Kentucky Injury Attorney Blog

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.

Continue reading "$90 Million Nursing Home Neglect Judgment Being Challenged" »

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.

Continue reading "What the Emergency Medical Treatment and Active Labor Act Means to Kentucky Residents" »

In 2012, hundreds of people became ill and 46 people died as a result of tainted medication. The problem was traced back to a compounding facility in Massachusetts that has since closed. Steroid injections given to people with back pain had been contaminated and caused a meningitis outbreak that affected patients in 20 states. Shortly after the source of the outbreak was discovered, the Massachusetts Department of Health started doing surprise health inspections at the other compounding facilities across the state. Their findings, released in February 2013, were surprising and a little scary.

Inspectors visited 37 of these specialty pharmacies and discovered deficiencies at all but four of them. That means there were issues at 33 of the companies. Of this number, 11 had violations so serious that at least parts of their operations were temporarily shut down. One company voluntarily surrendered its license, and the other 21 had more minor violations and were allowed to stay open. Officials were quick to point out that this is not a one-state issue; Massachusetts just happens to be the one state that did these inspections. Some states don't even require their compounding facilities to comply with the guidelines checked by the inspectors in Massachusetts.

While none of the problems discovered were as bad as those found at the facility that caused the outbreak, it is still good that the issues were found and will be corrected. The state has dedicated funds to pay for more routine inspections of compounding pharmacies, and hopefully other states will follow in its footsteps.

Many victims of the meningitis outbreak have filed product liability lawsuits against the now-defunct compounding pharmacy, and the families of some of the victims who died have filed wrongful death claims. But because the company is no longer in business, it is unclear how much anyone would be awarded. Some of the victims may have also filed medical malpractice claims against the medical personnel that administered the tainted injections, but it remains to be seen if any of them will be held accountable.

Continue reading "Health Inspections Find Numerous Issues at Most Massachusetts Compounding Facilities" »

On Monday, November 5, 2012, the Indiana State Department of Health announced that 51 Indiana residents have been infected with fungal meningitis and the death toll rose to four victims. Nationwide, the total number of people sickened stands at 409, and 30 people have died.

How did this epidemic start? Investigators are not sure how the tainting occurred, but they do know that the drugs were manufactured at a drug company in Massachusetts called the New England Compounding Center. The contaminated drugs are steroids that are injected in patients to help relieve pain. The majority of the people who have fallen ill were suffering from chronic back pain and the drug was injected into their spine to provide some relief. An additional 10 people who had the injections in other places, such as hips or elbows have contracted peripheral joint infections, but there have been no deaths reported.

In an attempt to figure out how this happened, Congress has subpoenaed one of the owners of the drug company. Attorneys representing the drug company are saying there are too many differing state and federal laws regarding pharmacies and drug manufacturers and that their client has done nothing wrong. In the meantime, the number of lawsuits continues to grow.

In Indiana, at least one wrongful death lawsuit has been filed by the family of a man who died after receiving an injection that was contaminated by a fungus. They hope that the lawsuit will answer the question of how these dangerous drugs were able to be sold and administered to patients, including their lost loved one. They are seeking compensatory damages for lost income, loss of companionship, and medical and burial expenses. The lawsuit also request punitive damages, which are commonly included in medical malpractice and wrongful death cases. This type of damages is meant to cost the company or individual at fault enough additional expense to deter them from acting in a similar manner in the future. In this case, the drug company, if it is even allowed to reopen for business, will hopefully determine what caused the contamination and take whatever measures are necessary to keep this type of outbreak from occurring again.

Continue reading "Indiana Residents Still at Risk for Meningitis Infection from Tainted Steroid Shots" »

In an unusual twist in the world of medical malpractice law, a woman from Kansas has filed a lawsuit against a hospital in Pittsburgh, Pennsylvania that never provided her medical treatment, and that she has most likely never even seen. The woman was admitted to the Hays Medical Center in Kansas in 2010 for treatment at the heart center.

She needed a pacemaker. She encountered numerous medical personnel during her admission, never suspecting one might give her an incurable disease.
In August 2012, the patient received notice from the Kansas hospital that one of their former employees had hepatitis C, that she may have been infected during her pacemaker procedure, and that she should be tested. The test came back positive. She and her husband have now filed a medical malpractice lawsuit against the University of Pittsburgh Medical Center (UPMC) and two staffing companies. How they came to sue a hospital in Pittsburgh over something that happened in Kansas is something one might expect to see on TV crime show.

