Woman undergoes mastectomy only to learn a week later, she never had cancer. Now another patient of same doctor claims the same fate.

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!

Confidential Settlement Agreements: Which should win – privacy or right-to-know?

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.

Florida’s doctor discipline system not tough enough, critics say

As a Florida-licensed attorney who spent 15 years working in consumer justice law firms in the ‘Sunshine State,’ I keep a watchful eye on trends and developments within various personal injury practice areas in Florida.  There is currently a real, legitimate concern regarding the system that is responsible for disciplining doctors who are licensed to practice medicine in Florida.  The Orlando Sentinel recently published an article how some believe there is much to be desired when it comes to how the  Florida Department of Health handles these matters.  

Consumer group Public Citizen last month ranked Florida the eighth most-lenient in the nation for disciplining doctors. The ranking stems from the number of serious actions per 1,000 doctors last year, when the state revoked the licenses of 94 and suspended 18 others. The toughest state disciplined doctors at rates three times as high. The trend has been true for a decade, the group said.

Critics contend the state does not act fast enough or toughly enough against the small share of practitioners accused of substandard care, negligence, crimes or improper behavior. Too often, they say, the state lets professionals such as Lan continue practicing while officials probe allegations of crimes or serious violations and injuries.

Regulators dismiss 90 percent of complaints that patients or others file against practitioners, more than 95 percent of those against doctors. When action is taken, the state rarely imposes serious punishments, such as revoking or suspending licenses.

There is ‘the other side’ of the story.  According to the article, some of the advocates for the way the system works take the following position:

State officials and some attorneys defend the system and say the criticisms are overstated. They say any system can be improved, but contend the state focuses on protecting the public from professionals who commit the most serious wrongs, and demands remedial training for professionals who make errors.

“I don’t see the evidence to support [the criticism]. We believe we are doing a good job,” said Lucy Gee, the health department’s director of medical quality assurance.

Gee said the process moves deliberately so it can be thorough. Cases remain secret because laws aim to keep baseless complaints from becoming public and unfairly tarnishing professionals, she said.

What about the doctors and individuals within the medical profession that repeatedly cause harm to patients or are charged with serious crimes (felonies) but are permitted to continue practicing medicine?  What about these same individuals within the profession, who do not receive ANY form of discipline whatsoever, or are allowed to continue practicing, while the investigation against them is pending. Here are just a few examples of such real world cases:

Dr. Stuart F. Tillman, a Tallahassee anesthesiologist arrested in July and charged with soliciting sex online from a police officer posing as a girl of 14.

Dr. Joseph M. Hernandez, formerly of Fort Lauderdale, who was arrested in Lake City in February and charged with trafficking narcotic pain pills and prescribing drugs for monetary gain. In 2006, records show the state banned him from doing surgery and temporarily suspended his license because his vision was severely impaired. In 2007, he was fined $5,000 for leaving part of an IV tube in a patient’s chest.

Dr. John N. Mubang, an internist in the Tampa suburb of Seffner who was arrested and charged in July 2008 with drug trafficking and prescribing controlled substances for monetary gain.

All three have pleaded not guilty, with trials pending. Hernandez and Mubang are practicing, according to their offices. Hernandez declined to comment. Mubang and Tillman could not be reached for comment, despite calls or messages left at their offices.

What does this say about the system that disciplines doctors in Florida?  Sure, there are many great doctors in Florida, but for the ones who put their patients’ lives at risk (through negligent treatment or otherwise) or are charged with serious crimes that may have an impact on their practice/medical license, the question remains: Would YOU want to have a surgical procedure performed by a doctor that has a criminal investigation pending against him or her that may land them in jail? I suspect you would prefer your doctor to be completely focused on your surgical procedure and not thinking about other ‘outside distractions.’  Shouldn’t there be additional aggressive safeguards in place that will IMMEDIATELY prevent the medical provider from committing more harm?

We leave you with this: Yes, emergency suspensions were put into effect 248 times in 2009.  However, compare that with the approximate 24,000 complaints that were filed against doctors and other members of the medical profession the same year, by both individuals and other agencies.  Are we really to believe that only 248 of those 24,000 cases required emergency suspension of one’s practice…??

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:woman awarded $3.5 Million for paraplegia after graft surgery.

53 year old Victoria Little, of Harford County, MD, walked into the hospital to have  surgery wearing four inch heel, but when the surgery was over, she was left a paraplegic unable to walk. Ms. Little underwent a grafting procedure in 2007 for blocked arteries.

Ms. Little filed suit in 2008 claiming that Dr. Rodger Schneider and Dr. Mark Gonze, partners and surgeons of Vascular Surgery Associates, used an improper grafting technique. Plaintiff’s counsel, two good friends of ours, Jim Cardea and Scott Kurlander,  argued that the procedure led to blood loss and damage to Ms. Little’s spinal cord, which left her a paraplegic.

The Baltimore Sun reported that after hearing all arguments and nine hours of deliberation, the jury awarded Ms. Little $1.3 million for non-economic damages, $2 million for future medical costs and over $200,00 for prior medical bills.

