Archive for Medical Malpractice

A Good Case Is Not Enough Without A Good Lawyer

Sometimes even outrageous medical misconduct requires expert legal representation to meet the court’s standards for awarding punitive damages. Consider the case of Tammy Cleveland, suing a doctor and a hospital for the death of her husband, Michael.

Michael Cleveland, age 46, collapsed after suffering a heart attack in Tops Friendly Market in Tonawanda, New York on a Friday night in October 2014. He was put into an ambulance and rushed to the emergency room at DeGraff Memorial Hospital in Buffalo, where a doctor pronounced him dead 25 minutes later. 

Tammy couldn’t accept the pronouncement of her husband’s death — because she could see he was still breathing. She could see his moving arm. Four times she insisted that doctors or nurses come in to confirm Michael’s death, and four times they refused. 

The coroner was called. What the coroner saw on his arrival was Mr. Cleveland struggling to stay on a gurney as he was being taken to another ambulance to be treated at another hospital. The coroner declined to issue a death certificate on the grounds that dead people don’t move.

The attending physician had eventually been persuaded to check Michael’s vital signs nearly three hours after pronouncing him dead, exclaiming “My God, he’s got a pulse,” according to Tammy. Only then was Michael rushed to a hospital that could give him the treatment he needed.

Michael finally got the care he needed for a 100 percent blockage of a coronary artery at another hospital, but he got it too late. He died at the second hospital the next day. His grieving widow later sued the doctor and the hospital for damages for intentional infliction of extreme emotional distress. That part of her case was thrown out of court.

How could a claim for such obvious injury be rejected by a court? The judge accepted the argument of the doctor’s lawyer that the alleged malpractice had to be not just negligent but evil and malicious. Furthermore, the judge ruled that since Tammy Cleveland hadn’t chosen to seek psychiatric care to deal with her grief, her emotional distress could not have been very severe.

The ruling would have been the end of Tammy’s case if she had not had legal representation who firmly believed in her cause. Look at the courtroom dialog reported in The Buffalo News and paraphrased below:

“There is no doubt that Mrs. Cleveland endured enormous grief,” the appellate judge said. “But to establish emotional distress, medical treatment is required, unless there is evidence greater than that.”

“In cases where grief is clearly evident, it can be presumed,” Tammy’s attorney said.

“You’re saying this is one of those cases?” the judge asked.

“This is one of those cases,” Tammy’s lawyer replied.

Tammy Cleveland’s case was sent back to the lower court to continue.

To win in court, it’s not enough to be obviously injured. To be a successful plaintiff, you need a skilled attorney who recognizes the justice of your case.


Medical Malpractice As A Result Of “Never Events” Errors

Over eight years of analysis, John Hopkins’ patient safety experts, reported, in 2016, that medical errors are the third highest cause of death in the United States of over 250,00 deaths per year. Because of the high expectation of performance, “physician burnout” was said to be the cause of medical errors. Physician burnout occurs in more than 54% of physicians. The emotional symptoms of “burnout” are due to exhaustion, the dehumanizing viewing of patients as objects, and the accompanying cynicism.

A study of the relationship between the nurse’s burdensome amount of work and patient deaths found that an increase in one surgical patient led to a seven percent increase in the likelihood that a patient would die within the first thirty days of admission. The most damaging errors that a physician can engage in are errors referred to as “never events.” “Never events” are errors made by physicians that should “never, ever occur.” Research has shown that ” never events,” between September 1990 and September 2010, accounted for 9,744 paid malpractice claims. One half these claims were the result of surgery using the wrong procedure or the wrong part of the body and only 17 claims were the result of an operation on the wrong person.

Some of the more noted “never events” have been published in the media. In early April 2019, an Iowa jury awarded to Rickie Huitt $12.25 million because his prostate gland was removed, which was misdiagnosed as having cancer. His pathologist was treating two patients in 2017 and mixed up their slides containing tissue samples. The hospital’s anatomical laboratory mixed Mr. Huitt samples with another person who was diagnosed as having prostate cancer.

The mistake led to an incorrect diagnosis which directly resulted in his prostate gland being removed. The operation also damaged nearby nerves. Mr. Huitt became impotent and incontinent. He felt that he lost his manhood and active sexual relations with his wife due to the side effects of the surgery, which included stress and humiliation.