Before coming to Kansas, a medical technician who worked at UPMC allegedly was stealing narcotics for his own personal use. He was caught with a syringe in his pants and was terminated in 2008. The hospital did not alert the police because they did not think there was enough evidence against him to press charges. The man went on to work at hospitals in several other states before finally being arrested in July, 2012 in New Hampshire. Along the way, he contracted hepatitis C and is accused of infecting 31 people at a New Hampshire hospital with the disease while attempting to steal fentanyl. After his arrest, every patient he might have come into contact with was notified that they may be infected.

Continue reading "Woman Files Medical Malpractice Lawsuit against Hospital That Didn't Treat Her" »

Advances in medical technology are amazing and can provide great benefits to patients. Unfortunately, sometimes the products created to help people can end up causing more harm than good. In this type of situation, victims can seek compensation not only from the doctors or hospitals involved in the procedure, but also the company that created and marketed the product.

One medical product that is under intense scrutiny right now is a mesh that is implanted in various parts of the abdominal area to treat bulging organs, called pelvic organ prolapse (POP), or incontinence due to weakened tissues around certain organs. In 2011, the FDA updated its report on the use of vaginal mesh implants. The update states that serious complications are more frequent than initially thought and that it is unclear whether surgery that includes the mesh implant is any more effective than the traditional method. Between 2008 and 2010, the FDA received 2,874 reports regarding medical issues associated with the vaginal mesh implants including "mesh erosion through the vagina (also called exposure, extrusion or protrusion), pain, infection, bleeding,...dyspareunia,...organ perforation, urinary problems... recurrent prolapse, neuro-muscular problems, vaginal scarring/shrinkage, and emotional problems." In January, 2012, the FDA told numerous manufacturers of this product to perform a three-year study to confirm it is safe and effective.

Hundreds of victims have filed medical malpractice lawsuits claiming these implants are causing additional medical issues. One case has already gone to trial and been decided by a jury. The victim had claimed that her vaginal mesh implant that had been manufactured by C.R. Bard Inc. caused chronic pain and incontinence and that she had endured nine surgeries to try to fix the problems caused by the implant. The lawsuit, which was filed against both the manufacturer and the doctor who performed the surgery, alleged that the company had not thoroughly tested the product before selling it, despite the fact that the FDA had approved it. The jury determined that the manufacturer was 60 percent responsible and the doctor was 40 percent responsible. The victim and her husband were awarded $5.5 million for pain and suffering, medical expenses, and loss of consortium.

Continue reading "Victim Awarded $5.5 Million in Medical Malpractice Lawsuit over Mesh Implant" »

For those who already dread a trip to the dentist, here is one more reason to avoid making the appointment. According to a woman from Jessamine County, her dentist dropped a tool in her mouth and she reflexively swallowed it.

According to a medical malpractice lawsuit filed in Fayette Circuit Court in Kentucky, the woman was having part of her dentures cleaned when the tool allegedly slipped out of the dentist's hand. The dentist encouraged her to attempt to regurgitate it, which she was unable to do. The patient claims the dentist told her to have a chiropractor take and x-ray, so she did and brought them back to him. The dentist then told her to eat a lot of fiber and allow the tool, which the lawsuit describes as a screwdriver, to pass naturally.

About 30 days later, the tool had still not appeared and she was experiencing some pain, so the woman went to Saint Joseph's hospital and ended up having to have an appendectomy to have it removed. The lawsuit filed on her behalf claims the dentist was negligent because he did not have the tool secured in any way and he allowed it to drop down her throat. The dentist's response to the lawsuit says the tool was not a screwdriver, that he did not lose control during the procedure, and that he encouraged her to go to the University of Kentucky emergency room, but the patient refused.

The lawsuit, which the dentist would obviously like to have dismissed, is asking for damages for several reasons. Compensation for pain and suffering is commonly requested in medical malpractice lawsuits. The patient in this case had to endure abdominal pain, surgery, and a recovery that all would not have occurred if the tool had not been dropped into her during the procedure. Her suffering may also include mental distress from worrying about the tool being lodged in her and what damage it might be causing. She has also requested money to cover the medical bills that resulted from having the x-rays done and her surgery and stay in the hospital. The lawsuit also claims that her ability to work and make money was also affected by the dentist's negligence. Even though she was 71 years old when the suit was filed, it is entirely possible that she was still working at the time of the incident because she needed the income.