Attorney for the defendants, E. Phillip Franke, III, claimed that Ms. Little  simply had a poor outcome and that her injuries wee not the result of malpractice. The defense is currently reviewing the case for appeal. In light of Maryland’s cap on non-economic damages (e.g. pain and suffering) we expect that in the interim that the award will be reduced.

Harford County has traditionally been viewed as a conservative jurisdiction and not plaintiff-friendly. Well, the good people of Harford County got it right! Congratulations, Scott and Jim!

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.

Semi-Paralyzed from a Steroid Injection earns FL Woman $36 Million

Kathleen Ramey presented to Dr. Andrew Weiss, a pain management specialist, for a steroid injection in September of 2000 after having been in a motor vehicle collision. Believing she would leave pain free and on the road to recovery, Ms. Ramey got anything but that result.

The injection left Ms. Ramey with a four inch hole in her spinal cord, which according to the report of The Palm Beach Post, left Ms. Ramey suffering constant pain and with a disfigured right arm. A Palm Beach County jury awarded Ms. Ramey $23.6 million; her husband was awarded an additional $13 million in damages.

Apparently, Dr. Weiss did not put up a very strong defense. In fact, he was not even at the trial. Moreover, he did not have any legal representation on his behalf in the courtroom.

Why in the world would that be, and where was he? The Palm Beach Post advises, “He is in the midst of serving a 12-year federal prison sentence after pleading guilty in 2006 to four counts of illegally distributing oxycodone. His state medical license has been revoked.”

I’ve heard of ‘paper judgments’ before, but this story is truly tragic on so many levels. One of those is not the incarceration of Dr. Weiss. Though Ms. Ramey won her case, it could be a long time (if ever) before she sees any compensation for her horrible injuries.

Fatal Plastic Surgery Case Results in $3.1 Million Settlement, but Jury Returns Verdict in Favor of Non-Settling Anesthesiologist

In March of 2005, Kathleen Cregan left her home in Limerick, Ireland to embark on a journey to the United States. She was heading to New York where she underwent a face lift by Dr. Michael Sachs. Wanting this surgery to be a surprise for her husband, she had told him that she was leaving home for a few days to attend a business course in Dublin.

Just hours after the completion of the face lift procedure, Ms. Cregan collapsed in the clinic bathroom from a blood clot that had formed overnight, which had passed from her pharynx into her trachea. Ms. Cregan quickly developed breathing problems and went into cardiac arrest, which resulted in brain damage.  Ironically, as the New York Times reported, Ms. Cregan later died on Saint Patrick’s Day.

Her family sued Dr. Sachs, as well as an anesthesiologist, Dr. Subbaro,  and a nurse, Susan L. Alonzo-Francisco, who were part of the medical team, for malpractice in State Supreme Court in Manhattan.

Dr. Sachs’s settled his portion of the lawsuit for $2.1 million last month. The case involving the nurse, Susan L. Alonzo-Francisco, was settled for $1 million on Friday. Dr. Subbaro proceeded to trial remaining steadfast that he was not negligent in his care of this patient. Even though the nurse had settled, the issue of her liability was submitted to the jury for determination.

The plaintiffs alleged that Dr. Subbaro had left the clinic and turned-over Ms. Cregan’s post-procedure care to Nurse Alonzo-Francisco, who, plaintiffs alleged, did not know how to utilize an endotracheal tube to alleviate breathing difficulties. It was also claimed that Ms. Alonzo-Francisco failed to dial 911 in a timely fashion.

The verdict: “late Friday afternoon, a six-member jury cleared [Dr. Subbaro] of responsibility in Ms. Cregan’s death. Jurors, who began deliberating on Friday morning, did not know of Ms. Alonzo-Francisco’s settlement, so they delivered verdicts exonerating her of responsibility as well. The settlement, however, will stand.”

So how did this lady, who lived on a farm in Ireland, come to be a patient of Dr. Sachs in New York?

Ms. Cregan found out about Dr. Sachs after reading an article about him in The Sunday Independent of Ireland, her family said. The article described him as “a leading cosmetic and facial reconstruction surgeon” in the United States, with a “highly confidential client list.”

But here’s what she didn’t know when she consented to his operating on her:

The article did not mention that Dr. Sachs had settled more than 30 malpractice lawsuits. But he was known as a master of generating publicity, even appearing on “The Oprah Winfrey Show” twice in the early 1990s. Dr. Sachs surrendered his license to practice medicine in 2008.

We have addressed this very issue of ‘Top Doctor’ does not necessarily mean best doctor. You simply need to do some homework on whom you are choosing to care for you or operate on you. Be an advocate for yourself – ask questions, don’t be embarrassed to do so. If  you have the time, do some research on the person you are entrusting with your health and perhaps even your life.

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.

Fetal Pain and Suffering: New Nebraska Abortion Law Sparks Debate – When Does a Fetus Feel Pain?

