Verdicts and Settlements

by • January 1, 2008 • UncategorizedComments Off on Verdicts and Settlements2119

Medical Malpractice Cases

Surgery Malpractice, Orthopedics Malpractice, Nursing Home Malpractice, Medicine Malpractice & Anesthesia Malpractice

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

Anesthesia

• $1 million verdict after $275,000 settlement. A man had an appendectomy in September 2000 and died of a sudden heart attack in July 2001. At the time of the appendix surgery a preoperative EKG was done, which was abnormal. The results of the EKG were never shared with the patient’s doctors — the EKG showed a prior myocardial infarction and coronary artery disease. The hospital, surgeon and anesthesiologist were sued. Dr. Young, the anesthesiologist, contended that the EKG was not in the patient’s record at the time of surgery. The EKG had been ordered by an ER doctor and Young had never seen it, according to Young. The EKG became a part of the decedent’s chart at some point, however. Young offered as a defense the possibility that a sudden ventricular fibrillation could have killed the patient, and that such a condition would not have been seen on the EKG. He also raised the defense that the cause of death was unknown. The decedent patient was cremated, so no autopsy was performed. A $1 million verdict was returned for the decedent’s plaintiffs against Young. The hospital and surgeon settled for a combined $275,000.Rotterman v. Young, Buchanan Co., Mo. Plaintiff experts: Edmund Sonnenblick, MD, cardiology, Kris Sperry, MD, pathology, Barry N. Swerdlow, MD, anesthesiology. Defense experts: Mark A. Hlatky, MD, cardiology, Brian Friedman, MD, cardiology, Michael F. Roizen, MD, anesthesiology.

• RC: The EKG report most likely had not made it into the medical record. However, that does not negate the anesthesiologist’s responsibility to check the results of the EKG for abnormalities — it is within the established standard of care. An abnormal EKG would have necessitated a full cardiac workup. 

Medicine

• $500,000 settlement. A 42-year-old man went to an urgent care clinic complaining of chest pain and pain radiating down his arms. He also had shortness of breath upon exertion and had suffered these symptoms for about two weeks. The man had a history of hyperlipidemia (high levels of lipoproteins in the blood, usually indicating risk for cardiovascular disease), his father had died of heart problems and had undergone bypass surgeries prior to his death, and the man’s brother had heart conditions. The man was 5’ 7” tall, weighed 263 lbs. and had elevated blood pressure. The doctor diagnosed chest pain, but did not diagnose the cause of the pain, did not order any lab work, did not take a history and did not have the patient’s medical records. The man was sent home with a prescription for Albuterol® and an appointment to have a stress EKG done in the future. The man died five days later of a heart attack. He had two survivors. The plaintiffs claimed that an inadequate medical history was taken, an EKG should have been done STAT, lab tests should have been done and Albuterol should not have been prescribed without clear knowledge of what was causing the chest pain. Plaintiff expert: Stephen Berens, MD, cardiology.

• RC: Urgent care clinic cases frequently stem from diagnoses based on inadequate medical histories and incomplete physical examinations, evidenced by a lack of documentation.

Nursing homes

• $976,784 verdict. A 70-year-old man was a bilateral below-the-knee amputee and a kidney transplant recipient. He was transferred to a nursing home after hospitalization and was taking more than 20 medicines – three of which were customary immunosuppressants. He was transferred to another nursing home after a one-month stay at the first home. The second home received one page of the two-page prescription order sheet. Neither a doctor at the second home, nor a nurse practitioner, noticed the discrepancy between the discharge summary medication list and the prescription order sheet in spite of a note at the bottom of page one that said “see page 2.” As a result of the failure to have the complete prescription list, the man was given only one of the three immunosupressants he needed. Within a few months his body began to reject his transplanted kidney — the man’s kidney had been working properly for four and one-half years prior. He suffered acute renal failure and died within a short time. The first home contended that the second home had received the complete list of drugs. The defendant doctor insisted that a nurse should have noticed the discrepancy, that the man’s nephrologist failed to locate him in follow-up, and that the man would have died within a couple of years anyway. Estate of John D. Hess v. Manorcare Health Services, Dr. Norman Johnson and Health Professionals, Tazewell Co., Ill. Plaintiff experts: Deborah Karas, RN, Daniel J. Glicklich, MD, nephrology. Defense experts: Lawrence Plummer, DO, internal medicine, John Fung, MD, nephrology.

• RC: Nursing home cases’ records can be voluminous, making screening for merit tough. Finding the single key that underlies cause of injury is vital to a positive case outcome.

• $800,000 verdict. A nursing home resident was charted as having his tongue protruding from his mouth, having his teeth clamped onto his tongue, an inability to raise his arms and an inability to open his mouth. The man suffered cardiopulmonary arrest that resulted in massive brain injury and death. The plaintiffs claimed that the decedent lost his airway and then suffered cardiac arrest leading to deprivation of oxygen to the brain (anoxia) and death. The home defended itself by saying that the man’s teeth were simply resting on his tongue, he could lift one arm, that all symptoms were properly charted and that the man’s cardiopulmonary arrest was caused by a rare and unforeseen brain stem stroke. Jones. v. Sunrise Mountainview Hospital, Clark County, Nev. Plaintiff experts: Leslie J. Dorfman, MD, neurology, James F. Lineback, MD, pulmonology. Defense experts: Daniel Homer, MD, neurology.

• RC: The key in these types of cases is to check for an unreported or unrecognized change in condition followed by the documentation of the symptoms that were a direct reflection of the significant change.

