here is a link to our website to see if this works when I hit publish. http://nashandassociates.com
Woman undergoes mastectomy only to learn a week later, she never had cancer. Now another patient of same doctor claims the same fate.June 4, 2010
The Vancouver Sun reported that in 2001, Dr. Barbara Heartwell of the Hotel Deiu Grace Hospital in Windsor, ON performed an unneccessary mastectomy. Janice Laporte was the victim of Dr. Heartwell’s disfiguring mistake.
Ms. Laporte underwent a mastectomy in September of 2001 , and was told just one week post-operative that she never had breast cancer. Ms. Laporte’s case details are protected by a confidentiality clause; her case was settled soon after filing suit in 2002. Ms. Laporte told the Canadian Press, after a second patient came forward:
“It’s bad enough to have to be told you have cancer or to have a mastectomy,” she said.
“That is devastating enough, but then to hear that it was done for no good reason just compounds everything.”
“At least things are being looked in to now,” she said. “It’s unfortunate that this has to happen for them to look into this kind of stuff.”
The second woman who allegedly fell victim to Dr. Heartwell’s “mistaken diagnosis” is Laurie Johnston, a middle-aged single mother of a teen daughter. Ms. Johnston claims she underwent an unneccessary mastectomy in November of 2009.
Ms. Johnston has filed suit with similar accusations to those of Ms. Laporte. “Heartwell performed ‘dramatic, disfiguring and invasive surgery’…” Since filing suit, Ms. Johnston has also taken her case public.
Hotel Deiu Grace Hospital claims it became aware of the lawsuit when a reporter inquired about details of the case. The hospital has since launched an investigation into Dr. Heartwell’s cases. Dr. Kevin Tracey stated during a news conference with the Canadian Press that:
“During the course of our investigation she indicated that in our review of her past cases we would find additional cases of concern”
Apparently, these “additional cases of concern” caused the hospital to widen it’s investigation to include over 10,000 pathology reports which were completed by Dr. Olive Williams.
Dr. Williams’ privileges were suspended in January; Dr. Heartwell voluntarily stopped operating in the early weeks of March. Both physicians have been reported to the College of Physicians and Surgeons of Ontario.
To prevent further such tragic events as happened to Ms. Laporte and ostensibly Ms. Johnston as well, a pre-surgery safety checklist was implemented into hospital practice in April. Deb Mathews, Ontario’s Health Minister, claims that of the items on the checklist, review of biopsy results are required prior to administering anesthesia.
A Windsor lawyer, Harvey Strosberg, predicts that Ms. Johnston’s case will never see the inside of a courtroom. Her case is strong and he predicts that she will likely reach a settlement agreement.
Simply put – it SHOULD never see ‘the inside of a courtroom. How tragic!
When the weather is warm, outdoor activities are the amusement. Expecting them to end in injury usually isn’t the case!
In Gwinnett County, GA, Roger McTaggart was injured in 2007 while riding his Yamaha Rhino recreational utility vehicle. Mr. McTaggart and his wife, Glenda, sued Yamaha Motor Corporation USA, which happens coincidentally to be located in Gwinnett County.
The McTaggart’s case is just one of over 100 cases that allege the Rhino recreational vehicles are unsafe. The Rhino vehicles are alleged to have latent stability defects which cause the vehicles to unexpectedly roll over.
Similarly, the McTaggart’s claimed early in their case that the stability defect caused Mr. McTaggart to unexpectedly roll his vehicle at a low speed and on relatively flat ground.
As my parents have now headed back to Florida from their Memorial Day Weekend visit up here to DC, a bit of nostalgia overtook me, and I decided to look at my old hometown paper online, Florida Today. The first article to catch my eye was a tragic story about a boating trip during the holiday weekend, gone terribly wrong:
Cyril Holley, 46, and his daughter, Madison Holley, 19, were riding in a boat when they were struck and killed by another vessel, which was carrying other family and friends near Disappearing Island.
Two other people were taken to nearby hospitals.
Witnesses told Local 6 that one of the boats appeared to jump over and crash on top of the victims’ watercraft.
I will tell you from first-hand experience that the waterways and ocean along the east coast of Florida are packed with boats of varying sizes on any given Memorial Day Weekend. Ponce Inlet (where this horrible incident occurred), an area on Florida’s east coast just south of Daytona Beach, is an area known for its significant boat population. What makes this story even more tragic, is that Ms. Holley was due to give birth in two weeks, and the unborn child’s father was also on one of the two boats involved in the collision.
