Posts Tagged ‘Medical Malpractice’

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

April 1, 2010

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!

Time nearly up on malpractice suit against missing doctor -Texas style

March 30, 2010

In an article recently published online through the Austin-American Statesman website, one of the many harsh realities of our legal system is exposed.  The significance of procedural deadlines, and what may ultimately happen if such a deadline is not met (despite best efforts) is highlighted in this tragic story.  The following is a very brief summary, as taken from the article:

Debbie Stockton didn’t know her obstetrician was a drug addict when her son William was born in 1989 with extensive nerve damage to his left arm.

But when the boy grew into a teenager and his atrophied arm didn’t improve, Stockton sought legal advice and learned that Dr. Howard Offenbach had checked himself into a drug treatment center within a week of William’s birth to kick a years-long Valium and hydrocodone habit.

So in 2007, Stockton sued for an unspecified amount, claiming that Offenbach caused William’s injury by failing to order emergency surgery when the boy’s shoulder became pinned beneath his mother’s pubic bone during a difficult delivery.    

The Stocktons, however, ran into a legal roadblock that derailed their lawsuit before it went to trial.

Texas malpractice law gave them 120 days after filing suit to serve Offenbach with their medical expert’s report and résumé, but Offenbach couldn’t be found. After losing his medical license in 2000 for drug abuse, Offenbach had moved from his Dallas house, been evicted from two apartments and disappeared from public records.

Even Offenbach’s lawyers — acting on behalf of the former doctor’s insurance company — have been unable to locate their client and say that Offenbach is “not findable.” Still, they asked the trial court to throw out the Stocktons’ lawsuit for blowing the 120-day deadline.

The case has traveled its way up through the Texas court system over the past several years, before ending up at oral argument last week before the Texas Supreme Court.  The article also details the extent to which the Stocktons’ lawyer went to attempt to serve Dr. Offenbach with the lawsuit.

Sadly, Debbie Stockton passed away last fall from cancer.  The injured victim, William Stockton, is fighting for his cause, as the case has been continued under his name.  The Court now has the case under review.  We do not know what the Court will hold.  The article leaves us with this:

Justice Dale Wainwright mused aloud about the court’s dilemma.

The language of the law clearly directs judges to dismiss any lawsuit that exceeds the 120-day deadline, he noted: “On one hand, we don’t want defendants dodging or hiding to let the 120 days lapse. On the other hand, we don’t want claimants to be lax in any way when the Legislature used this kind of strict rule.”

Tort Reform – Consider the Consequences – Lesson #1

March 28, 2010

Lost in all of this discussion about how tort reform and caps on damages will save the medical profession has been a discussion of what is really behind all this nonsense.  The Republicans claim that the reason the healthcare system is broken is because of the rising costs of malpractice insurance due to high verdicts, ‘out of control’ juries, the plaintiff lawyers and every other specious argument that sounds good but has no basis in reality.  Study after study has demonstrated that jurisdictions with caps do not affect malpractice insurance rates.

Has anyone really thought about why these naysayers are incessantly calling for a cap of $250,000 on non-economic damages?  It’s a simple matter of mathematics.  This number is not based in any reality of insurance rates – now is it?  Have you seen a single study that uses this ‘magic number’ to demonstrate how this will save healthcare?  If you have, please share it with the rest of us.  That comment will be posted in a heartbeat.

So what is behind this ‘number’?  What is the usual contingent fee being charged these days – 33 1/3 or 40 percent?  How much does it cost to investigate, file and try to conclusion a medical malpractice case of any consequence?   Answer: it can range anywhere from $75,000 to $150,000 (rough averages but pretty accurate). What is the largest cost?  Answer:  medical experts, who charge anywhere from typically $350 to $1,000 per hour.  What part of the population typically receives less than optimal (read ‘Cadillac’) care – answer: lower income patients without any coverage or without ‘the best coverage. ‘ When those patients seek care, how are those bills often financially covered?  Answer:  Medicaid or Medicare.  Do you have any understanding of what a ‘super lien’ is?  Answer: Medicare and Medicaid have an absolute right to complete reimbursement of any related medical expenses paid out in such cases.

So how do all these numbers, issues and forces play out in the real world of medical malpractice? What effect would a cap of $250,000 on non-economic damages have on whether a bona fide lawsuit (read: awful care causing serious injury) could ever be brought to court?

So that this posting can stay within the realm of reason in terms of length, I’ll just give you the above factors to ponder for a bit.  Later posts will give you more concrete examples of how, in the real world of malpractice cases, these specious arguments for caps and ‘tort reform’ are nothing more than an attempt to deny patients and their families of access to the courts.

Let’s leave you with a thought – a patient on Medicaid receives awful medical care leading to horrible injuries requiring hundreds of thousands of dollars in past and future care needs.   What do you think a client would recover in such a situation under ‘tort reform’ and a cap of $250,000?

