May/June 2009

A new kid in town: the deep tissue injury

© 2009 The Medical-Legal News

By Frances W. Sills, RN, MSN, ARNP

30-year-old case nets $23M

© 2009 The Medical-Legal News

Expert witness alleges he was defamed by the other side, wins $350,000

© 2009 The Medical-Legal News

• The Gist: Is it a good idea for professional medical associations such as the AMA or the ANA to review expert witness testimony of their members who testify? Should they discipline members for slightly inaccurate testimony? Very inaccurate testimony? What if some “way-out-there” experts are not being accurate or truthful on purpose?
— RC

By Dan Clifford, publisher

Could a well-intentioned expert witness statute make things worse?

© 2009 The Medical-Legal News

OPINION

By Rose Clifford, RN, LNCC, editor

Preemption has its strong points

© 2009 The Medical-Legal News

OPINION

Verdicts & Settlements

Compiled from www.verdictslaska.com; Comments by Rose Clifford, RN, LNCC, editor

© 2009 The Medical-Legal News

Fee setting not the same as illegal price fixing

© 2009 The Medical-Legal News

By Pat Bemis

How attorneys get the most out of their nursing experts

© 2009 The Medical-Legal News

By Patricia Iyer, MSN, RN, LNCC

Arizona jury awards landmark $11 million verdict in assisted living case

© 2009 The Medical-Legal News

• The Gist: The autopsy findings in this case were outrageous, thus dispositive, and probably spurred the jury to award $4 million in punitive damages. Falsification of the medical record likely was an attempt to cover up the severely substandard care the plaintiff received.
— RC

Hot topics in the legal arena: Current Pharmaceutical Litigation

© 2009 The Medical-Legal News

By Rolando Morales, RPh

Botched circumcision yields $2.3M

© 2009 The Medical-Legal News

A boy and his mother were awarded $2.3 million after too much tissue was allegedly removed in the boy’s circumcision, according to the Atlanta Journal-Constitution of March 30. The boy received $1.8 million of the sum for medical treatment and psychiatric counseling.
No punitive damages were awarded.
The article said the boy’s mother alleged that too much tissue was removed by surgeon Haiba Sonyika and that the boy’s pediatrician, Cheryl Kendall, did not return to the hospital when a nurse complained of excess bleeding. The suit claimed that the head of the penis could have been reattached with urological intervention. •

Nevada rethinks caps

© 2009 The Medical-Legal News

The Nevada Assembly in late April passed a bill that would abolish the state’s medical malpractice cap of $350,000 for non-economic damages in cases of “gross negligence,” according to The Las Vegas Sun.
Voters passed the cap in 2004, but a recent hepatitis C outbreak (allegedly caused by sloppy needle handling by a clinic) has turned public opinion. The bill also adds a year to the statute of limitations for med mal actions. •

Wrongful pregnancy claim states a valid cause under negligence; damages OK

© 2009 The Medical-Legal News

In a case of first impression, a Colorado appeals court upheld a woman’s right to receive damages for her pain and medical complications when an unwanted pregnancy resulted in a healthy birth. The case was Dotson v. Bernstein, No. 08CA002 (Colo.App. 2009).
The trial court had dismissed the case for failure to state a claim as it reasoned that no injuries recoverable under tort law had occurred where a healthy baby was born.
The appeals court would not use the terms “wrongful birth” or “wrongful life,” as these terms describe the results of negligence and are not torts in themselves.
The appeals court, in reversing the trial court, said: “…here, plaintiff has stated a valid claim for negligent failure to terminate her pregnancy… plaintiff suffered economic and non-economic damages, including medical expenses and pain and suffering associated with labor, delivery and subsequent medical complications from the birth. These are consequential damages….” •

State House passes repeal of a tough law that gives the drug industry immunity

© 2009 The Medical-Legal News

The Michigan House voted in March to repeal that state’s litigation shield statute for pharmaceutical companies, according to an article in The Detroit Free Press.
The Michigan House is led by Democrats, while the state’s Senate is led by Republicans, where the repeal does not have as much support. Democrats have stressed consumer protection, while Republicans have promoted business interests.
The repeal would give those harmed by FDA-approved drugs legal recourse, according to the story. The lawsuit immunity law has been called the country’s toughest protection for the drug industry.
According to the story, the legislation to kill the 13-year-old law was prompted by adverse consumer episodes and deaths from drugs such as Vioxx and Rezulin. •