Continue reading "Dentist Allegedly Drops Tool down Patient's Throat, Kentucky Medical Malpractice Lawsuit Filed" »

In a recent case in Florida, a man was infected with flesh-eating bacteria through an infected needle at his doctor's office. Not only did the doctor provide the needle that infected the patient, but he also failed to notify the patient about the infection and did not instruct him to go to the hospital. When the patient tried to file a medical malpractice suit against the doctor, he discovered he had signed an arbitration agreement that prohibited him from filing a lawsuit.

Even though this case was in Florida, this situation could affect Kentucky residents as well. The following are some questions and answers about these arbitration agreements.

Q: What is an arbitration?

A: An arbitration is a hearing used to solve a dispute between two individuals. Rather than being argued in a courtroom before a judge and jury, both sides present their case to a panel of supposedly unbiased arbitrators. Oftentimes the panel is made up of experts selected by both parties.

Q: What is a medical arbitration agreement?

A: A medical arbitration agreement is a document signed by an individual that requires them to handle any dispute with the doctor or medical facility through arbitration rather than filing a lawsuit in court. In the case above, when the patient went to his doctor for a steroid shot, he signed an arbitration agreement saying he could not sue the doctor in court for medical malpractice. It also stated that the patient could not be awarded more than $250,000 in damages if the arbitrators ruled in his favor. This type of limitation may not be binding because it may conflict with state laws regarding caps on damages.

Q: What if I sign a medical arbitration agreement without reading it?

A: While this situation is evaluated on a case-by-case basis, it appears that most courts are upholding the agreements even if the patient states he didn't read it before signing. In the case above, a judge ruled that the agreement is binding even though the patient said he didn't read it because the agreement was clearly written and stated in large letters at the top that one should not sign it without reading it first.

Continue reading "Questions and Answers about Arbitration Agreements for Kentucky Residents" »

Norton Hospital is located in Louisville, Kentucky and serves thousands of Kentucky residents every year. Medtronic is a large medical device company located in Fridley, Minnesota. What these two companies have in common is a medical malpractice lawsuit that has been filed against them.

A Louisville, Kentucky woman had surgery on her spine in 2006 at Norton Hospital. The hospital used a product from Medtronic called Infuse. Infuse is a bone-graft device used in certain spinal surgeries. A liquid bone protein is put on a sponge in a little crate between vertebrae. The liquid then solidifies into bone. The patient was having spine surgery, but not the type that Infuse has been approved for by the Food and Drug Administration (FDA). Surgeons at the hospital used it in her procedure anyway.
Unfortunately, as has been the situation in other cases, the bone continued to grow into her nerves, causing damage that has resulted in debilitating pain. She now has to stay in bed for extended periods of time and has trouble doing simple everyday tasks.

When a product is promoted and used in a way that has not been approved by the FDA, it is called "off-label" use, since what the medical professional is using it for would not actually be printed on the label of the medication or medical device. Oftentimes, medical professionals successfully use off-label treatments with the patient's consent. Other times it may lead to a dangerous treatment. However, companies such as Medtronic are not allowed to promote the product for off-label use. They can be fined millions of dollars if it is determined that this illegal activity has occurred. Unfortunately, to a multi-billion dollar company that could make billions on off-label use of one drug, the risk of investigation and fines may seem worthwhile. The off-label marketing can occur in many ways, including providing the product free to hospitals and medical offices or giving price breaks on other products to medical professionals that use a certain product off-label.

Continue reading "Woman Sues Kentucky's Norton Hospital and Medtronic for Medical Malpractice" »

Much of the discussion regarding medical malpractice today revolves around the "caps" being put on damages awards in certain states. People argue for and against these caps based largely on whether they are members of the medical profession or have been injured or known someone who was injured by a doctor, nurse, or other medical person.

One segment of the population is not affected by these caps because they are not allowed to file medical malpractice claims when they are injured by someone in a medical field. These are the same people who protect our freedom both in the U.S. and abroad. They are the members of the U.S. military.

Back in the 1950s, a soldier was killed in a barracks fire. His family sued the government for negligence that led to his wrongful death. The Supreme Court determined that the federal government could not be held liable for his death because he was an active member of the military. Because the soldier's last name was Feres, this decision by the Supreme Court, which has stood ever since, is called the Feres Doctrine. In defense of this doctrine, the government states that service members are compensated in other ways, such as through disability assistance available to veterans, pensions, and VA medical care.

