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

The Oregon Supreme Court has upheld a five-year statute of limitations on medical malpractice lawsuits involving minors. Kelly Christiansen had filed suit against the Providence Health System because it was alleged that their doctor did not recognize fetal distress and perform an emergency c-section.

Her son had been diagnosed with various developmental disorders and partial epilepsy that other doctors blamed on fetal distress causing "an anoxic event," or lack of oxygen that required resuscitation after birth.

Her son was born eight years ago but the Oregon statute of limitations for medical malpractice cases for minors is five years. Her attorneys argued that the original Oregon Territory had a provision for filing suit up to eighteen years of age and that the Oregon constitution prohibited changing that original provision.

But in a unanimous opinion by Chief Justice Paul De Muniz, the court rejected her argument.

It said it agreed with Christiansen that the five-year limitation "can lead to harsh consequences in some cases," but there is nothing in the state constitution to prevent the Legislature from setting the limit as it did.

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A judge in Fulton County, Georgia, has struck down the cap on monetary awards in a medical malpractice case.

Superior Court Judge Marvin Arrington wrote that the cap was unconstitutional because it allowed protection to the medical profession that was not allowed to other defendants such as manufacturers of defective products.

"It is absurd to say that if you get injured by a product that the jury can decide your noneconomic damages, but if you get injured by medical malpractice, it can't," said Trent Speckhals, one of the lawyers for Cheon Park, the plaintiff in the case.

Judge Arrington's decision only affects this case but, if appealed, will open the door for the Georgia Supreme Court to overturn the caps for malpractice cases.  If not overturned it would effectively mean that only the wealthy could get large settlements because they have large incomes that could be lost because of malpractice.

"The statute effectively puts substantial limitations on the rights of the poor and middle class to recovery while leaving the right to virtually unlimited recoveries unimpeded for the wealthy," Arrington said. "The disabled manager of a hedge fund, a corporate CEO, an entertainer or such other person whose income is in the tens of millions of dollars has a claim under Georgia law that would dwarf the amount awarded in any case for pain and suffering."

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Month's earlier the pharmacist had asked for more staff.  Why?  To "decrease the pharmacist's stress"

When Tabitha Jones picked up her stepson's medicine at a Walgreens store near Nashville in 2004, she had no way to know the pharmacy was so busy that its manager had asked for more staffing months earlier to "decrease the pharmacist's stress."

...

A USA TODAY investigation found evidence that corporate policies — such as allowing or encouraging pharmacists to fill hundreds of prescriptions daily and rewarding fast work — can contribute to errors like the one that befell Trey Jones.

Source:  USA Today:  Pharmacy Errors

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You just can't let this happen.  The hospital should have systems in place to protect against this.  The emotional trauma is extreme and heartwrenching.

Here's the story.

BY BRYON OKADA

FORT WORTH -- A Johnson County couple filed a lawsuit Tuesday afternoon alleging negligence and gross negligence against Huguley Memorial Medical Center of Fort Worth following a July incident where hospital staff sent their newborn’s corpse to the cleaners with the dirty laundry.

According to the lawsuit, it took the hospital staff 19 hours to locate the missing body. By then the unpreserved body had been crushed and disfigured.

Background

On July 8, Kourtney McGee of Cleburne was in her second trimester when she went to Huguley because she was bleeding. She gave birth prematurely to Jacob Dwayne Robinson, who did not survive.

Staff told McGee and Milburn "Pete" Robinson of Alvarado, the baby's father, that the body would be taken to the morgue. However, when the funeral director arrived at the hospital, he was told the body could not be found. The baby's body was not refrigerated when it got to the morgue. Instead it was sent to a commercial cleaner with the laundry.

The lawsuit contends that Huguley Memorial Medical Center had a duty to care for, handle, maintain and/or prepare for burial the body of Jacob Robinson. It breached its duty by "mishandling, misplacing, and disfiguring the body..."

Damages

According to the lawsuit, the family has sustained "severe emotional distress and mental anguish" and are seeking punitive and exemplary damages.

How did the baby end up in the laundry?

Unclear.

"That’s one of the things we want to know," said Fort Worth attorney John David Hart, who is representing the couple. "How could this happen, that these parents lost their child, lost their son, then the hospital doesn't have a procedure or policy in place for dealing with it."

What is Huguley’s response?

"Our sympathies go to a family obviously who had a stillborn situation -- everyone feels bad about that," said Dallas attorney Michael Stewart, who is representing Huguley. "As for the allegations, we deny those and we deny that the hospital has done anything inappropriate."

With pending litigation, Stewart declined to release more information on the case.

What is the difference between negligence and gross negligence?

Negligence is the failure to extend ordinary care. Gross negligence is negligence that shows either reckless conduct or conscious disregard for the rights of the family.

Source:  Star-Telegram.com

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Tick Tock, Tick Tock.  Does it seem like it takes forever when you go to an emergency room?  You may actually be on to something there.  A study released recently shows that emergency room wait times are increasing.

Emergency room wait times across the country increased 36 percent between 1997 and 2004, according to a Harvard study published today.
...

The study, the first providing detailed analysis of national trends in emergency room waits, showed wait times increased to a median of 30 minutes in 2004 from 22 minutes in 1997. Such an increase likely has a negative impact on patient care and may result in more people leaving the hospital without seeing a physician, the study's authors said.

"Patients who present to the emergency room with time-sensitive conditions may be harmed because they're not receiving the care they need in a timely way," said the lead author, Dr. Andrew Wilper, a fellow in internal medicine at Harvard Medical School. "There's prolonged pain and suffering."

Source:  Chron.com

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The Virginia supreme court recently heard arguments about whether physician foundations could get immunity from medical malpractice lawsuits because of their charity work.