An eyewitness briefly describes what he saw as the tragedy unfolded before his eyes:
“The larger boat was just jumping off waves,” said Ryan Yadav, who watched the collision from a nearby beach. “I think it just took too much speed on and went right over. Cut the awning right off.”
Our thoughts are with the families who lost their loved ones.
Brian Nash’s comment: For those of you who have been on our wonderful waterways of D.C. and Maryland, I would imagine you have your own tales of accidents and numerous near-misses. A year ago, I saw a father flying around the Bay in a speed boat in the shipping lane with his kids screaming for joy as they hung on for dear life in a plastic raft being towed behind. Jet skiers, drunks at the helm – they’re all out there. Enjoy the water, but for goodness sake, use some common sense. If you are a boater, you know how fast it can all go so wrong.
Despite the national headlines over the past decade or more regarding tobacco litigation, the state of Connecticut had never before seen a successful product liability action against a tobacco company. That is, until Barbara Izzarelli recently prevailed in her case against tobacco giant R.J. Reynolds. Law.com recently reported that a federal jury awarded Ms. Izzarelli $8 million as compensation for larynx cancer that she developed at age 36 and which she contended was caused by smoking R.J. Reynolds cigarettes for more than twenty years.
The case focused on R.J. Reynolds’ marketing strategy, primarily the company’s alleged efforts to specifically target the teen market back in the 1970’s when Ms. Izzarelli was a teenager and first began to smoke. Her attorneys, led by David Golub of the law firm of Silver, Golub & Teitell, alleged that R.J. Reynolds conducted marketing research on the smoking habits of youths as young as twelve and implemented various business practices directed at luring young people to cigarettes.
[Golub] contended that in the 1970s, after young smokers were attracted to flip-top boxes in which Philip Morris’ Marlboro cigarettes were sold, R.J. Reynolds developed new products to appeal to 14- to 20-year-olds. Golub further argued that those cigarettes were sold in popular teen hang-outs and at reduced prices.
While the jury found in Ms. Izzarelli’s favor, it did not absolve her completely of her own conduct in choosing to smoke for more than twenty years. The original verdict had been $13.6 million, but the jury found that Ms. Izzarelli was 42% at fault so the verdict was reduced to $8 million (Connecticut recognizes the doctrine of comparative negligence, meaning that a jury award can be reduced depending on whether, and to what extent, the plaintiff was negligent.). Still to be decided is the issue of whether R.J. Reynolds should be subjected to punitive damages, i.e., a monetary award intended to punish the company and deter others from engaging in similar conduct. Should punitive damages be assessed, the total award could potentially be as high as $24 million.
For Ms. Izzarelli, who will soon turn 50, this verdict was a long time coming. She was originally diagnosed with larynx cancer in 1996. She filed suit eleven years ago in 1999. According to her attorneys, she is currently “very disabled” and is unable to breathe through her nose or mouth. She instead uses a tube inserted in her throat. Because of her injuries, her diet is restricted to soft foods. Despite these limitations, Mr. Golub calls her “a remarkable woman to overcome these health problems and lead a normal life as much as she can.”
Despite the decade-long efforts to seek redress for her injuries, the verdict and the jury award are still not final. According to David Howard, a spokesperson for R.J. Reynolds, the company has promised to appeal the verdict.
“We’re disappointed in the decision in this matter,” said Howard. “We have several grounds for appeal and we are confident in our defenses going forward.”
Early comments by the defense indicate that R.J. Reynolds will challenge the trial court allegedly denying it the right to put on a ‘full medical defense’ in which Reynold intended to show that it was improbable that the plaintiff’s injuries were related to her smoking. The second issue mentioned post-verdict was the perceived error by the trial judge allowing “all youth marketing evidence despite the fact that, before trial, one of the plaintiff’s claims was dismissed because there was no evidence that the plaintiff was affected by any quote, unquote youth marketing.”
We will keep you posted on any developments in this case.
Couples all over the nation find that they are unable to conceive naturally and must turn to fertility clinics for help. No couple expects that when they learn they are going to have a child, it’s not going to be their own! This was the sad reality for Carolyn and Sean Savage of Sylvania, OH, as reported by the New York Post.