This serves as little consolation to the most recent service member to challenge the Feres Doctrine. In July 2009, and Air Force airman went to a military medical center in California to have his gall bladder removed. During the surgery, a doctor cut his aorta, causing massive internal bleeding that was not corrected until he was transferred to a civilian hospital several hours later. By then, he had lost so much blood that both of his legs had to be amputated. He has so little of his legs left that his prosthetics are uncomfortable to wear and he spends most of his time in a wheelchair. He is only 23 years old. He and his wife have filed a medical malpractice lawsuit against the government requesting over $50 million in damages to compensate for lost income, pain and suffering, disfigurement, and loss of a marital relationship, among other things.

Continue reading "Why Those Serving in the Military in Kentucky Cannot File Medical Malpractice Lawsuits" »

In November 2010, a woman went to the Walgreens on Stony Brook Drive in Jeffersontown, Kentucky to get her prescription filled. She had been suffering with high blood pressure among other things and needed hydralazine to treat it. Unfortunately, the pharmacist that took the prescription from her gave her hydroxine, an antihistamine, instead. Because of the error, the woman did not receive the proper treatment for her high blood pressure for two weeks. By the time the error was found, she had to be hospitalized and she died soon after.

The victim's family filed a wrongful death lawsuit on February 15, 2012 in Jefferson Circuit Court. The suit claims that the pharmacist on duty did not counsel the victim on the medication. If he had, he would have noticed the mistake and the proper medication could have been dispensed immediately. Both the pharmacist and Walgreen Corporation are named as defendants in the lawsuit. Compensatory and punitive damages are being requested in the claim.

A wrongful death lawsuit can be filed for numerous reasons. In this case, the victim was treated improperly because she was given the wrong medication, which is considered a type of medical malpractice. Fatal car accidents caused by drunk drivers, drivers under the influence of drugs, or other distracted drivers can result in a wrongful death lawsuit. A lawsuit of this kind can be filed if someone is killed by faulty products or equipment. A good example of this situation is the stage collapse at the Indianapolis, Indiana fairgrounds that killed several people. Deaths from nursing home negligence or abuse can also be cause for a wrongful death lawsuit.

Wrongful death lawsuits are filed by the estate of the victim, most often a family member. The statute of limitations in Kentucky, which is how long the estate has to file suit, is a bit confusing. After a victim has died, the family has up to two years to appoint a representative and to file a lawsuit. Once a representative has been named, a suit must be filed within one year. So if a representative is appointed two days after the victim's death, the estate has one year and two days after the death to file a claim because a representative has been appointed. If the estate waits 18 months to find a representative, there are only six months left in which to file a claim before the two-years-after-death deadline.

Continue reading "Kentucky Woman Dies after being given Wrong Prescription at Pharmacy" »

A medical malpractice suit has ended in the victim's favor in New Albany, Indiana, and a new case has been filed in Taylor County, Kentucky. The first case altered a young woman's life forever, and the second case took the life of a woman completely.

A 21-year-old woman went to Floyd Memorial Hospital because of abdominal pain on June 5, 2003. She was told by Dr. William Garner that she required surgery the next day. Dr. Garner changed his mind about the surgery the next day, then left for the weekend. By June 8th, the patient's condition had dramatically worsened and she had emergency surgery to remove her bowel. She filed a medical malpractice lawsuit contending that if the doctor had continued to have her monitored in his absence, her need to have surgery would have been discovered sooner and more of her bowel could have been saved.

As a result of the delayed surgery, the suit alleges that the victim's life has been negatively affected. She finds it impossible to work. Her body processes food in 30 minutes, rather than the normal six to eight hours, so she is unable to obtain proper nutrition from the things she eats. She also suffers from bloating.

In January, 2012, the jury agreed with the victim and awarded her $1.5 million in damages.
The amount was reduced by the courts to $1.25 million due to a state limit on medical malpractice awards. Some may think a jury of the victim's peers may have not been fair because they are not in the medical profession. But Indiana requires all medical malpractice claims to be reviewed by a panel of three impartial doctors before they can go to trial, and all three agreed with the victim and allowed the case to go to trial.