How could a highly intelligent surgeon and pathologist commit this grievous error? The surgeon/pathologist admitted to her errors of unnecessary surgery and cancer misdiagnosis, which can best be described as a “never event” and possibly the tragic result of “physician burnout.”

Medical Mistakes Ruin Lives

In April 2017, Rickie and Judy Huitt were at The Iowa Clinic, located in Des Moines, where Rickie was scheduled for an operation. Earlier that year, the retired John Deere factory worker had been diagnosed with prostate cancer that required surgery. Dr. Joy Trueblood, one of the pathologists at the clinic, performed the procedure, removing his prostate gland. However, after another pathologist inspected the purportedly affected gland, it was determined the organ was never cancerous.

What Happened?

It seems as though Dr. Trueblood confused tissue sample slides from another male patient, that had cancer and attributed them to Mr. Huitt. The outcome of the surgery caused local nerve damage to the area, which resulted in incontinence and erectile dysfunction. It is difficult to comprehend the emotions the couple experienced after discovering the truth about this unnecessary treatment.

Unfortunately, this happens more than people could imagine. According to a study released in 2016 by Johns Hopkins, more than 250,000 cases of medical errors are the cause of death in the United States. Although Rickie Huitt survived, the wrong action taken by the physician made a devastating impact on him and his wife’s life.

Proper Compensation…

The couple filed a suit against The Iowa Clinic and Dr. Trueblood, seeking 15 million dollars in damages; however, Jack Hilmes, the attorney representing the clinic suggested that the sum of money awarded should be only $750,000. He stated that Rickie was 67 years old and although the operation he had was not required, he could still perform activities, such as mowing the yard and driving a vehicle to pick up his grandkids from school.

When Mrs. Huitt took the stand, she tearfully stated that the love life they had before had diminished and because of involuntary urination, he has to use several urine-absorbent pads every day. In addition, she felt their lives would never be complete again because of this major error by the medical community.

Nick Rowley, a famous malpractice suit lawyer, was the leader of the four-member team of attorneys The Huitts had hired to present their case in court. In his closing argument, Mr. Huitt told the jury that Rickie had lost his manhood and it could not be restored. They deserved the amount for which they were asking.

In the end, the Polk County jury awarded Rickie and Judy Huitt 12.25 million dollars.

Unsigned Letter Raises Questions About Heart Transplant Program

David Kveton passed away after a failed heart transplant at Baylor St. Luke’s Center last year, leaving behind a widow and adult children. Shortly afterword, his widow, Judy Kveton received a letter that led her to question the quality of care her husband received. The letter claimed that the director of the heart transplant program, Jeffrey Morgan, had many “mishaps” during surgical procedures. It also stated that hospital administrators had been warned that he was not competent.

Judy Kveton filed a lawsuit alleging that her husband died due to mistakes made by doctors and nurses at St. Luke’s. In addition to citing the letter, the lawsuit claims that St. Luke’s manipulated the numbers to exaggerate the number of favorable outcomes in order to get people into the program. According to the lawsuit, “luring them into a deadly situation.”

St. Luke’s heart transplant program was one of the best in the country, but that seems to have changed in recent years. Some surgeons have left, it is believed because of concerns with Dr. Morgan and the quality of care patients receive. Some doctors stopped referring their patients to St. Luke’s. In fact, recent survival rates have it as one of the lowest in the country, and the hospital nearly lost its Medicaid funding due to the abysmal statistics. The national survival rate is 91% annually, with numbers for St. Luke’s for the last two years being 85%, far below the national average.

Medical records revealed a very different story from the one that Mrs. Kveton received from Dr. Morgan regarding her husband’s condition. The initial surgery took longer than it should have, leaving the donor organ on ice for over four hours, and decreasing the chances of the transplant being successful. The heart was struggling after the surgery but began to perform better.

There was another complication, however. A nurse turned Mr. Kveton over in bed when his chest was still open, which detached pacing wires from his heart. Backup wires should have been attached to prevent this complication, but the surgical team failed to do so. This began a downward spiral in which the heart began to perform worse, also causing Mr. Kveton to suffer a stroke. He endured more surgeries and another stroke before his family made the heartbreaking decision to remove him from life support.

