IV infiltration leads to $1.5 million verdict when patient loses thumb.

Recent news from Georgia (where the state’s cap on non-economic damages was recently overturned): A patient, Johnnie Jackson, age 47, was awarded $1.5 million for pain and suffering in addition to recovery of his medical expenses, for injuries he sustained when delay in treating an infiltration of his IV ultimately led to the loss  of his thumb.

Mr Jackson presented to Coffee Regional Medical Center for complications resulting from a pancreatic condition on April 30, 2005. Mr. Jackson had a known history of diabetes and chronic pancreatitis.

Upon presentation, a nurse administered Phenergan and Demerol through an IV, which had been inserted into Mr. Jackson’s right wrist. At approximately 3:00 a.mm on the morning of May1, Mr. Jackson complained of swelling and pain at the site of the IV causing it to be removed 45 minutes later.

After nine hours of complaints, Mr. Jackson was examined by his physician, who found that the medications had leaked into the surrounding tissues. Mr. Jackson’s physician elevated the arm in a failed attempt to reduce the swelling. On the afternoon of May 2, Mr. Jackson was transported to the South Georgia Medical Center for advanced treatment.

A pretrial order revealed that Mr. Jackson was transported to  the medical center for the treatment of a blood clot that was found near his thumb.  During Mr. Jackson’s 24 day admission at the medical center, he underwent a multiple surgeries by an orthopedic surgeon, who was unable to salvage Mr. Jackson’s thumb.

Mr. Jackson’s attorney, Laura Shamp, filed suit against Coffee Regional and five treating nurses in 2007 alleging that Mr. Jackson was unable to work due to frequent hospitalizations caused by diabetes and pancreatitis, but that:

…the hospital gave him a ‘job’ of living without his thumb for the rest of his life, so he should be paid for it.

“Their defense was that the IV did not infiltrate and that even if it did, that was not what caused the loss of his thumb,” said Shamp. “They said it was simply that strange things happen and this was a coincidental blood clot that ended up contributing clotting at the same time.”

With the plaintiff’s permission, the named nurses were dismissed with the hospital remaining as the sole defendant. The Coffee County jury awarded Mr. Jackson $53,026 for medical expenses and $1.5 million for pain and suffering.

Medical Malpractice: Newborn Carbon Dioxide Poisoning Results in Verdict of $16.5 Million

Dwight Peterson, Army Staff Sgt., and his wife Shalay presented to Tripler Army Medical Center in Honolulu, HI for an elective cesarean section in January of 2005. Their son Izzy was born a healthy child, but now requires 24 hour care.

The Star Bulletin reported that within just one minute after the birth of Izzy Peterson, pediatrician Army Major Danielle Bird mistakenly administered carbon dioxide, used for stomach surgery, to the healthy newborn. It was not until nearly 42 minutes had passed, and the carbon dioxide tank was almost empty that someone realized this tragic error. Oxygen was supplemented, but by the time this intervention was attempted, Izzy had sustained irreversible brain damage.

Soon after Izzy’s birth, the Peterson family relocated to San Antonio, TX where they have obtained specialized care for Izzy. Izzy is fed through a gastrostomy tube and breathes through a tracheostomy, which he will do for the rest of his life.

Rick Fried, the Peterson’s attorney, filed suit in which it was alleged that Major Bird, a pediatrician doing her fellowship in neonatology, should have noted the difference between the carbon dioxide and oxygen tanks prior to administration. You think?!

Bird…would have had to adjust the upright regulator of the free-standing cylinder clearly labeled carbon dioxide, different from the clocklike regulator attached to oxygen tanks…

Attorneys for the defense tried to claim early on that Izzy had been born with some type of defect; an at-home video of Izzy’s birth as a healthy baby boy proved otherwise.

“You see him take his hand, trying to brush it (the carbon dioxide) away,” Fried said. “Even at birth he knew it wasn’t good for him.”

Although severely brain damaged, Izzy maintains self awareness, can track movement with his eyes and recognizes and responds to his parents. Izzy can feel pain and kick a ball, but will never perform as an average child.

Not present for the decision, the Petersons were informed that federal judge, David Ezra, ruled in favor of the family. Dwight and Shalay Peterson were awarded $16.5 million, which will help to pay for Izzy’s extensive medical care.

Tripler’s Maj. Gen. Carla Halwey-Bowland said in a news release: “Tripler Army Medical Center accepts responsibility for this tragic incident and respects the decision made by the Honorable David Ezra. Our command and well-trained staff are committed to doing whatever it takes to ensure an incident similar to this never happens again, such as improvements in medical gas safety — how they are labeled and handled and staff education.”

