have the amount reduced based on a state law that caps non-economic medical malpractice awards at $500,000, but the victim’s attorney argued that nursing homes were not covered by the award cap law. The judge ultimately decided the medical malpractice cap did apply to a small portion of the award and reduced it to $90.5 million. After the verdict and award reduction, defense attorneys still requested a new trial, arguing that the company’s finances were grossly misrepresented during the trial, making it look like its income was much greater than it really is. But the circuit judge denied their request for a new trial, and the case is now headed to the West Virginia Supreme Court.

The defense is hoping to convince the high court that the nursing home is covered by the Medical Professional Liability Act (MPLA), which was enacted in West Virginia in 1986 and amended in 2002 in response to a lack of malpractice coverage available to medical professionals in the state. This law limits the amount a victim can be awarded for non-economic damages in a medical malpractice case. Ever since MPLA was enacted there has much debate on whether or not nursing homes are covered since they are not necessarily medical professionals. The State of West Virginia is in the process of passing a new amendment that specifically includes nursing homes under the MPLA, which proponents of the bill say is what was intended when the original bill was passed over 20 years ago.
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Because of the slow economy, many Kentuckians have lost their jobs and the health insurance that came with their employment. Their unemployment has also left them unable to purchase their own health insurance, which leaves them uncovered. So what happens if they have a medical emergency and have to go to the hospital?

Thanks to the federal government, in many emergency situations hospitals are not allowed to refuse treatment because of the patient’s inability to pay. The Emergency Medical Treatment and Active Labor Act (EMTALA) was enacted in 1986, and has been revised throughout the years. The basic premise is that if someone has a medical emergency and that their health is rapidly declining or their life is at stake, the medical facility they go to has to treat them, even if they cannot pay. This act also covers women who are in active labor. The treating hospital decides what constitutes a medical emergency, and some hospitals may attempt to find some reason to avoid treating someone who is not able to pay so they are not stuck with unpaid debt. Other hospitals will treat even if they think it is not an emergency so that they do not have to worry about negative consequences if the patient’s condition worsens because of non-treatment, such as a medical malpractice or wrongful death lawsuit.

In a recent case in Louisiana, a man went to one hospital after suffering a heart attack. He had a procedure to unblock one of his arteries, but it was decided that he needed a heart transplant. While waiting for the transplant, a device was to be implanted at a different hospital to help keep him alive. He was transported to the other hospital for the surgery, then was told they wouldn’t perform the surgery because he didn’t have a way to pay for it. In the interim, the patient’s health declined, and he eventually passed away. His family members have filed a wrongful death suit against the hospital claiming they should have done the procedure regardless of his ability to pay because the victim’s life depended on it.
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