Cases compiled from www.verdictslaska.com; Editorials by Rose Clifford, editor
© 2007 The Medical-Legal News
• $1 million post-trial settlement: A mother began her prenatal care with the defendant medical group in April 2001. She had a primary physician during her pregnancy. The woman had a history of gestational diabetes in a previous pregnancy and at 21 weeks of gestation she was diagnosed with gestational diabetes in the current pregnancy. As a treatment, a restricted diet was ordered but insulin therapy was never ordered. The mother was admitted to a hospital to have her labor induced because she was overdue — 42 weeks — in November. The fetus was estimated to weigh 8 lbs. The on-call physician for the medical group appeared for the delivery. He had never seen or treated the mother. Shoulder dystocia was encountered during the delivery and as a result the child suffered brachial plexus paralysis of the right arm. He underwent nerve graft surgery. In the lawsuit, the plaintiff claimed that the on-call physician failed to use maneuvers that would have resulted in safe delivery of the infant. The primary physician also was sued because the plaintiff claimed that her gestational diabetes was not properly monitored, allowing the baby to become macrosomic, i.e. the child weighed more than 10 lbs. at birth. The increased size raised the risk of the shoulder dystocia. The defendants denied any wrongdoing. The minor’s portion of the settlement was put into a structured settlement. (Saavedra and Bojorquez v. Johnson, Jennings-Nunez and White Memorial, Los Angeles). Plaintiff experts: Albert J. Phillips, MD, Robert L. Podosin, MD. Defense experts: T. Murphy Goodwin, MD, R. Clark Davis, MD.
• RC: When initially evaluating a shoulder dystocia case it is important to identify whether significant and permanent injuries occurred, and whether they resulted from mismanaged prenatal care of gestational diabetes, or from mismanagement of the delivery. A brachial plexus injury requiring nerve graft surgery is a significant injury. Failure of the physician to use safe delivery maneuvers in the face of impending shoulder dystocia and the physician’s failure to properly manage gestational diabetes by monitoring the fetal weight (macrosomic) are all contributing factors to the injury. Experts required for such a case would be an obstetric gynecologist, a pediatric neurologist and perhaps an orthopedist.
• $29.3 million verdict. A pregnant woman was admitted to a hospital with mild to moderate contractions. She was 29 weeks pregnant. The woman was a diabetic with a history of pre-term delivery. The defendant doctor and the perinatologist on staff ordered magnesium sulfate to stop the contractions. The minor plaintiff was born with Apgar scores of four and four and was limp, blue and had no respiration. The child was intubated and extubated after four days and was discharged at three months with a diagnosis of periventricular leukomalacia. The child has no use of her legs and little use of the right arm. She is wheelchair-bound and cannot attend to her daily needs, though has full cognition, is above average intelligence and is doing well in school. The defendant hospital claimed that the doctor was responsible for the labor and delivery and made all decisions regarding care. The plaintiffs claimed that 1) the doctor should have given antibiotics because infections are a known cause of pre-term labor, 2) the hospital and the doctor improperly gave magnesium sulfate which allowed the labor to progress, 3) the doctor and nurses at the hospital failed to monitor the fetal heart rate which showed problems, and 4) a c-section should have been done. The plaintiffs alleged that cerebral palsy and brain damage occured as a result of not doing a c-section. The hospital was found 35 percent at fault and the doctor 65 percent at fault. (Muniz v. New York Methodist Hospital and Luke, N.Y.).
• RC: Failure to perform a c-section for major variable decelerations, reduced accelerations and reduced variability noted on a fetal heart monitor can result in cerebral palsy and significant brain damage to a baby. When evaluating obstetrical cases it is imperative to have the fetal monitoring strips evaluated by an expert who is able to recognize the significance of the decelerations, accelerations and variability, and correlate such findings to what is happening pathophysiologically. Discharge diagnoses may not always show a relationship to the underlying etiology. It is essential to evaluate the case further for all issues and for direct causation.
• Defense verdict. A woman had been diagnosed with acute myolongenous leukemia by several doctors. Radiation therapy was started, and on day two of this treatment the woman allegedly began to show signs of an infection, including fever and urine that was positive for MRSA, a staph infection. The defendant doctor continued the radiation therapy for five more days. A stem cell transplant from the woman’s donor sister was performed but the woman died ten days later. The woman’s plaintiff claimed that the radiation therapy should have been postponed when the infection was detected. The plaintiff also argued that the radiation further weakened the woman’s immune system contributing to her death, and claimed that the transplant should have been cancelled due to the infection. The defense denied that an infection was ever present and argued that the mortality rate for the transplant procedure was only 25 percent. (Boyer v. Molina, Ohio) Plaintiff expert: Arthur J. Weiss, MD. Defense experts: Mary J. Laughlin, MD, Martin S. Tallman, MD.
• RC: A failure to postpone the stem cell transplant and stop radiation therapy when infection developed led to the death of this woman. Oncology cases are tough unless the treatment or lack of treatment is so outrageous as to anger the jury. Initial evaluation of this case may prove to be more beneficial if the consultant takes into consideration the issue of sympathy versus anger. A built-in defense is the doctor’s urgency to treat in hope of saving the plaintiff’s life. Experts should include an oncologist and perhaps a radiation oncologist.