Tripler Army Medical Center is the largest Army hospital in the Pacific basin. It contains over 200 hospital beds and provides medical care to almost 400,000 eligible patients. The Medical Center is accredited with providing the best medical care in it’s region, but even in the best hospitals, mistakes can be made.

Malpractice Verdict: NY jury renders verdict in excess of $60 million for brain damage from dystocia

Mary Swanson gave birth to Michael Swanson, October 10, 2003 at Northern Westchester Hospital in Mount Kisco, NY. While giving birth, Mary Swanson was found to have dystocia,  a condition in which the child’s shoulder becomes entrapped by the mother’s pubic bone.

Mrs. Swanson and her husband, Bruce, alleged that the obstetrician, Dr. Carla Eng-Kohn, and the hospital’s staff were negligent in properly performing Michael’s delivery.

Plaintiffs’ counsel also claimed that dystocia was a result of a nurse’s mismanagement of the delivery. Dr. Eng-Kohn was not present when the nurse initiated the pushing process. Swanson’s counsel contended that Mary Swanson’s unsupervised pushing led to the development of the dystocia.

The plaintiffs’ expert obstetrician also opined that eight or nine minutes passed before the dystocia was relieved, and the plaintiffs’ expert neurologist testified that the prolonged dystocia asphyxiated the baby. He stated his opinion that monitors indicated that Michael suffered two minutes of tachycardia, which is an abnormally fast heartbeat, and he suggested that the condition was an indication of distress. Plaintiffs’ counsel claimed that Michael was not crying when he was delivered and that the child’s face exhibited a bluish discoloration.

To complete delivery, excessive traction was applied to the baby’s head causing a brachial plexus injury and lateral medullary syndrome. The child’s residual injuries include moderate speech delays and the delayed ability to swallow and complications from aspiration pneumonia. Plaintiffs claimed Michael will need surgical intervention and/or need permanent residential care, intense speech, physical and occupational therapy.

Michael’s parents sought recovery of Michael’s past medical expenses, the cost of his future rehabilitative therapy, the cost of his future custodial care, his remaining future medical expenses, his future lost earnings, and damages for his past and future pain and suffering .

After hearing all the evidence, the jury found that Women’s Medical Associates was vicariously responsible for Dr. Eng-Kohn’s actions and along with the doctor, was assigned 75% of the total liability. Northern Westchester Hospital was charged with the other 25% liability. The Swanson’s were awarded a total of $60,939,847.00 for all damages.

St Joseph Stent Cases and Dr. Midei Back in the News – More Cases Revealed

The Baltimore Business Journal just reported online that St. Joseph Medical Center has announced that it is now finished its review of the controversial stent procedures performed by Dr. Mark Midei between May 2007 and mid-2009.

In a statement released to the Baltimore Business Journal, hospital officials had to correct an earlier estimate provided by the hospital’s CEO, Jeff Norman, this past April 19th, when he indicated that the number of unnecessary stent implantations totaled 538. The so-called ‘final’ number, according to the report, is now 47 more than the last figure or a total of 585 patients, who have now been notified that “their blockage may not have been so severe to warrant a stent implanted by Dr. Midei.”    

We have been covering this St. Joe’s stent fiasco since February 20th, when we reported that the US Senate was launching an investigation into this matter.  The news of the congressional investigation followed lawsuits by former patients and a class action filing against the hospital.  On March 10th, we posted a story about a news release of that day in which the hospital reported an additional 169 more patients had received similar notification of unnecessary stenting by Dr. Midei, bringing the number at that time to 538.  Today’s release by the Baltimore Business Journal, as noted, adds a new 47 patients to this list.  Will more ‘review’ yield even more patients, who were, by the hospital’s own admission, subjected to implantations for blockages that “may have not been so severe to warrant a stent…”?  (What lawyer wrote that language for the hospital’s news release?).

To explain the seemingly ever-growing list of patients, the hospital stated “that an initial count of the total number of flagged stent procedures performed by Dr. Midei was “incomplete but has been corrected.

Guess it’s good that they now have the number of  patients corrected.  It would have been a lot better had they gotten the situation corrected before all these patients were submitted to unnecessary treatment with its life-long consequences.

Study Finds Differences Among Doctors, Risk Managers in Admitting Errors – Joint Commission Resources – Answer: Just Tell the Truth!

The Joint Commission Journal on Quality and Patient Safety recently issued a report on how Risk Managers (those who handle claims in hospitals as part of their duties) vary from physicians in admitting errors.  The report was based on anonymous surveys of nearly 3,000 risk managers and roughly 1,300 physicians.

