Kentucky Injury Attorney Blog

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" »

Medical Malpractice lawyers are pleased with the August 18, 2010 opinion by the Court of Appeals of Indiana upholding the trial court's award of attorneys' fees and costs in a case brought under the Adult Wrongful Death Act ("AWDA"). The opinion of Hematology -Oncology of Indiana v. Fruits was written by the Honorable Judge May.

The appellant challenged whether the AWDA allowed for reasonable attorneys fees claiming that the "because the "express terms" of the AWDA "do not permit a claim for attorneys fees or litigation expenses." Hematology -Oncology of Indiana v. Fruits, Case No. 449A05-0910-CV-55649A05-0910-CV-556 (citing Br. of the Appellant, Hematology-Oncology of Indiana, P.C. (hereinafter "Hematology Br.") at 7.) The Appellate Court disagreed.

According to Judge May, the pertinent part of the AWDA, Ind. Code § 34-23-1-1, does not limit recovery to only damages for grief and punitive damages. Rather, the law reads that in addition to damages for grief and punitive damages, a plaintiff could be awarded damages which "may include but are not limited to the following." While attorneys' fees and costs are not enumerated in the statute, the statute does not limit recovery to only listed items of damages.

If you or a loved one has suffered because of negligent acts of a health care provider, it is important for you to speak with a medical malpractice attorney. A lawyer will be in the best position to evaluate what damages you are entitled to.

A 39 year old Kentucky woman went to Lourdes Hospital in Paducah to undergo a hysterectomy. While there, her Ob-Gyn, Dr. David Grimes, recommended that she also have a tummy tuck. The procedure Dr. Grimes used was so rare that he is the only physician in the U.S. that performs it using that procedure. The injuries resulting from the surgery were severe and Ms. Daniels suffered a bowel obstruction and a permanent large abdominal wound. After the surgery Ms. Daniels was restricted to the lightest of activity as any moderate amount of activity could lead to a hernia. Since this first surgery, Ms. Daniels had to endure ten additional surgeries and remained on constant pain medications and has been unable to work. After filing suit, the plaintiff sent a settlement package and demanded the one million ($1,000,000) policy limit of the doctor with American Physicians Assurance Corporation (APA). Dr. Grimes filed for bankruptcy during this time and thus was not liable for any judgment in excess of his policy limit. Moreover, because of the bankruptcy, the insurance company was in complete control of authority to settle the case with Ms. Daniels.

The first medical witness APA obtained for this case indicated that after learning the facts of the case , she was appalled at the care Ms. Daniels received by Dr. Grimes and that his conduct was "inexcusable and indefensible." Through the course of discovery and up to mediation, while the Plaintiff's medicals totaled $380,000 and her lost wages totaled $890,000, APA's highest offer was $75,000. It wasn't until the eve of trial that APA paid $650,000 on the case with Daniels reserving the right to sue APA for bad faith.

Daniels filed a separate action against APA alleging bad faith on the part of the insurance company. She alleged that despite the low offers, APA internal documents valued the case at more than $1,000,000. Daniels also alleged that when APA's own witness expressed her opinion on the case, APA knew or should have known that the actions of their physician were not defensible and liability was reasonably clear. Tactics of the insurance company were also addressed, specifically providing incentives to its adjusters to reduce payouts and increase the number of cases that were tried to a jury. Also noted by Daniels was the goal of APA to have its adjusters cut her claims by $3,479,277. APA offered their adjuster incentives to meet this goal.

Daniels won at trial on several counts of insurance bad faith concerning APA's delay in settlement, misrepresentation of the policy coverage, APA's failure to adopt reasonable standards and failing to act in good faith to effectuate a settlement. As for damages, the jury awarded Ms. Daniels $205,000 for the difference in the value of her settlement plus $145,000 more for emotional distress. The award for punitive damages was $3,479,277, equal to the incentive goal for APA's adjuster.

Unfortunately, cases like Ms. Daniels are increasingly common. Insurance companies use a variety of tactics to reduce the amount they pay. See our blog entry Kentucky and Indiana Insurance "Bad Faith" Tactics to Be Aware of and Avoid for some of the most common bad faith tactics of insurance companies.

If you have been injured, an experienced personal injury attorney at Miller and Falkner can work to get the settlement you deserve from the insurance companies and protect you from their bad faith tactics. Contact us today.