Cerebral Palsy Lawyer & Attorney : Burke & Eisner Law Firm : Medical Malpractice Lawyers & Attorneys

Now here is an interesting article that weighs the risk assumed by mothers as compared to letting them have a vaginal birth after C-Section (VBAC).

Great little synopsis from the blog where I found it.  The True Face of Birth

I recently came across an article titled Cost-Effectiveness of Elective Cesarean Delivery After One Prior Low Transverse Cesarean. The title isn't that interesting, but the article certainly is. The authors calculated the hypothetical overall cost and relative risks of a policy of ERCS (elective repeat cesarean section) versus VBAC (vaginal birth after cesarean). Some of the findings:

• In order to prevent one major adverse neonatal outcome (death or cerebral palsy) due to a VBAC, doctors would need to perform 1,591 cesarean sections and incur a cost of $2.4 million.
• For every five babies' lives saved due to ERCS, one mother will die and many others will be injured.
• "Elective repeat cesarean delivery in 100,000 women whose first birth was a cesarean through a low transverse incision will prevent 37 cases of cerebral palsy and 37 neonatal deaths. To achieve this health benefit requires an excess of 117,748 cesarean deliveries, seven maternal deaths, and 5500 maternal morbid events."

Hundreds of hospitals have banned VBACs since 1999, when ACOG revised its recommendations on VBAC and stated that it “should be attempted in institutions equipped to respond to emergencies with physicians immediately available to provide emergency care.”[1] In practice, this translated into 24-hour in-house anesthesia and OB coverage, a requirement that often only large, tertiary hospitals could guarantee. Despite the fact that ACOG’s 1999 recommendation was not evidence-based [2], obstetricians and hospital administrators are under heavy pressure to comply with the recommendations. (The American Academy of Family Physicians has developed VBAC guidelines that are evidence-based; they recommend that VBAC "should not be restricted only to facilities with available surgical teams present throughout labor since there is no evidence that these additional resources result in improved outcomes.") As a result of ACOG’s new position on VBAC, hundreds of smaller hospitals have instituted a no-VBAC policy, requiring women to have mandatory repeat cesareans or to travel elsewhere—sometimes very long distances--to give birth. Some states also do not allow home birth midwives to attend VBACs, which further limits women's options.