Mrs. Kveton’s lawyer states that she isn’t motivated by money, but seeks “answers, accountability, and change”. St. Luke’s has made changes to its staff and replaced Dr. Morgan as director, although he remains on the staff.

 

The Dangers of Fentanyl in Clinical Use

Fentanyl is a dangerous opioid that is much more powerful than morphine. The National Institute of Drug Abuse reports that Fentanyl is 50 to 100 times more potent than morphine.

Fentanyl is normally used in a healthcare setting for severe pain. When opioids are used, the dosage needs to be carefully administered and the patient needs to be closely monitored for ill effects. Since opioids are so powerful, overdoses are common. The Center for Disease Control reports that over 64,000 Americans die of overdoses each year. More than half of these deaths are caused by opioids.

Most people think these overdose deaths only occur from the misuse of opioids as street drugs. Yes, it is true that many deaths come from this type of misuse; however, there are also deaths caused by serious mistakes made by healthcare practitioners.

Consider the case of 83-year-old Nelson Tyler. After recently coming home from the hospital, he developed abdominal pain. He called 911. He was taken by ambulance to the emergency room at Cox Medical Center South in Springfield, Missouri. This happened on February 4, 2016.

While being treated in the emergency room, the nurse gave Tyler two doses of 25 micrograms each of Fentanyl. Subsequently, Tyler was given a third dosage of 100 micrograms of Fentanyl by the nurse who then left the patient alone in the room. When the nurse returned, about ten minutes later, Tyler was in cardiac arrest from the drug overdose. He was unresponsive and remained that way until he died three days later.

The family sued the hospital also naming the doctor and the nurse. The lawsuit alleges that Tyler was given too much Fentanyl and was then left unsupervised, which ultimately resulted in his untimely death.

Tyler is survived by his daughter, Allison Buehler. She describes her father as a kind, intelligent man who was a veteran of the Korean War. The family’s motivation for the lawsuit is to prevent this type of medical malpractice, which caused Tyler’s death, from happening to another family.

Summary

The lesson learned from this sad story is that Fentanyl is an extremely dangerous drug. In a hospital setting, it needs to be carefully administered and then the patient needs to be closely monitored for life-threatening ill effects.

Fifth Lawsuit Filed Against Kansas Doctor, Opioid Maker

Reports have indicated that a fifth lawsuit has been filed in Kansas against a doctor and an opioid maker involved in a prescription kickback plot. The maker of the drug is said to have been bribing doctors to recommend its strong fentanyl spray.

The suit that was filed in a Johnson County court last week, is comparable to three others brought in Johnson County and the fourth one in Leavenworth County against Insys Therapeutics and former Mid-America Physiatrist Steven Simon. It was established that one of the patients, Timothy Farquhar presented the lawsuit last week to Johnson County against his former doctor Steven Simon, and Insys Therapeutics.

Farquhar claims that he saw Simon from 2001 to 2017 and allegedly prescribed him exorbitantly large doses of opioids which includes the fentanyl spray Subsys, for pain associated with a spinal injury and cyanide poisoning. The victim further indicated that he wasn’t notified of the dangers of addiction and became dependent.

The federal government has claimed that Insys illegally used its physician speaker program to fund kickbacks, based on how much Subsys they prescribed.

“Plaintiff became dependent upon and addicted to opioid pain medications, including Subsys, which were repeatedly prescribed to him without proper medical care, treatment or justification,” the suit alleges.

Simon’s attorney, however, didn’t respond to a request for an explanation in regards to this tale on Monday. However, he and Simon have both in the past said the doctor’s prescriptions were based entirely on clinical judgment rather than payments from drug producers.

 

 

It was further reported last year that Simon was the top paid Subsys speaker in Kansas and among the top 10 nationally, raking in more than $200,000 between 2013 to 2015. Less than a month later the FBI served a search warrant at Simon’s clinic. Simon’s former ally indicated that federal agents seized patient records for individuals whom Simon prescribed oral fentanyl. Simon has however not been charged with any crimes

Federal prosecutors have imposed criminal charges against half-dozen Insys executives and the billionaire founder of the company John Kapoor. They’ve all pleaded not guilty with their trial in Boston scheduled for January.