Continue reading "Medical Malpractice Lawsuit Ends in $1.5 Million in Indiana, Another Begins in Kentucky" »

Since our September 9th post regarding doctors charged with medical malpractice still practicing, there has been a significant development. As a result of the Kansas City Star's article regarding Dr. Tenny's most recent medical malpractice settlement, the Department of Health and Human Services (HHS) has removed public access to its National Practitioner Data Bank. Even though the information was presented in a way to keep the doctors and hospitals involved in the suits anonymous, journalists were able to compare the database information with medical malpractice court records to determine which entries applied to Dr. Tenny.

The National Practitioner Data Bank became aware of the Kansas City Star's intention of using the data when Dr. Tenny's attorney contacted the association. The journalist reporting the story had contacted Tenny to give him an opportunity to comment on the findings; instead he contacted his attorney. The HHS attempted to persuade the Star to not run the story by mentioning fines that could be imposed for misuse of the data bank information. The Star went ahead with the article and included the information because it was public, not confidential.

According to the spokesperson for HHS, Martin Kramer, the information may be available to the public again in the future, but it is unclear when, or in what format the data would appear. He said federal law requires that the information be confidential and it will take time to review the data and determine how to present it so that it remains confidential.

Several groups, including journalism organizations and the Public Citizen's Health Research Group, have lobbied members of Congress to have the database made available to the public again. A letter submitted by the journalists states, "Without stories written by our members, it's fair to say that some unsafe doctors would continue to be practicing with clean licenses and patient protection legislation in several states likely would not have been enacted." A letter from the Public Citizen's Health Research Group to HHS said "The continued availability of this data is crucial to patient safety and research aimed at informed public policy decisions concerning malpractice, tort reform, peer review, and medical licensing."

Continue reading "Public Access to Physician Medical Malpractice Records Removed" »

A woman who went to a neurosurgeon in Kansas to have a pool of blood removed from near her brain never went home again. Instead, she was left paralyzed on one side and wasn't able to talk as a result of a brain injury that occurred during the operation. She never regained consciousness and died after several days. Her family filed a wrongful death suit. Her surgeon, Dr. Robert Tenny, was very familiar with lawsuits, having been sued at least 16 times previously for alleged mistakes. The family's $1 million settlement is the most recent part of the $3.7 million that has been paid over the last 20 years on behalf of Dr. Tenny. Had the victim or her family been aware of the doctor's previous suits, they could have selected a different physician and avoided this tragedy.

Most doctors will be sued at least once during their practicing years, but to be sued repeatedly or have multiple misconduct issues is unusual. Indiana doctor Mark Weinberg has been sued more than 300 times by patients alleging he performed unnecessary surgeries and billed them for services he never provided. One of his victims died in 2004 after he misdiagnosed her stage four throat cancer as nasal polyps and a deviated septum. The victim's family filed a medical malpractice lawsuit against Dr. Weinberg and was awarded $13 million.

In Kentucky, several doctors have been accused of and disciplined for sexual misconduct. Most recently Dr. Ashok Alur was arrested for sexually abusing a patient in his office. Even after his arrest, and two more victims coming forth, Dr. Alur is still able to practice in his Crestwood office as long as a chaperone is present. Kentucky medical malpractice lawyer Charles Miller, of Miller & Falkner, who represented one of the victims, states, "It's a threat to the community at large to allow someone who's admitted to sodomizing a patient to continue practicing medicine under any circumstances."

So how does one know if a doctor has been sued for malpractice or accused of misconduct? Information available to the public varies by state.

Continue reading "Are Doctors Charged with Medical Malpractice or Misconduct in Kentucky Still Practicing?" »

The Eleventh Circuit ruled earlier this month in the case Bradley v. Sebelius, that Medicare is not entitled to proceeds from wrongful death settlements.

In 2005, Carvonella Bradley settled a wrongful death claim against the nursing home that housed her father Charles Burke and his ten surviving children. The case resolved prior to the Bradley family having to file a lawsuit for $52,500, the insurance policy limits. The estate notified the Health and Human Services of the settlement and subsequent probate hearing.

At the hearing, the court awarded $787.50 to the HHS. The agency challenged the probate court's decision arguing the that Medicare Secondary Payer Manual would provide the superseding law.

The HHS then demanded that the Bradley estate pay over $22,000.00. Bradley paid the agency, but ultimately appealed to the federal district court. The court of appeals reviewed the case to determine, "Whose property is the settlement?"

Continue reading "Eleventh Circuit Decides in Favor of Families in Wrongful Death Case" »