An online article posted yesterday in NewScientist raises some interesting issues that will no doubt be the subject of much debate in days, months and years to come – does a fetus feel pain and if so, when? The true focus of this article was the recent (April 13, 2010) passage of new legislation in Nebraska, which essentially prohibits abortions after 20 weeks.  Ostensibly, Nebraska has become the first state to ban abortions on the basis that fetuses feel and appreciate pain.

The law, according to a report in LifeSiteNews.com, goes into effect on October 15, 2010, and has, at a minimum, the following legal implications:

Abortionists who break the law would face a Class IV felony charge, which carries a penalty of a five year maximum prison sentence, $10,000 fine, or both. Women who obtain abortions of their unborn children would face no criminal penalties.

The bill would allow women and even the fathers of aborted unborn children to sue and seek damages from abortionists who violate the law.    

I say “at a minimum” since there are other civil law implications arising from  the rationale behind this legislation. One of those issues often litigated throughout the various courts of the United States is a parent’s right to sue for conscious pain and suffering for fatal or non-fatal injuries to a fetus.  That analysis is beyond the scope of this blog. What is of present importance is the so-called ‘science’ behind this legislation and the response of the scientific community that may well have far-reaching implications in the field of civil litigation.

Before engaging in this discussion, note well: it is not my intention (or desire) to become embroiled in the abortion issue.  That is not what we do in our firm.  It is the state of  science that intrigues me in terms of how that may have relevance to what we do – litigate civil cases involving matters such as fetal death in utero or death or injuries sustained by fetuses due to the negligence of third persons (e.g. medical malpractice, catastrophic automobile accidents and the like).

Apparently, the ‘scientific basis’ for this Nebraska legislation is the research of Kanwaljeet “Sunny” Anand, a professor at the University of Arkansas for Medical Sciences.  Dr. Anand testified in 2004 on the federal partial birth abortion ban.  He provided his opinion testimony that after 20 weeks gestation, an unborn child would experience “severe and excruciating pain” from an abortion.

Dr. Anand’s opinions are not without numerous critics.  What is significant, however, is that even many scientists, who challenge Dr. Anand’s opinions that 20 weeks of gestation is the point at which a fetus can feel and appreciate pain, do accept the proposition that there is a point in the life of fetus where they can and do appreciate pain and suffering.

Dr. Mark A. Rosen, the Director of Obstetrical Anesthesia at UCSF’s Fetal Treatment Center, in 2005 co-authored an article in JAMA (abstract) that some refer to as the ‘seminal review on fetal pain.’

One of the opinions expressed in that paper defines what is at the center of this discussion – what is meant by ‘perception of pain’?

Pain perception requires conscious recognition or awareness of a noxious stimulus. Neither withdrawal reflexes nor hormonal stress responses to invasive procedures prove the existence of fetal pain, because they can be elicited by non-painful stimuli and occur without conscious cortical processing.

In the NewScientist posting, Dr. Rosen provided rebuttal statements to the premise inherent in the Nebraska legislation that fetal pain occurs at 20 weeks of gestation.

Dr. Rosen states, “The first brain pathways associated with pain perception “are not complete before approximately 29 weeks of gestation”, so although fetuses develop brain wiring from about 23 weeks onwards, the connections are not there to enable them to experience pain.”

Whether it is at 20 weeks or 29 weeks, one common principle exists – according to a number of scientists, there is a point prior to birth that a fetus can appreciate pain from a medical-scientific standpoint – the ‘wiring’ is in place. If this is true scientifically, how does this affect the right of recovery by a parent or the estate of an injured fetus in those jurisdictions permitting conscious pain and suffering damages for injuries to a fetus?

For instance, if a fetus is at 35 weeks gestation and by all other accounts is totally viable with ‘the wiring in place,’ does that fetus and/or the parents have a claim for conscious pain and suffering should injury to the fetus occur?

Does any jurisdiction recognize the right of a fetus to recover for injuries sustained in utero?  Absolutely – it just depends which jursidiction(s) you are considering.  For example, the District of Columbia, in 1946, was the first jurisdiction to recognize the right of a fetus to bring a separate cause of action (Bonbrest v. Kotz). This was an action for damages being brought on behalf of a fetus allegedly injured ‘in the process of being removed from its mother’s womb.’ “Under the civil law and the law of property, a child en ventre sa mère is regarded as a human being from the moment of conception.”

In 1984, the D.C. Court of Appeals, relying in large part on Bonbrest, stated:

Although this court has never considered this question, we note that every jurisdiction in the United States has followed Bonbrest in recognizing a cause of action for prenatal injury, at least when the injury is to a viable infant later born alive.

Note the key conditions: “…when the injury is to a viable infant later born alive.

This posting is already perhaps too long – this topic is multi-faceted and more the subject of a treatise, white paper or a law review article, not a blog.  What is apparent (at least to me) is that this new Nebraska legislation will undoubtedly rekindle the fires of fascinating litigation about fetal rights, fetal and parental causes of action and fetal pain and suffering claims. Stay tuned – there will undoubtedly be much more to come.