Some of the key findings from this survey were as follows:  

• Risk managers have more favorable attitudes about disclosing errors to patients compared with physicians
• Risk managers were less supportive of providing a full apology
• Risk managers expressed more favorable attitudes about the mechanisms at their hospitals or health care organizations to inform physicians about errors
• Both Risk Managers and physicians agreed that there is a lot of room for improvement in systems to report errors.

The news release issued by the Joint Commission then contains the following quote:

“Fulfilling patients’ expectations for full disclosure of medical errors remains a complicated process. Our data offer additional insight into the complexities of these conversations and reflect the evolving roles of stakeholders beyond the physicians involved in the error,” says lead author David J. Loren, M.D., Assistant Professor of Medicine, Division of Pediatrics, at the University of Washington, Seattle, Washington.

Why is it so complicated?  This past Friday, I reported on an article from the New England Journal of Medicine, in which the concept of acknowledging wrongdoing early in the process is central to current programs to minimize litigation costs and seek alternative methods of coping with “national tort reform legislation.”

If physicians and risk managers only had some idea of how many people we interview for potential claims and lawsuits, who are seeking legal assistance because they ‘just want to know what happened’ or who are just plain angry because no one would talk to them about what went so terribly wrong or even ,in some instances, flat-out lied to them about what happened, they might not need to do a study to conclude – there is a “lot of room for improvement.”

I know – it’s fear of lawyers that leads the health care industry to have such angst over just telling the truth.  What they don’t get is that we, the lawyers, would probably have a lot less people calling us to investigate their claims if someone had just taken the time to figure out what went wrong and told the patient and/or the family the truth.

Malpractice Wrongful Death Lawsuit by Couple Falsely Accused of Abusing Their Child Filed Against Children’s Hospital

Are there many things in this life worse than losing your child?

What if you lost two children?

What if you lost two children, you were wrongly accused of causing both of their deaths through child abuse, and one of the accusers in one of the deaths was the hospital that may have been able to prevent the death from ever even occurring?

The Dayton Daily News reports that may be what happened in the tragic case of Landen Shawen.  Before we get to that case, we will first briefly detail the death of ANOTHER one of the same parents’ children, approximately 3 years ago.  As reported previously back in October of 2006 by the Dayton Daily News in an article:

A Kettering baby whose death this summer was labeled suspicious by the Montgomery County Coroner’s Office died from natural causes, a coroner’s report shows.

Ethan Alan Shawen, who was 2 months old when he died Aug. 20 at Children’s Medical Center of Dayton, died from meningitis caused by an unknown organism, according to the report released Oct. 4. An autopsy showed no signs of child abuse.

As if this tragedy was not enough grief for parents Amber and Preston Shawen to have to suffer with, their second child, Landon, died a tragic death on March 31, 2009 at Children’s Medical Center in Dayton, Ohio, at 6 weeks of age, the very same hospital where their first child died.  The cause?  Here is a quote from the article:

On March 31, 2009, the couple’s 6-week-old son Landon died at Children’s Medical Center. Doctors accused the couple of abuse, and Children Services took custody of their 19-month-old daughter.

On June 5, the coroner’s office ruled that Landon died from venous thrombosis coagulopathy disorder, an easily treatable genetic disorder, which the lawsuit states is the same disorder that killed Ethan. Had the family been told of the neuropathologist’s report, Landon’s death could have been prevented, the lawsuit states.

The hospital’s current position, as posted in the article, goes as follows:  

Vicki Giambrone, a hospital vice president, said the hospital has a legal duty to report suspected cases of abuse.

“Dayton Children’s does not investigate these cases, nor do we accuse people or pass judgment,” Giambrone said. She declined to comment on the specifics of the lawsuit.

Note that the article states that the Shawens’ THIRD child, a 19 month old little girl, was taken into custody by Children Services after the hospital’s allegations.  How much more loss can one family take?  What a tragedy!

Cardiac Catheterizations Overused

According to an article published by WebMd, a recent study suggests that almost two-thirds of patients who undergo cardiac catheterizations do not have clogged arteries.

Researchers tracked about two million patients who had the procedure at about 663 hospitals across the nation between 2004 and 2008. Of the two million patients, researchers focused on about 400, 000 patients with stable chest pain and no previous history of heart disease. The study specifically excluded patients with a history of heart disease, angina, or heart attacks.  In this population of patients, about two-thirds did not have significant arterial blockage.