Family Sues a Florida Hospital Memorial Doctor for Medical Malpractice

Two years ago, Kylie Danielle Truax, a 14-year-old teenager fell ill in Daytona Beach. She complained of feeling weak and having pain in her arms and shoulders. Her father took her to Florida Hospital Memorial Hospital Centre where Dr. Lana A. Elder admitted her to an emergency room. Unfortunately, Kylie passed away four hours later. Stacy Truax, Kylie’s mother, sued Dr. Elder and Florida Hospital for malpractice.

What transpired before Kylie’s Demise?

Shortly after admission, Kylie developed severe anxiety which affected her breathing. Her heart rate rose dramatically. Dr. Elder didn’t recognize any symptoms of heart failure. Instead, she administered intravenous fluids to Kylie which exacerbated the teenager’s breathing complications.

Kim Bouck, Kylie family’s attorney accused Elder of treating the teenager for sepsis. She listed sepsis as a possible sickness in her diagnosis. However, she didn’t include myocarditis.

Case Proceedings

Kim said that hospital tests performed produced unusual results for Kylie’s heart. Nevertheless, Dr. Elder didn’t prescribe the right medication. Kim argued that Elder ought to have known that heart and lungs are highly susceptible to intravenous fluids in such a scenario.

In response, Lindsay Cashio, the medical center’s spokeswoman stated that she had no comment on the litigation. She cited patient privacy statutes and claimed that Dr. Elder was no longer an employee at the Florida Hospital.

However, in a court statement, Larry D. Hall, the hospital’s lawyer denied that Dr. Lana was at fault. He further stated that myocarditis caused Kylie’s death. She developed the health condition several days before she was admitted into the medical facility. He claimed that medical personnel took appropriate actions to save the minor’s life.

The News-Journal send several emails to Dr. Lana concerning the lawsuit in Volusia County Court but she didn’t respond. Her attorney, Howard Citron declined to comment on the ongoing litigation. In another court document, Citron stated that DR. Elder wasn’t at fault, that she adhered to the Florida law on standard healthcare.

Past Accusations

In the recent past, the Michigan Attorney General’s office had questioned Dr. Elder regarding her painkiller subscriptions. The Michigan Board of Medicine’s disciplinary committee placed her on one-year probation on March 14, 2018.

Elder moved to Florida from Michigan in 2009. Between July 2014 and October 2015, she worked as a part-time doctor. Elder attended to patients two twice per month. From September 2014 to November 2015, she administered vast quantities of controlled substances several days in a month. Elder issued 1,744 subscriptions within ten months most of which comprised oxycodone.

Defendants

EmCare was the defendant in the lawsuit. During Kylie’s demise, EmCare offered emergency room staff for the medical center. Cashio said that the firm no longer transacts with Florida hospital.

 

Conflicting Cause-of-Death Theories in San Francisco Vehicular Manslaughter Trial

A driver flicks a cigarette butt out of the window of their car, which ignites a pile of dry leaves on the front lawn of a single-family residence. Embers from the fire are blown onto the front porch of the house, which then catches fire. The fire department arrives but inadvertently sprays accelerant on the fire instead of water. The house burns to the ground.

Who, ultimately, is at fault? There would have been no fire at all were it not for the cigarette butt and the carelessness of the driver. But if the fire department arrived in time and then made the problem worse, not better, what is their ultimate responsibility?

James Harris, a San Francisco city worker, was driving a car registered to the Department of Public Health when he struck and killed wheelchair-bound, 38-year-old Thu Phan on February 5, 2016. He did so while attempting to make a left turn from a restricted lane reserved for buses, taxis, and bicyclists. Phan was in the crosswalk at the time of the accident.

Thrown from her wheelchair, Phan broke both legs and multiple ribs. The accident also caused her brain to start bleeding.

Prosecutor Kara Lacy told jurors that due to his negligent driving, Harris was to blame. “That negligence is what caused Ms. Phan’s brain to bleed and what caused her to pass away.”

Public Defender Dana Drusinsky suggested otherwise. Phan weighed 52 pounds and was less than three feet tall due to osteogenesis imperfecta, a genetic disorder. Drusinsky says that the treating hospital, San Francisco General, took a serious but non-fatal injury and made it much worse. “Everyone thought she would be okay,” said Drusinsky. “There was no indication that she would pass away.”

Drusinsky contended that while receiving treatment at San Francisco General, Phan was given intravenous fluids in amounts far too great for someone of her size. And regardless of the genesis of her injuries, she would not have died if her medical care had been competent.