The state Supreme Court heard arguments yesterday that pitted the rights of patients injured by negligence against the medical community's need to preserve its financial well-being in the face of growing indigent-care demands.

Lawyers on both sides of the issue have described it as the most significant matter taken up by the court regarding medical malpractice since 1990, when the Virginia Supreme Court upheld the state's limit on malpractice awards.

If successful, tax-exempt physician foundations in Virginia employing about 1,200 doctors and supporting the state's three medical schools could win immunity from malpractice suits because of the charitable care they provide the poor.

Medical schools claim they are covered because of the charity work they perform while plaintiff lawyers are objecting and say that granting this immunity will shield corporations whose real motive is profit not charity.

Source:  InRich.com

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What a scathing report.  9 deaths caused by treatment at a VA hospital in Illinois.  What makes VA hospital malpractice claims interesting is that they are often governed by a federal statute (The Federal Tort Claims Act).  To pursue a medical malpractice case under that act involves a different procedure and the claim is filed in Federal Court.

Substandard care at the Marion VA Medical Center left nine patients dead and 34 others seriously injured during a two-year period ending last September, investigators reported Monday.

Ten of the 34 injured patients later died, but investigators were unable to determine if the substandard care they received at the Downstate medical facility was the cause.

A report by the medical inspector of the Veterans Health Administration, released Monday, detailed a long list of serious problems at the hospital, including a surgical program "in disarray" and "fragmented and inconsistent" administrative oversight.

Source:  Chicago Tribune.com

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A jury in Cook County handed down a record verdict recently.  $22 million.

A Cook County jury has awarded a record $22 million to the family of a 34-year-old woman who died in 2003 from complications during delivery at an Evanston hospital.

The family of Rachelle Bentivenga alleged that hospital staff failed to properly treat her high blood pressure during labor and that she suffered a massive brain hemorrhage as a result.

Source:  Chicago Tribune

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Recently in in West Virginia a justice said that the West Virginia Medical Professional Liability Act was creating "pointless procedural hoops"  that were taking away from the courts being able to actually answer the factual questions.

Here is a portion of the article itself really describes the problem that was presented to the court: The full article link is at the end of this post.

The article by Justin D. Anderson is titled..

Justice says medical malpractice reforms fueling absurd cases

...

The plaintiffs sued Charleston Area Medical Center and Thomas Memorial Hospital as well as the makers and distributors of the sutures.

The Kanawha Circuit Court dismissed the lawsuit last year because of the way the plaintiffs sued.

The plaintiffs brought the suit against the hospitals as a straight products liability issue, not a medical malpractice issue.

The lower court found - and justices agreed - that the lawsuit should have complied with the requirements of the Medical Professional Liability Act of 1986 because it stems from the administration of health care.

The state Supreme Court reinstated the lawsuit, but still ordered the plaintiffs to comply with the act.

The act has been tweaked in recent years as legislators have tried to limit malpractice lawsuits in the state. Critics said a high number of unfounded complaints were causing malpractice insurance to skyrocket and wreaking havoc on the state's legal system.

Under the act, plaintiffs have to file pre-lawsuit notices to the defendants and a qualified expert has to say the suit is valid.

Also, under the act, the plaintiffs' non-economic damages will be capped at $250,000 and $500,000 for other damages.

Starcher called the pre-lawsuit requirements "pointless procedural hoops" because a jury could determine whether or not the sutures were safe.

Starcher said the act itself wouldn't affect a jury's finding as to whether or not the sutures were contaminated.

"To the contrary, application of the (Medical Professional Liability Act) to the instant case clearly demonstrates the absurdity of the (act), and demonstrates why the Legislature should exercise restraint when it attempts to meddle with centuries-old common law principles," Starcher wrote.

He continued, "The only impact the (act) might have is to deprive injured plaintiffs of their rightful damages, by capping the damages that can be recovered at an arbitrary amount that has no relationship to the evidence."

In harmony with Starcher's dissent, Chief Justice Robin Jean Davis, in a footnote to the original opinion in this case, declared that the pre-lawsuit requirements violated the state constitution, which says the Supreme Court makes such rules, not the Legislature. The constitution also guarantees access to the courts for all people and justice administered without "sale, denial or delay."

(emphasis added.)

The last bolded quote is the biggest problem with caps on damages.  They are arbitrary.  The nice thing about the court system is that it allows the individual to show what they are all about.  Each person is different and that is a major point behind the legal system. 

California has had this problem for years.  An arbitrary cap was set on damages and all that has done is save insurance companies money and keep seriously injured people from recovering fully.

Read the Full article at The Charleston Daily Mail

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The National Center for Policy Analysis has released a report proposing that medical malpractice cases be moved completely out of the legal system and be handle by contract. 

The idea appears to be that you agree with your doctor or other medical care provider ahead of time what the value  of your life or injury would be.  Then if you are injured  in some way you get paid based on that contract.  So how does the doctor pay for that agreed to injury amount?  They buy insurance, but this time the insurance company knows what the max payout will be because of the contract.

Will this reduce lawsuits, probably. 
Will it fairly value malpractice claims?  I doubt it.
It sounds like it will allow insurance companies to more concretely lock in their profits as opposed to their taking on risk.  So is it about risk or profits.

In any event you can read the about the NCPA report at this link.  Medical Malpractice suggestions

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Occasionally I will post about a cerebral palsy settlement.  I don't do it all that often, but two articles today. One from Australia  and one from the UK that I also wanted to post.  Why?  Well, I merely wanted to raise awareness that cerebral palsy lawsuits or settlements or whatever are not just an American creation.  They happen all over the world.  The legal systems just deal with them differently.

This settlement from the UK. 

Court awards £5m to brain-damaged boy

Hospital Admits to Drug Folly

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