This article's findings show that a policy of ERCS comes with a weighty set of costs and risks. VBAC bans force women to assume those risks, rather than allowing each woman to decide for herself whether to have a VBAC or schedule a repeat cesarean. A no-VBAC policy is paternalism at its worst; it takes away women's right to bodily integrity and to informed decision-making.

~~~

[1] ACOG Practice Bulletin No. 5, July 1999, “Vaginal Birth After Previous Cesarean Section.” According to the International Cesarean Awareness Network (ICAN), over 300 hospitals have banned VBACs since 1999. ICAN is currently compiling a comprehensive list of the status of VBAC in every U.S. hospital. See ICAN's VBAC Policy Database.

[2] McMahon, M. (1996). Comparison of a trial of labor with an elective second cesarean section. New Eng J Med 335 (10): 689-695.

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From an awareness point of view I would want to know this before I got treatment.

SACRAMENTO, California (CNN) -- A woman who says she had to forgo cancer treatment because of botched surgery by a California doctor says she was never made aware the doctor was being treated for alcoholism and had been convicted for driving under the influence of alcohol.

Becky Anderson received a breast reconstruction from Dr. Brian West, a California plastic surgeon, in September 2000. Becky, who was suffering from breast cancer, says she had to forgo cancer treatment while battling complications from West's surgery.

Now she is dying of cancer. She had no idea when she let West treat her that he had been convicted for driving under the influence in 1987 and had been arrested for a second DUI, for which he was later convicted, while on the way to treat her.

She claims he lied about the DUI, blaming a missed appointment with her on a car accident. She sued the doctor for negligence and malpractice. He never admitted fault, but settled with her for $250,000.

Source:  CNN.com:  Doctor's and Addictions

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People over Profits.  That is how it should be.  It isn't.

So now pharmaceutical companies and any company regulated by the federal government want to be able to keep you out of state court.  Why?  They say that because the federal government has approved a drug or medical device or consumer product, that it therefore is "safe".  We all know that is not necessarily true.  (It is also not a logical conclusion).

But by making this argument cases may only be able to be filed in Federal Court.  This is a BIG bonus for corporations, because it reduces where they have to defend lawsuits.  It also robs State's rights in my opinion.

The worst part of this is that it is not even always a federal law that makes this changes.  If an agency approves the product that may be enough to get the cases out of state court.

Kiss Your State's rights goodbye.

NEW ORLEANS (AP)— If you think the prescription drug you took for headaches caused your heart attack, the Food and Drug Administration says you can't sue the maker for injury if it met agency standards.

The Consumer Product Safety Commission (CPSC) says you can't sue a mattress maker if your mattress bursts into flame despite meeting CPSC standards. Companies making sport utility vehicles would get similar protection from suits brought by people injured or the families of those killed in rollovers under National Highway Traffic Safety Administration (NHTSA) proposals for stronger roofs.

Plaintiffs' attorneys call it "silent tort reform." But it's part of the tension that's existed since the nation's founding: conflict between state and federal law.

If they clash, state laws give way. That's in Article 6 of the Constitution. But in areas where there is no federal law, federal courts must defer to laws of the state where a lawsuit is heard. That includes product liability.

A developing body of judicial opinion could place new limits on the rights of those who buy or use products, consumer advocates say. It also could mean the savings of billions of dollars by companies insulated from lawsuits.

What's riling plaintiffs' lawyers, consumer groups and some regulators is agencies' assertions their rules override state product-liability laws. Most such claims are rooted in statements in the introductions to their rules, not the rules themselves.

"These pre-emption preambles may be only the beginning," New York University law professor Catherine Sharkey wrote in the DePaul Law Review.

Source:  WashingtonTimes.com

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No question.  This is a large verdict and it is no wonder that the the defense has said publicly that they will seek a new trial. That is standard.  Take a look at the facts laid out in this quote.  This (in my opinion) is a pretty typical medical malpractice case involving a delay in diagnosing the problem.

After a trial that began Feb. 11, the jury in Freehold deliberated two days before finding Aravind Palav, an obstetrician, negligent and awarding the boy $19.25 million on Monday afternoon.

According to Drazin, Palav initially misdiagnosed Kowalski, who was 30 weeks pregnant at the time, after she called him the evening of Sept. 11, 1997, complaining of abdominal pain.

Palav delayed in determining she was hemorrhaging and had lost a massive amount of blood, the lawyer charged. Kowalski was 40 at the time.

Palav also failed give to Kowalski the tests she needed, did not recognize the baby might be in "fetal distress" and ignored the warnings of a nurse who pinpointed the woman's problem, Drazine said.

Brandon, delivered by C-section at Riverview Medical Center in Red Bank, had to be resuscitated and spent four months in intensive care, Drazin said. He suffers from severe brain damage, cerebral palsy and is legally blind.

Source:  NJ.com Jury awards disabled boy $19 Million

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In this settlement, people with disabilities such as Cerebral Palsy and Mental Retardation will be moved to homes and apartments and will not be required to live in nursing homes.  They will also have staff and services made available to them as part of the settlement.