Cardiac catheterization is a commonly used invasive procedure to diagnose blockage in the arteries of the heart. The procedure is performed by inserting a catheter in an artery of the arm or the leg. The catheter is then guided into the coronary arteries of the heart.  At such time, a die is injected through the catheter and its flow is analyzed to determine whether the artery is blocked.

According to Pamela S. Douglas, professor of cardiology at Duke University:

We want to be clear that if someone is having a heart attack and their doctor sends them to a cath lab, they shouldn’t argue. … But a stable patient who has not been diagnosed with heart disease and who does not need catheterization for pain control may want to ask about the risks and benefits.

Contributing author: Jon Stefanuca

St. Joseph tells 169 more patients they may have had unneeded surgery; total notified at now at 538

The Baltimore Sun reports today that another 169 patients have been notified by St. Joseph Medical Center in Towson, Maryland, that the coronary stent implants they received may well have been (read – were) unnecessary.  The total number of patients so far notified by the hospital has now reached 538.

Stents, mesh tubes that are threaded into damaged arteries to prop them open, are generally considered appropriate when vessels have at least a 70 percent blockage. But hospital officials say their review uncovered stents implanted by Midei in patients with insignificant blockage. And attorneys representing some patients say the amount of blockage was often overstated in their medical records.

Dr. Mark Midei, a cardiologist at the center of this storm, was terminated by St. Joseph Medical Center after the hospital came under investigation by federal authorities last year.  He at one time was an employee of one of the leading cardiology group practices in the area, MidAtlantic Cardiovascular Associates, but left that group when he was recruited by St. Joseph Medical Center to head its cardiovascular laboratory in 2008.  His departure from his group was apparently not peaceful.

[Dr. Midei’s] departure helped scuttle a deal MidAtlantic had to merge with St. Joseph rival Medstar Health, and prompted the practice’s chief executive to tell Midei: “I will spend the rest of my life trying to destroy you personally and professionally,” according to court records.  

A class action lawsuit has been filed by the the Murphy Firm in Baltimore, Maryland, working in conjunction with another Baltimore legal powerhouse, The Law Offices of Peter Angelos. These firms have been involved in many class action lawsuits across the country.  The current lawsuit has been filed in Circuit Court for Baltimore City, Maryland.  On January 28, 2010, the Murphy firm posted an announcement regarding this class action.  A similar press release detailing some of the relief being sought in the class action is posted on Peter Angelos’ firm’s website.

In February of this year, according to the Sun’s report today, “two senior members of the U.S. Senate Finance Committee called on St. Joseph to turn over records of its financial relationships with stent manufacturers, including records of how the $10,000 procedures were billed to federal and private insurers.”

“In addition to putting patients’ lives at risk, unnecessary medical procedures amount to wasteful spending of precious federal health care dollars,” they wrote in a letter to the hospital.

As for Dr. Midei’s comments or reaction to today’s article, the Sun reports:

A spokesman for Midei declined to comment. He reiterated a statement the doctor issued in January, which read: “I am confident that I have always acted in the best interest of my patients, and when all the facts are presented, I will continue providing quality medical care to my patients.”

Penn Hospital Sued Over Alleged Failure to Admit Uninsured Patient

What if you needed emergency life-saving surgery, were told that a hospital would accept you, but then you were suddenly turned away because you had no health insurance?  This is what is alleged in a lawsuit recently filed in Pennsylvania.

An article, posted by the Philadelphia Inquirer, details the horrific story of Mr. Marcus Murray, who was allegedly turned away from the Hospital of the University of Pennsylvania, after being initially accepted from another hospital, Underwood Memorial:

Murray, a contractor and laborer, was driving home to Felton, Del., from South Jersey on May 2, 2008, when he began experiencing chest pain and weakness, hospital records show.An ambulance reached him at 7:09 p.m.At 7:27 p.m. in the emergency room at Underwood, a nurse noted he was pale, sweating profusely and complaining of chest pain and shortness of breath.He was moved to a bed, and it was noted that his blood pressure was dangerously low.He was taken for a CT scan at 10:50 p.m.The scan revealed a “complex dissection of the thoracic and abdominal aorta,” an emergency that required treatment by a cardiothoracic surgeon.Underwood lacks open-heart-surgery capability, so Murray needed to be transferred to another hospital.At 10:54 p.m., according to Murray’s Underwood records, Sidwa made a note that Penn had agreed to accept Murray, and efforts were made to get a helicopter to transport him to Philadelphia.But helicopter transport was impossible because of bad weather, Sidwa noted at 11:39 p.m. Sidwa then wrote that he had spoken with Woo, the Penn surgeon, who told him that Murray was “not accepted at this time due to various reasons.”A nurse’s note in Murray’s records at 11:56 p.m. said Penn “refused to accept patient due to no medical insurance. “Sidwa then contacted Christiana Hospital in Delaware and arranged for an ambulance to transfer him.Murray left Underwood at 1:44 a.m. on May 3 and arrived at Christiana half an hour later.He was taken to an operating room and suffered a cardiac arrest at 3:07 a.m. while being given anesthesia, the lawsuit stated.