After many miscarriages and heartbreaks, the Savage’s finally turned to in-vitro fertilization in 2009. Carolyn soon learned that the process had worked, but was told that it would be her last pregnancy due to prior complications.
Nearly 100 miles away, Shannon and Paul Morell of Troy, MI were also employing in-vitro fertilization as a means of adding an addition to their family. They would soon receive the devestating news that their embryo’s had successfully been implanted… but within Carolyn Savage.
…they got an urgent call from their fertility doctor.
“I’m so sorry, Shannon, but there’s been a terrible incident in our lab,” he said. “Your embryos have thawed.”
But it didn’t end there.
“Your embryos were transferred to another woman,” the doctor said.
Shannon was stunned. “Is she pregnant?” she managed.
Shannon, whose maiden name was Savage, had lost her embryos to Carolyn and Sean Savage. The lab accidentily filed the Morell’s embryo’s in Shannon’s maiden name, and provided them to another couple. Carolyn Savage had been robbed of the chance to ever carry her own child again.
Having also been informed of the mix up, Carolyn Savage was presented with two options: she could terminate the pregnancy or carry the child to term and give it to it’s biological parents after the birth. Due to strong religious beliefs, Carolyn decided to carry the baby to term and return it to it’s parents afterward.
The Morell’s and the Savage’s agreed to a formal meeting April 27, two months into the pregnancy. Carolyn and Shannon agreed to remain in contact throughout the pregnancy and decided upon the name, Logan, once the baby boy’s gender was confirmed.
On September 24, 2009, baby Logan Savage Morell was born at Mercy St. Vincent Medical Center in Toledo. Shannon and Paul drove to the hospital immediately after hearing that Carolyn was in labor, still saddened that another woman was giving birth to their baby boy.
“I wouldn’t say jealousy, but there was sadness that I couldn’t be there for my son and experience the first moments of his birth. And there was guilt that another woman was happy to go through a C-section for me,” Shannon said.
The arrival of baby Logan presented many emotions for both the Savage and the Morell families. The Savage’s made it clear early in the pregnancy that they expected nothing more than a few updates throughout Logan’s life.
“Of course, we will wonder about this child every day for the rest of our lives, and we have high hopes for him,” Carolyn said. “But they’re his parents, and we’ll defer to their judgment on when or if they tell him what happened and any contact that’s afforded us.”
CNN interviewed both Carolyn and Sean Savage; the couple revealed their feelings regarding the entire experience.
Since Logan’s birth, the families have remained in contact. Over Christmas, the Morell’s and baby Logan made the 100 mile journey to visit the Savage’s so that baby Logan could finally be introduced to his surrogate family.
Shannon Morell acknowledges that the Savage’s will always have a role in Logan’s life.
“I think for the rest of his life, he should always acknowledge [Carolyn], on Valentine’s Day, Mother’s Day. He should always think of her because if she hadn’t done the right thing, he wouldn’t be on this earth,” Shannon said.
The couples hope to one day be able to explain the complicated story of how Logan came into his wonderful existence.
So what happens now? The Savages’ still have five frozen embryos; unfortunately, Carolyn will be unable to carry another child. The couple is looking into a gestational carrier in hopes to still make an addition to the family.
In-vitro fertilization has led to over 40,000 successful live births since it’s first record of success in 1978. When learning of success, can you even imagine the emotional effects of being told that your success will result int he birth of someone else’s child? What further actions can be taken to prevent these ghastly mix ups?
Yes, it is really getting hot out there this week!!! Coming from Florida to DC last year, I thought “OK, so it will not get nearly as hot up here, or at least not as early in the summer.” Yes, I was wrong. This thought brought me to thinking about some of the fun things to do in the summer, but also the dangers for our little ones during this time if we are not extra careful. Lo and behold, I found this article today, courtesy of the Dallas Morning News and reprinted by the Kansas City Star:
Emergency-room professionals have their own name for the long, lovely, lazy days that kids look forward to in summer: trauma season. Because that’s when hospitals see a spike in drownings and heat-related accidents.
The article discusses several myths and related facts associated with those myths. Here are a few samples from the article:
MYTH: Pool parties are safe as long as adults are around.
FACT: Many drownings happen when adults are close by. The problem is too much commotion. The key is to have a designated adult watching the water because that is where the danger is. The pool should be free of excess toys that can block the view of the water.
MYTH: Floaties keep little ones safe in the water.