Orthopedics

• $100,000 verdict. A 71-year-old woman underwent a total hip replacement by an orthopedist. A week later the woman underwent a revision surgery because the hip had dislocated. The plaintiff alleged negligence in the first surgery, claiming that the hip replacement was outside the “safe” zone in terms of the acetabular angle, the angle being 76 degrees. The defendant argued that being outside the safe zone was not negligence as a matter of law and that hip replacements can fail even in the absence of negligence. (Keirsy v. Barnes, Mo.) Plaintiff experts: Edward Schafly, MD, orthopedics, Douglas MacDonald, orthopedics.

• RC: Here a hip replacement dislocates, necessitating a second surgery to correct the displacement. As evidenced in this case, evaluate the acetabular angle at which the initial hip surgery was done. Being outside of the safe zone of 76 degrees can cause subsequent hip displacement. Although hip replacements can fail in the absence of negligence, being outside of the safe zone for angular replacement can be viewed as malpractice by experts. Experts needed in this type of case would be one or two orthopedic surgeons who do hip replacement surgery.

Surgery

• $200,000 hospital settlement; defense verdict for OB-GYN. A 54-year-old woman had been under the care of a cardiologist for congenital heart disease. The congenital defects included coarctation of the aorta, patent ductus arteriosus, atrial fibrillation, pulmonary artery stenosis and pulmonary hypertension. The woman was placed on the blood thinner Coumadin®. When the woman reported heavy vaginal bleeding, her doctor referred her to a gynecologist. The gynecologist diagnosed a large uterine fibroid and recommended surgery to remove it and the whole uterus. The woman was referred back to her original doctor for clearance, and clearance was given after a cardiac catheterization. A total hysterectomy was performed and after surgery the woman began “third-spacing” fluids because her kidneys were not clearing the fluids from her body. The woman required significant amounts of fluids post-operatively due to her congenital heart disease. Much of the circulating fluid was extravasating to other parts of her body. The woman died of cardiorespiratory failure a week later. The plaintiff claimed that the defendant failed to timely respond to the surplus intake of fluids and did not do a timely abdominal release procedure. The plaintiff claimed that the fluid intake and output records should have been “red flags” to have been acted upon: The intake over output differentials were 3 liters on the day of surgery, 5 liters the next day and 9 liters the next day. The plaintiff also claimed that intensive care doctors should have been used post-operatively. The defense claimed that the fluids were managed correctly and that there was no alternative treatment. (DeLaRosa v. Shuber, Loyola University, Illinois) Plaintiff experts: Robert A. Burger, MD, ob/gyn, Robert J. Buynak, MD, internal medicine.

• RC: Demonstrative evidence illustrating the large discrepencies in the amount of fluid intake versus the amount of fluid output would be helpful for visualizing the differences.

• Defense verdict. A 39-year-old man went to his family doctor with a seven- to ten-day history of a painful testicle and blood in his urine. The doctor suspected cancer and immediately referred the man to a general surgeon. The surgeon operated right away and removed the testicle. Post-op testing revealed that the mass on the testicle was benign, and the plaintiff complained of pain for a year after surgery. Despite hormone replacement therapy the man suffers from low testosterone levels. In court the plaintiff faulted the defendant for not doing a sonogram prior to surgery. The defendant surgeon claimed that the testicle would have been removed anyway since there was no way to rule out cancer. (Horacek v. Doolittle, District Court, Kan.) Plaintiff expert: Richard Erlich, MD, urology. Defendant expert: Kevin McDonald, MD, urology.

• RC: This is a case that seems meritorious on face value, but a thorough review in the screening stage may have identified the lack of alternative treatments available. 

• $1.272 million verdict. A 62-year-old man went to a hospital with abdominal pain. He was diagnosed with a perforated colon, and a temporary colostomy was performed. The man returned three weeks later complaining of severe abdominal pain. A CT scan showed that a surgical sponge had been left inside the patient’s abdomen —the second such sponge-related incident at the hospital within 18 months. The sponge created a fistula on the small intestine. The sponge was surgically removed and the man had to stay in the hospital for 40 days on parenteral nutrition, during which time he developed gall bladder problems. The gall bladder was removed and the colostomy reversed. The jury returned a verdict for the plaintiff after a directed verdict was granted on the issue of negligence. The defendants denied malice and claimed that a nurse made an honest mistake. Eads and Eads v. HCA Health Services, Denton Co., Texas. Plaintiff expert: John Michael Marsden, MD, general surgery.

• RC: Res ipsa loquitur cases appear to be slam dunks, but require the same due diligence in reviewing the medical records for facts as do not-so-obvious cases. Most helpful to the attorney is a review of court records to determine if similar cases have been filed, or the asking of questions about similar previous events in interrogatories, requests for admissions and depositions. 

• Defense verdict. A 72-year-old woman was evaluated by her doctor after having experienced a bile-like sensation in her mouth. The doctor suggested removal of the gall bladder and the woman agreed. Before the surgery the doctor passed an EGD scope into the woman’s throat to check for peptic ulcer disease. The scope was normal and surgery was completed. After surgery the woman was diagnosed with an injury to the hepatic duct, which had been clipped. A second surgery was required and the plaintiff woman claimed that the doctor failed to identify the anatomy and was negligent in clipping the duct. The doctor maintained that there was no identification error, no negligence and that the clipping was just a complication.McGinnis v. Theuer, Shelby Co., Ky. Plaintiff expert: Christopher Daly, MD, surgery. Defense expert: John Wright, MD, surgery.

• RC: Developing a complication from a surgery is not usually malpractice, but failure to timely diagnose the complication and do something about it is where the breach in the standard of care occurs.

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