The suit alleges violations of the Emergency Medical Treatment and Labor Act (EMTALA),  so it was filed in federal court.  This Act protects public access to emergency medical services, regardless of the ability to pay.  Mr. Murray’s lawyer stated that Mr. Murray suffered brain damage and blindness as a result of a lack of timely care as well as a delayed transfer.  Ultimately, Mr. Murray ended up at Christiana Hospital in Delaware, where he received the care he needed, albeit much too late.

In response to these allegations, Susan E. Phillips, Penn’s Medical Chief of Staff,  stated, “We welcome the opportunity to defend our actions in this case.”  She further went on to state that “unless we lack the medical capacity to accommodate a transfer due to the needs of existing critically ill patients already being cared for in our hospitals, we routinely accept urgent patient transfers when medically safe.”

It certainly appears that she and the hospital are going to get their wish – the “opportunity” to defend [their] actions.

Expanding The Role Of Nurse Practitioners: Licence To Practice Medicine Without A License

An article published by NPR comments on the nationwide movement to expand the role of nurse practitioners in light of the growing deficit of primary care physicians. According to the article:

Nursing leaders say large numbers of [nurse practitioners] …will be needed to fill gaps in primary care left by an increasing shortage of doctors, a problem that would intensify if Congress extends health insurance to millions more Americans. Advocates say nurse practitioners have the extra education and training needed to perform a variety of services, including physical exams, diagnosis and treatment of common ailments and prescribing drugs.

A study published by the Center for Workforce Studies projects that, by 2025, there will be a nationwide shortage of about 124,000 physicians. Researchers note:

Under any set of plausible assumptions, the United States is likely to face a growing shortage of physicians. Due to population growth, aging and other factors, demand will outpace supply through at least 2025. Simply educating and training more physicians will not be enough to address these shortages. Complex changes such as improving efficiency, reconfiguring the way some services are delivered and making better use of our physicians will also be needed.

Based on this rationale, a number nursing organizations, state level legislators, regulatory bodies, and various other national organizations and policy thinktanks advocate for an expanded role, particularly in the field of primary care, for nurse practitioners. According to the article, a number of states have already implemented or are presently considering legislation to expand the role of nurse practitioners. For example, a Colorado bill would enable nurse practitioners to issue orders in the same way as a physician. Practically speaking, this would mean that a nurse practitioner, in addition to being able to order medications, would also be able to issue orders directing the treatment of the patient (e.g., orders to admit the patient, CT/MRI orders, consultation orders, etc.)

While these proposed reforms may be practical and serve a utilitarian purpose, one can’t help but wonder if the quality of health care rendered to millions of Americans is going to be compromised as a consequence. The easy answer is not always the right answer. It may be true that there are more nurse practitioners in the U.S. than there are physicians (there are about 125,000 more nurse practitioners). If allowed, nurse practitioners could certainly fill the void. But, the critical inquiry remains: are nurse practitioners sufficiently qualified to serve as substitutes for physicians? For example,

The American Medical Association (AMA) and doctors’ groups at the state level have been urging state legislators and licensing authorities to move cautiously, arguing that patient care could be compromised.

The AMA issued a report in which it questioned whether nurse practitioners are sufficiently qualified to render medical care in areas currently restricted to physicians.

“To back up its claims, the report cites recent studies that question the prescription methods of some nurse practitioners, as well as a survey that reported only 10 percent of nurse practitioners questioned felt well prepared to practice primary care.”

The idea that nurse practitioners are qualified to serve as substitutes for physicians it truly worrisome. There is a reason why nurse practitioners are not physicians – they don’t have the same level of training and expertise. Surely, there are patients with fairly simple medical complaints, which probably could be addressed by nurse practitioners; however, what about the inevitable complex patient? Are nurse practitioners sufficiently trained to simultaneously recognize the interplay of multiple medical conditions, as well as determine the interplay of necessary medications, radiographic studies and necessary follow up care? I for one will make sure to be seen by a physician.

Contributing author: Jon Stefanuca