FACT: Floaties are designed for fun, not safety. They give a false sense of security, can deflate and can slip off.
MYTH: The kids will be fine in the pool for the short time it takes to answer the phone or get a cold drink.
FACT: In a minute, a child can go under water. In two or three minutes, the child can lose consciousness. In four or five, the child could suffer irreversible brain damage or die. According to the Centers for Disease Control and Prevention, drowning is the second-leading cause of unintentional, injury-related death for children 1 to 14 years old, second only to car and transportation-related accidents.
The article states several other myths and facts, which include the hazards of leaving children unattended in cars and car seats, as well as sun exposure and dehydration. We encourage you to read the article in its entirety. Let’s all have a safe summer out there, please!!
Understanding the term – ‘confidential settlement agreement’ – is the easy part. What’s the ‘sticky wicket’ of this ever-growing form of settlement agreement? – the conflicting interests of the parties’ privacy concerns versus the public’s right to know.
Let’s start by providing you with the somewhat typical, generic language used (in some form or other) of such provisions in a settlement agreement:
Confidentiality: The Releasing Party (Releasor) agrees that neither he nor his attorneys shall reveal to anyone, without prior written consent of the Party Being Released (Releasees), the facts or any of the terms of this Settlement and Release Agreement. Releasor will not disclose the identities of the Releasees, whose conduct was the subject of this lawsuit. It is further understood and agreed to by the parties to this Settlement and Release Agreement that no part of this non-disclosure agreement shall be construed to prohibit counsel from making reasonable and necessary disclosures to carry out the administrative and ministerial tasks incident to this settlement.
Needless to say, these can be quite specific and many times are aimed at prohibitions of disclosure of not only the fact of settlement but also any specificity regarding the identity of the settling party and the amount of the settlement – basically prohibitions against disclosing any identifying information to the public and even more specifically to any form of media outlet. It’s one thing for Client Jones to tell his neighbors that he just settled his lawsuit for thousands or millions of dollars; it’s quite another when a settling doctor or hospital sees their name splashed across the print or online headlines of local media outlets.
The Settling Defendant’s Interests:
This is perhaps the easiest to understand from the viewpoint of the person who agrees to pay settlement monies to the plaintiff who sued them. In the context of medical malpractice cases, no health care provider, especially a physician, wants their good-name/reputation tarnished by news of having settled a malpractice case. Since the reasons for agreeing to a settlement might be avoidance of a verdict in excess of the physician’s malpractice insurance, it could be argued that in such instances it is simply not fair to broadcast the fact that the physician settled because they knew they had done something wrong which hurt one of their patients. Keep in mind, that in settlement agreements there is usually a statement that the settling party – e.g. the physician sued for medical malpractice – denies all allegations of wrongdoing.
That being said, what about those instances – which are not the minority in our case load – in which the conduct of the health care provider does constitute a violation of the standard of care – aka medical malpractice/negligence? Why shouldn’t the public be aware that Dr. Smith did render bad care that caused serious harm? Was this just a ‘bad day’ for Dr. Smith in the operating room or office or a pattern of poor care? Doesn’t the public have a right to know this?
Dr. Smith’s counsel will argue, as trained to do, that there is a defense to every case. In my 35 years of experience, this is often the case. Some defenses are better than others; some are flat out lame. Can’t the public decide on their own? Don’t they have a right to make that judgment? Some would argue they don’t since they don’t possess the expertise to understand the many nuances that go into these settlement decisions. Are they right? It seems you will never get the chance to decide since you will never know about what happened due to confidentiality agreements.
The Plaintiff-Patient’s Interests:
It is unfortunately the case that when a number of our client’s wins a large amount of cash in settlement or verdict, they fear their past and present friends and relatives will then come out of the woodwork. I liken it to professional sports figures whose coterie of friends are at best ‘hangers-on’ for the money and good times.
People who have had to relive tragedies in their lives don’t want the pubic to know for a multitude of reasons. We have represented people whose parents didn’t even know (and to this day don’t know) that they had been in a lawsuit and even gone through a trial! We have always respected the client’s right to privacy. Does that trump the public’s right to be informed?