The state has reached an agreement in a long-standing class action lawsuit involving disabled people seeking to live outside nursing homes.

The agreement in the suit, initially filed in U.S. District Court in Springfield in 1998, will mean more than 600 people will be moved out of nursing homes in Massachusetts to apartments, group homes or their own residences and will have support staff available. The agreement is similar to one reached in 1999, which resulted in more than 1,000 people were placed in the community over several years, according to the state.

Source:  MassLive.com

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In a recent medical malpractice verdict in Indiana a jury awarded $3.7 Million to a young person with cerebral palsy.  Indiana state law reduces that amount to $2 Million under a law that caps verdicts.

Hmmm.  So what that means is that the insurance company gets to fight tooth and nail to keep from paying out and when they lose big then they are still protected.  Their maximum risk is $2 Million.  So who then bears the cost of the medical mistake... The victim.

Here's the Article:

A child was born in 2001 via c-section and is now suffering from cerebral palsy. Her family believes it was a lack of oxygen during birth and that doctors were too slow in her delivery. A jury in Indiana agreed and awarded them $3.7 Million in the medical malpractice case.

Source:  Injuryboard.com

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At least it appears to be in the northeast.  This just a blog post announcing a settlement.  Note how the post says that the plaintiff will receive $29 Million over the course of her life.  That is because the present value of the settlement may be $3 Million but that is used to purchase an annuity that will provide $29Million in payments for the rest of her life (or some set time).  I tis not clear exactly when payments will stop or exactly how it is structured.

[A] newborn, was born neurologically damaged at birth.  The child's mother came to the hospital complaining of not feeling the baby and bleeding.  Doctors at the hospital placed her on a monitor but failed to detect any abnormalities with the infant.  The child was born 12 days later and at birth could not breathe.  Tests were performed which revealed that the child had suffered a brain bleed while in utero. The child was transferred to New York Hospital for further treatment. Our client, now 7-years-old, cannot walk or talk and has to be fed through a tube. The child will receive $29 million from the settlement over the course of her life.

www.ronvil.com

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For those of you following the botix news and investigation here is a quick link to an article.  Allegan has received a subpoena concerning the promotion of Botox.

NEW YORK (Reuters) - Allergan Inc said on Monday that it received a subpoena from the U.S. Department of Justice investigating the promotion of Botox, a drug best known for its cosmetic use.

The drug maker said authorities were seeking documents regarding promotional, educational and other activities relating to Botox.

Allergan said it believes the subpoena is related to alleged off-label promotion of Botox to treat headaches.

Botox, which is best known for smoothing facial wrinkles, is not approved as a headache treatment.

Although Allergan is conducting trials to investigate the use of the drug to treat headaches, the company said that its policy is to comply with all applicable laws, rules and regulations in promoting its products.

But it noted that doctors are free to prescribe the drug for uses not approved by the U.S. Food and Drug Administration.

Source:  Reuters.com

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Another pretty large verdict.  Often these verdicts make the news because of their size.  Please notice that there is usually an offer to settle for the insurance policy limits or some other number.  In many states if there is an offer to settle and the defendant and the insurance company refuse that offer, then if the verdict is larger than then offer or the policy limits then the insurance company may have to pay the higher number (the verdict).  This is designed to encourage settlements.

A Philadelphia jury on Wednesday awarded $12 million to a woman with terminal breast cancer in her suit against two doctors for allegedly failing to diagnose the disease before it had progressed to an incurable stage.

Specifically here is what the lawsuit alleges. "Lawsuit Alleges"  What that basically means is "Here is what the plaintiff claims happened to her."

The suit alleged that, due to Sutherlin's history of breast problems, including a bloody discharge from her nipple that required a prior biopsy, she was not a proper candidate for a "screening" test in the mobile unit and instead should have undergone a "diagnostic" test.

Magilner testified in his deposition that Sutherlin's questionnaire, which was completed by Fox Chase technicians, made no mention of Sutherlin's surgical history, nor the fact that she had undergone breast reduction surgery in 2000. The suit alleged that Magilner's report erroneously described a "dilated duct" that was "unchanged" and suggested a follow-up test in one year.

But Jones argued in court papers that a comparison of Sutherlin's 2001 and 2003 mammograms showed that the report from the first test made no mention of a dilated duct.

"In short, Dr. Magilner missed a clear opportunity to note the change in the left ductal prominence, which is where Angela Sutherlin ultimately developed a palpable lump and breast cancer was found," Jones wrote in her pretrial memo.

The suit alleged that when Sutherlin had another mammogram in March 2004 at the Albert Einstein Medical Center, another doctor, Susan Summerton, interpreted the films and noted "several small nodular densities," but found that they "remain stable compared to prior studies."

But the suit alleged that no nodular densities had been noted in the prior report, and that Summerton therefore should not have labeled the finding as benign.

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