• $3.45 million verdict. A 13-year-old boy suffered from bilateral and degenerative arthritis in his hips. His orthopedist performed two surgeries on his left hip and performed a third surgery on the right hip. The plaintiff boy had numerous complications and repair surgeries. In a lawsuit it was claimed that the doctor used the wrong kind of pin in the surgery and that the failure to use a cannulated screw with a blunt end caused the screw to penetrate the femoral (leg bone) head. It was alleged that this caused chrondrylosis and permanent complications, as the plaintiff now uses a cane and will need future surgeries. It was also alleged that the doctor did not inform the patient of other alternatives. The defense argued that the surgery was properly performed, that surgical screws do not migrate and that the patient was properly informed about the surgery. There were two trials: In the first trial the plaintiff won on the issue of informed consent, but no damages were awarded. A second trial was ordered on the issue of the right hip only, and only as to damages. (Martin v. Moscowitz, N.Y.).
• RC: Informed consent cases are usually difficult to prove and win with a jury verdict unless the lack of informed consent is coupled with medical malpractice, such as seen here. When initially evaluating a case with this fact pattern it is necessary to evaluate the surgical technique, the appropriateness of the kind of pins and screws used, the subsequent complications, the etiology of the diagnosis (chrondrylosis) and whether or not there are permanent damages.
• Defense verdict: A woman, age 46, underwent treatments at a clinic for her varicose veins in both legs (sclerotherapy). Successful therapy was done on the right leg and she underwent a series of treatments on the left leg performed by the defendant doctor. After a treatment injection in the left leg, the plaintiff suffered inflammation and chemical burns on the back of the leg. These complications caused two ulcers and scarring behind the knee. The woman also suffered a compression injury to her sural (in the calf) nerve and had partial nerve damage. The nerve damage resulted in permanent occasional numbness and tingling pain in the lower leg and foot. The plaintiff’s argument was that a toxic sclerosing agent was injected that caused the pain and tingling, and then an injection of a neutralizing agent was given to mitigate the effects of the first drug after her complaints. The plaintiff further claimed that the injections were not necessary anyway because all ultrasounds had shown the veins had already been closed and properly treated. The woman did not manage the burn wounds at home after her release, which caused them to become infected and resulted in hospitalization and the use of IV antibiotics. The defense asserted that the plaintiff only had one injection on the day in question and that there were no immediate problems. The defense also argued that skin burns and nerve damage are known risks and that such risks were acknowledged by the plaintiff in a waiver that she had signed. The defendant maintained that there had been a malformation in the woman’s venous system — an undetectable malformation — that had expelled the chemical from her veins, causing the burns. (Smarz v. Vein Clinics of America and Rosenfeld, Ill.). Plaintiff expert: Walter Kwass, MD. Defense expert: Salvador Yunez, MD.
• RC: These kinds of cases are difficult to initially screen for merit. Permanent damages, although significant for the patient, are not significant to a jury. Damages consisting of skin burns and nerve damage (occasional numbness, tingling and pain) are known risks to the procedure and accepted by the plaintiff in the waiver. Finding an expert who would hold an opinion of substandard care would be difficult. A defense verdict is not surprising.
• Defense verdict. A 25-year-old woman with a history of seizures had gall bladder surgery. After surgery she was found unresponsive in her room and without a pulse. She was resuscitated, but remained in a coma and suffered brain damage. Life support was withdrawn after a few days and she died. The plaintiff claimed that the morphine and Fentanyl® given after surgery had depressed her airway under stress and that closer post-op monitoring was warranted. The defendants argued that the cause of death was unclear, that the decedent had been cleared for surgery by her neurologist and that the decedent had been awake and alert just ten minutes before she was found unresponsive. (Yuscinsky v. Allegheny General Hospital, Casario & Fowler, Penn.) Plaintiff experts: Sophia Gardner, RN, I. Michael Leitman, MD, Alan D. Weinstock, MD. Defense experts: LuAnn Prephan, RN, Robert K. Sterling, MD, Richard W. Stypula, MD, Lawrence R. Wechsler, MD.
• RC: The circumstances of the case (a young 25-year-old fairly healthy person undergoing elective surgery results in death) certainly warrants a detailed review of the medical facts with specific attention to the administration and effects of the perioperative, operative and post-operative pain medications. This is a case where an autopsy would have been helpful in the initial review.
• Defense verdict. A 59-year-old woman went to a hospital for gall bladder removal. The surgery was uneventful, although the defendant doctor noted a diaphragmatic hernia. The hernia was reduced, and the day after discharge the woman was experiencing chills, nausea and vomiting. She also was unable to have a bowel movement, so was readmitted to the hospital and was treated with a nasogastric tube. Her abdomen was distended with a firm mass to the right of the surgical incision. An X-ray showed loops of bowel filled with air, and fluid levels indicative of an obstruction. The woman was returned to surgery where a bowel obstruction, along with an incarcerated hernia, was found. A bowel resection was performed, but the woman did not improve and soon caught pneumonia. She had to be treated with antibiotics and was described as confused and sedated, even though she was not on sedatives. The woman showed some improvement but took a turn for the worse two days later with a high fever and a high white blood cell count, indicating an infection. Exploratory surgery was performed to look for leakage of intestinal fluids, but no leakage was found. The woman worsened, went into respiratory distress, was intubated and had to have a tracheotomy three days later. Four days after the tracheotomy was performed the woman dislodged the tube, depriving her brain of oxygen. The woman died about a week later. The plaintiff claimed the defendants failed to diagnose and treat a bile leak, jaundice and fungal sepsis. The defense denied that there was any leak and claimed that the death was due to the accidental removal of the trach tube. (Mayhall v. Iacobelli, et. al, Ala.) Plaintiff expert: Kenneth Barnett, MD. Defense experts: Lucian Newman, MD, Robert Yoder, MD.
• RC: The facts of this case are complicated for a jury to understand. Without an autopsy, no definitive cause of death may be found to support the plaintiff’s claim.
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