“The accident didn’t kill her, but the gross medical negligence in the hospital did,” Drusinsky said.

In February 2017, Pham’s parents settled a wrongful death suit with the city for $2.9M.

Wake Up America! The Opioids Are Taking Over Medicine, One Dosage At A Time

Of the 77 million Americans that use opioids up to ninety-one Americans die from an overdose daily. Opioid medications are taken for chronic pain which occurs in at least fifty million Americans. It is ironic that the medical profession and the pharmaceutical companies are in the middle of this opioid epidemic because physicians continue to prescribe Opioids despite the fact that they are highly addictive. Further, selling and manufacturing Opioids is, at yet still legal, but only can be dispensed with prescriptions. It is a well-known business practice for drug company employees to personally visit their physician clients to introduce the company’s specific drugs. Opana ER was wrongfully marketed for a more extensive treatment of ailments, which included back pain. Back pain requires a more prolonged use of Opana ER, increasing the risk of addiction.

While Canada is facing its opioid crisis, not all countries have followed the same route as the United States and Canada. For instance, the Germans use opioids at the same rate as the Americans but do not face a crisis because there is an emphasis on the proper ways that a physician should prescribe opioids. Further, in Japan, it is not as easy to obtain a prescription of opioids than it is from the physician in the United States. Thus, the emphasis in Germany and Japan is to use opioids to support palliative care to improve the patient’s quality of life.

The United States has looked at the practices of drug companies in marketing opioids to the public and physicians. Andy Beshear, the attorney general of Kentucky, took legal action against Endo Pharmaceuticals and Endo Health Solutions for the deceptive marketing and manufacturing of Opana ER a robust painkiller. These pharmaceuticals minimized the risk of taking Opana ER.

Two hundred Kentuckians, without knowledge of the risks of Opana ER, perished in 2016, while the pharmaceuticals’ misrepresented that its competitors’ drugs were at a higher risk than that of Opana ER.

What was most troubling, was that Endo misinformed physicians that risk screening tools would identify people that would be predisposed to find Opana ER addictive. Endo Pharmaceuticals has withdrawn Opana ER from the market in July 2017.

Contaminated-scope law

After Richard Bigler’s death due to pancreatic cancer caused by a contaminated Olympus scope, Theresa Bigler filed a lawsuit against Virginia Mason Medical Center. In turn, the hospital filed a case against their supply company, Olympus. However, a 12-member jury determined that the hospital also shared some blame and thus they needed to compensate the affected family. The compensation was set at $1 million whereas Olympus was ordered to pay $6.6 million damage fee for a superbug outbreak which had affected the hospital’s reputation.

Olympus was impressed with the jury’s decision, and one of its officials gave a condolence message to the Bigler family on behalf of the company. In their statement, Olympus appreciated the jury for acknowledging that their duodenoscope design was safe and was not the cause of Mr. Bigler’s death. However, the jury blamed Olympus for failing to give adequate warnings regarding the scope and also instructions on how to safely use it. This, according to the jury, led to the death of Bigler and also ruined the reputation of Virginia Mason Medical Center. One member of the jury claimed that Olympus hadn’t been playing by the rules for a long time and hence the verdict was appropriate since it held the company accountable.

According to the jury, Olympus was supposed to prioritize patient’s safety over their profit gains. One of the Olympus experts admitted that trials and lawsuits could help in behavioral change hence the ruling would most probably convince Olympus and other device managers to work by the rules. Most medical and legal experts were surprised at how Olympus fared in the case considering that there were numerous similar lawsuits against the company.

There are more than 25 families and patients who have sued Olympus due to wrongful deaths, negligence, or fraud. As a result, federal prosecutors are investigating Olympus to determine their potential role in patient infections. Considering that Olympus duodenoscopes are used to treat and diagnose problems in the digestive tract such as bile duct blockages, cancers, and gallstones, it is imperative that the devices are made with utmost precision.

Evidently, Olympus acted recklessly by failing to warn U.S. hospitals about previous superbug outbreaks and also for not fixing an outright design flaw in their scope which made disinfection and cleaning hard. On the other hand, the hospital should have asked for a cleaning and disinfection manual from Olympus to ensure their patient’s safety. All in all, the decision was fair for all the affected parties.