Recovery of those costs do not go to the patient but are the subject of a reimbursable lien.  That potentially leaves recovery for non-economic damages only.  Apply a fee of one-third (answer:  just over $80,000) and costs of (let’s say) $125,000 (totally within the ‘usual’ range).  Have you done the math?  That’s about $45,000 to the client.  How does a lawyer satisfy a client’s needs in that scenario?  You can’t.  Do you do the case ‘on the cheap’ and not hire the experts or do the discovery you need to do?  You can’t – that runs of the risk for the client of not winning – in which case the recovery is nothing.

Now are you starting to get the picture what is really behind the proposed ‘tort reform’s cap’?  Don’t think for one minute that the medical profession and its insurers haven’t done the math.

More to come….

Cardiac Catheterizations Overused

March 11, 2010

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

March 10, 2010

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.”

Strokes – Family History a Significant Risk Factor

March 9, 2010

According to an article published by WebMD, individuals whose parents have had a stroke by age 65 are more likely to have a stroke.

Strokes are generally defined as disturbances of blood flow in the brain as a result of a ruptured blood vessel, a blockage within the lumen of the blood vessel, or some other ischemic process. The ischemic process can cause brain tissue to die, resulting in death or permanent brain injury. In all respects, strokes represent medical emergencies.

Among other things, the following are generally considered to be risk factors for developing a stroke: previous history of strokes, brain trauma, advanced age, increased lipid levels, increased blood pressure, diabetes, atrial fibrillation, and smoking.

The results of the study suggest that a person’s family history of strokes should also be considered in assessing the risk for developing a stroke.

Researchers studied 3,443 people who initially were stroke free and second-generation participants in the Framingham Heart Study. The participants’ parents had reported 106 strokes by age 65, and offspring 128, over the 40-year study. People with a parent who had a stroke by age 65 had twice the risk of having a stroke at any age and four times the risk by 65, after adjusting for conventional risk factors.

Contributing author: Jon Stefanuca

Penn Hospital Sued Over Alleged Failure to Admit Uninsured Patient

March 5, 2010

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.

D.C. EMS Faces Review in Tragic Death of 2 Year Old Girl

March 4, 2010

From a report in today’s Washington Post, we learn that in the District of Columbia last month, a two-year-old girl died after suffering from apparent breathing problems. While the unfortunate death of a toddler is tragic enough as it is, it turns out that the death may have been preventable. The family of the little girl called paramedics, who promptly came to the house to evaluate the girl. Unfortunately, the paramedics made the decision not to take the girl to a hospital:

Emergency responders went to the 800 block of Southern Avenue SE shortly before 5 a.m. on Feb. 10, department spokesman Pete Piringer said. Paramedics arrived minutes later, and the toddler was evaluated but not taken to a hospital, Piringer said.

About nine hours later, the family called the paramedics again because of the little girl’s ongoing breathing problems. Unfortunately, it was too late. Although the paramedics came out and took the child to Children’s National Medical Center, she tragically died the next day.

As a result of this incident, several emergency workers who initially responded to the family’s call for help have been placed on administrative leave while the D.C Fire and Emergency Medical Services conducts a review of the incident.

This is not the first time the department has faced criticism for such conduct. In December 2008, paramedics responded to the home of a man complaining of chest pains and decided not to take him to a hospital. The man died of a heart attack several hours later. In 2006, a New York Times reporter was mugged and beaten. Assuming that he was drunk, paramedics did not take him to a hospital; the man later died.

We look forward to learning the results of the EMS investigation and trust that if any deficiencies are found, the EMS will make the necessary changes in training and/or personnel so that such unfortunate events do not take place again.

At Hearing on Radiation, Calls for Better Oversight

March 1, 2010

In an article posted by the New York Times, the dangers of radiation, specifically being over/errantly exposed in medical procedures, is graphically detailed.  The article also references an in-depth investigative report that the New York Times featured in January of this year. The tragic story of Scott Jerome-Parks, is described in both articles, with many of the sad details provided in the New York Times January investigation:

As Scott Jerome-Parks lay dying, he clung to this wish: that his fatal radiation overdose — which left him deaf, struggling to see, unable to swallow, burned, with his teeth falling out, with ulcers in his mouth and throat, nauseated, in severe pain and finally unable to breathe — be studied and talked about publicly so that others might not have to live his nightmare.
Sensing death was near, Mr. Jerome-Parks summoned his family for a final Christmas. His friends sent two buckets of sand from the beach where they had played as children so he could touch it, feel it and remember better days.

Mr. Jerome-Parks died several weeks later in 2007. He was 43.