$3 million for failure to spot a twisted intestine

© 2009 The Medical-Legal News

A West Virginia woman’s family has settled a lawsuit with six doctors for $3 million, according to the Charleston Post and Courier. The family also settled with a defendant hospital for $250,000.
Heather Sloan allegedly went to the Chester Regional Medical Center emergency room three times complaining of stomach pain, according to the article. Sloan was sent home, however, as the person reading her CT scan did not identify a twisted intestine.
Sloan returned twice more to the hospital before she was operated on, but she died shortly afterward.
Her attorney was Chad McGowan. •

Large award in flesh-eating bacteria case

© 2009 The Medical-Legal News

A federal judge upheld the majority of an $8.5 million judgment award given to a woman who had sued an Air Force base doctor for misdiagnosing necrotizing fasciitis as a simple rash, according to the Associated Press.
Plaintiff Jean Phillips lost the use of one arm. Phillips had sued Dr. Dan McAlpine. McAlpine believed Frazier was an addict and simply looking for drugs, according to the article.
Phillips was the ex-wife of an Air Force captain.
Thomas Keefe was Phillips’ attorney. •

Jury awards $4 million for brain-damaged baby

© 2009 The Medical-Legal News

A Florida jury awarded $4 million to Stephanie Preshong Brown, of Palm City, for delays and subsequent damages in dealing with her distressed infant, according to the South Florida Sun-Sentinel of March 26.
Brown had been carrying twins, though one died in utero. A few weeks later the remaining twin needed to be taken by c-section. The lawsuit alleged that delays in obtaining an operating room contributed to a botched delivery and subsequent brain damage to the child, Jordan, now age 11.
The negligence trial took seven weeks against Good Samaritan Hospital Inc., according to the story.
Attorney Crane Johnstone represented the Browns. •

South Carolina jury awards $4.4 million in brain injury case at birth

© 2009 The Medical-Legal News

PRESS RELEASE

ROCK HILL, S.C., /PRNewswire — A South Carolina jury in mid-February awarded $4.4 million to the parents of a child who suffered a brain injury at birth. The award was against Piedmont Hospital.
The jury said the hospital was at fault when it assigned a nurse trainee to monitor Robin Wilson, who arrived three days before her scheduled induction with nausea and vomiting. The nurse misread fetal heart monitoring data showing the baby was in dire distress and needed emergency intervention, according to the plaintiffs.
Sierra Wilson was born in 2003 with severe brain injury due to oxygen deprivation and later developed cerebral palsy. She died in 2008 of complications from cerebral palsy.
“When medical professionals fail to meet reasonable standards of care they need to be held accountable, and the jury agreed with that,” said Ken Suggs, of Janet, Jenner & Suggs, Columbia, S.C., attorney for the couple.
Robin and her husband, Brice, of Ft. Lawn, sued Piedmont Hospital, doing business as Amisub, in the York County Court of Common Pleas. •

Florida plans to get tough on Medicaid fraud

© 2009 The Medical-Legal News

Florida aims to toughen up on Medicaid fraud with respect to home health agencies.
The state legislature is expected to pass a bill (No. 1986) that increases standards on providers, increases penalties and that allows for web posting of the names of sanctioned and terminated Medicaid providers, according to the Florida Agency for Health Care Administration.
Medicaid fraud reporting also will be encouraged by offering monetary rewards and by giving civil immunity for people who report suspected fraud.
The bill specifically targets the Miami-Dade County area.
Holly Benson, of the Florida AHCA, alluded in an e-newsletter to the problem of fraud in home health agencies there. She said providers are constantly finding creative ways to “get rich” off the Medicaid program and added: “They bill for services they don’t render, they provide more services than are prescribed, they bill for more hours than there are in a day.”

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