The Plaintiff Lawyer’s Interest:
What interest could the lawyer possibly have? – you ask. Since this is my bailiwick, permit me to answer the question – marketing. Have you had occasion to visit the websites or print media advertisements of any plaintiff lawyers recently. If you have, I suspect you have seen the crawl or large font posting of verdicts and settlements blasted across the screen/page. If you have a confidentiality provision, this probably should not be the situation. I say probably because some lawyers insist that the right to publicize ‘anonymously’ be crafted into the confidentiality agreement. Many likely do not have this ‘exception’ language but seem to have amnesia when it comes to this provision.
If you look at our website, you won’t see this form of advertising/marketing. Does this mean we haven’t settled a number of cases for large amounts of money for our clients? Hardly. Since the beginning of this year alone, we have settled a number of cases for millions of dollars, with the likelihood of many more to come – God willing! We have elected to respect our client’s right to privacy on the one hand. We have also determined that in some instances there will be no settlement if we put our firm’s interests of marketing ahead of the client’s ability to obtain a settlement, when the defendant is demanding confidentiality.
Do we have news accounts of past verdicts on our website? We do. Those cases went to trial and were deemed newsworthy enough by local media to report on the verdicts regardless of our position on marketing. They were in the public domain; we took the marketing advantage. Hey, we’re just being lawyers. Have these cases gone to appeal or settled post-verdict? You’ll never know.
Have we settled cases for millions of dollars? Well, you’ll never know that either. We do understand our client’s rights to privacy and right to have their interests in obtaining a settlement ahead of our marketing interests.
So what is the answer?:
From the viewpoint of the advocates of the public’s right to know, they can effectively argue in most instances that the client doesn’t have a privacy right once a lawsuit is filed. This is a matter of pubic record. Anyone can go to the courthouse in your county or state (in the case of the District of Columbia – the Superior Court) and ask to see the court files – absent an order sealing a record, which is by far the exception rather than the rule. Even in situations where a case settles under a confidentiality agreement, if one looks at the court docket of any given case, you can trace the history of a lawsuit. When you see a dismissal, do you not understand that absent the case being dismissed in favor of a defendant on motion or by court order for failure to prosecute, the case most likely settled? What happened to the non-disclosure of the fact of settlement or the likely parties to the settlement?
Are there other means to determine if a medical malpractice case has settled? If so, for how much? Well there are and there are not. Were you aware that whenever a doctor settles a lawsuit he/she is reported to the National Practitioners Data Bank? Well, all the information one could ever want is stored there, but the public has no access to this data bank – at least in terms of getting information as to a specific healthcare provider. The following is the express statement on the NPDB’s FAQ page:
The Data Banks are prohibited by law from disclosing information on a specific practitioner, provider, or supplier to the general public. However, persons or organizations may request information in a form that does not identify any particular healthcare organization or practitioner for research purposes.
Well, there goes that potential source of right to know.
What about the local state licensing agencies? Let’s take Maryland, for example. The entity that controls the licensing and disciplining of physicians in the state is known as the Maryland Board of Physicians. It also has a website, which, quite frankly, is much more transparent and informative than many and certainly more informative than the NPDB. By going to the “Search Practitioner Profile” link, you can type in a doctor’s name and find out, among other things, if there has been any disciplinary action against that physician for the past ten years. Maryland should be applauded, in fact, for its access to information on physicians. Could it do more, perhaps. That’s for another day.
In the District of Columbia, did you know you can access similar information? I invite you to undertake this exercise. Don’t be thrown-off when you do your Google, MSN or other search engine inquiry and see the District of Columbia Board of Medicine, but then you find you have been linked to the California Department of Consumer Affairs – for the Physical Therapy Board of California. Must just be a broken link! Transparency may also have a different definition in D.C.
In many of our posts we urge our readers to be informed consumers when it comes to their healthcare. Is one of the ways to become educated about your doctor or the hospital to which you planned to be admitted the ‘best’ or ‘right’ healthcare provider for you to do such a search? We think so – at least in part. Being sued or even settling a case does not necessarily mean a physician or hospital is a bad doctor or a bad hospital. It may, however, particularly in the case of the physician, be a place you may care to start your query.
So, what is the public’s right to know in terms of confidential settlement agreements? Does the public’s (i.e. your) right to know trump that of the patient/plaintiff or the healthcare provider/defendant? Should there be a restriction on the use of these agreements – even if that also means a prohibition on the lawyer’s right to publish these settlements on their websites or ads?
I encourage and welcome your thoughts and comments. Please take a moment of your time and share these with our community of readers.