A New York City hospital treating him for tongue cancer had failed to detect a computer error that directed a linear accelerator to blast his brain stem and neck with errant beams of radiation. Not once, but on three consecutive days.

The frequency and occurrence of radiation being utilized in medical procedures continues to be on the rise.  Many leaders from the healthcare industry agree that more needs to be done, in so far as making sure radiation continues to help, and not harm, patients.  The New York Times examined thousands of pages of records, and conducted numerous interviews with healthcare professionals.  Some of the results revealed the following:

The Times found that while this new technology allows doctors to more accurately attack tumors and reduce certain mistakes, its complexity has created new avenues for error — through software flaws, faulty programming, poor safety procedures or inadequate staffing and training. When those errors occur, they can be crippling.

“Linear accelerators and treatment planning are enormously more complex than 20 years ago,” said Dr. Howard I. Amols, chief of clinical physics at Memorial Sloan-Kettering Cancer Center in New York. But hospitals, he said, are often too trusting of the new computer systems and software, relying on them as if they had been tested over time, when in fact they have not.

Identifying radiation injuries can be difficult. Organ damage and radiation-induced cancer might not surface for years or decades, while underdosing is difficult to detect because there is no injury. For these reasons, radiation mishaps seldom result in lawsuits, a barometer of potential problems within an industry.

In 2009, the nation’s largest wound care company treated 3,000 radiation injuries, most of them serious enough to require treatment in hyperbaric oxygen chambers, which use pure, pressurized oxygen to promote healing, said Jeff Nelson, president and chief executive of the company, Diversified Clinical Services.

While the worst accidents can be devastating, most radiation therapy “is very good,” Dr. Mettler said. “And while there are accidents, you wouldn’t want to scare people to death where they don’t get needed radiation therapy.”

A good portion of the hearing last week dealt with CT Scans and the proper amount of radiation to which one should be exposed.  One of the concerning issues with CT Scans is the vast difference between exposure levels at different facilities.  Even within the same facility, doses can vary widely between patients.

CT Scans are only one example of the multitude of issues presented at the Congressional hearings last week.  The mandatory accreditation of radiologic units as well as the standardized reporting of medical errors were called for by some at the hearings.

Ovarian Cancer – The Smear Test Won’t Tell You Much

February 28, 2010

According to an article published by the UK Press Association, a UK study revealed that one in three women mistakenly believe that a smear test can diagnose ovarian cancer. The test is also known as Papanicolaou test, Pap smear, Pap test, or cervical smear.

[The smear test] is a screening test used in gynecology to detect premalignant and malignant (cancerous) processes in the ectocervix. … In taking a Pap smear, a tool is used to gather cells from the outer opening of the cervix (Latin for “neck”) of the uterus and the endocervix. The cells are examined under a microscope to look for abnormalities. The test aims to detect potentially pre-cancerous changes (called cervical intraepithelial neoplasia (CIN) or cervical dysplasia), which are usually caused by sexually transmitted human papillomaviruses (HPVs). The test remains an effective, widely used method for early detection of pre-cancer and cervical cancer. The test may also detect infections and abnormalities in the endocervix and endometrium.

While the smear test is customarily used to diagnose cervical cancer, it is not very helpful in diagnosing ovarian cancer. Cervical cancer and ovarian cancer are distinct medical conditions with distinct symptoms. Cervical cancer refers to malignant tissue developing in the cervix – the organ, which connects the uterus and the vagina. Last year, there were about 4,070 deaths associates with cervical cancer. The smear test is effective in diagnosing cervical cancer.

Ovarian cancer refers to malignant tissue in one or both of the ovaries. Last year, there were about 14,600 deaths associated with ovarian cancer – a much higher mortality rate when compared to that of cervical cancer. Symptoms of ovarian cancer include, but are not limited to : abdominal pressure, abdominal distention, urinary urgency, abdominal pain and discomfort, indigestion, constipation, changes in menstruation, lethargy, and pain during intercourse.

According to the article,

Almost one in three women (29%) mistakenly believe a smear test will pick up signs of ovarian cancer. …  Only 4% are confident they could spot symptoms of the disease themselves and many believe it is less common than cervical cancer. … The poll of more than 1,000 women found that twice as many (66%) had been given information about cervical cancer as those who had details on ovarian cancer (33%). Of women diagnosed with ovarian cancer, more than half (56%) did not know anything about the disease beforehand.

These numbers reveal a dangerous misconception about ovarian cancer. Many more women are diagnosed with ovarian cancer than cervical cancer. Moreover, many more women die as a result of ovarian cancer than as a result of cervical cancer. Early diagnosis is key in both instances. In this regard, being knowledgeable about these medical conditions can be a matter of life and death. Be mindful that a smear test is not helpful in diagnosing ovarian cancer.

Contributing author: Jon Stefanuca