Cases compiled from www.verdictslaska.com; Editorials by Rose Clifford, editor
© The Medical-Legal News 2007
• Defense verdict. A 67-year-old man went to the emergency room with complaints of pain in his back. A CT scan showed an abdominal aortic aneurysm that was leaking. An ER doctor contacted numerous surgeons in an attempt to have someone operate on the patient. The surgeons recommended that the man be transferred to another hospital by helicopter, but the helicopter was unavailable because of bad weather. The man’s condition deteriorated and a local surgeon was called who agreed to do the surgery. The man died five days later of multiple organ failure. The plaintiff claimed that the ER doctor should have made a diagnosis sooner and gotten a surgeon to operate on the decedent immediately. The defendant claimed this type of aneurysm has a high fatality rate and that a more prompt surgery may not have made a difference. (Walburn v. Ashley, et al, Scioto Co., Ohio). Plaintiff experts: Bruce Janiak, MD, Roy Tawes, Jr., MD. Defense experts: Michael Dick, MD, Joann Lohr, MD.
RC: Multi-organ failure should trigger the reviewer to investigate the etiology of the failure and any causal relationships.
• Defense verdict. A child was brought into an urgent care center after swallowing an unknown object. He was not choking. X-rays revealed a round flat object, assumed to be a coin, lodged in the proximal esophagus. The child was sent to an ER for removal of the object. A pediatric gastroenterologist was called who waited until the next day to remove the object. Once the object was removed it was found to be a small lithium disk battery. A tracheoesophageal fistula was soon discovered and surgery was needed to repair it. The plaintiffs claimed that the child’s damaged airway was caused by battery acid and that a battery should have been considered as a possible object in the original X-ray. The defense maintained that the fistula probably was caused by an electric current once the battery was swallowed. (Payeton v. Coffey, et al, Tulsa Co., Okla). Plaintiff experts: Gregory Conners, MD, Leonard Swischuk, MD. Defense experts: Earl Smith III, MD, Mark Fergeson, MD, Robert Skib, MD
RC: Although the plaintiff’s theory of negligence seems reasonable, it is important to consider where the jury may place blame — there will be some blame toward the mother for not watching her son, and may be no blame placed on the doctors or hospital. It was not unreasonable to diagnose the foreign object as a coin.
• Defense verdict. A 35-year-old woman was sent to an OB/GYN for an urgent hysterectomy. The woman claimed that during the surgery her bowel was perforated. The plaintiff had to have follow-up repair surgery. It was done elsewhere and she underwent a total of four procedures. The defense admitted that the bowel was perforated, but disputed whether it was perforated during surgery or after surgery because of the plaintiff’s underlying pathology. The defense also pointed out that bowel perforation is a known risk of the procedure. (LeBlanc v. Salesin, et al, Oakland Co., Mich). Defense expert: William S. Floyd, MD.
RC: Reviewing the risks and complications of any procedure will save the expert or LNC crucial time, and the attorney money, in evaluating the medical merit of a case. Developing complications from a known risk is not malpractice.
• Plaintiff verdict: $2.25 million. A 31-year-old woman had six Norplant contraceptives inserted into her left arm in 1998. The procedure was done by a nurse practitioner. Several hours later the woman developed pain in her arm, and the pain persisted for four days. The plaintiff called and complained of the pain. She was told that the pain was a normal side effect. Three weeks later the woman returned to the health center still complaining of pain. The woman was told to report any trouble with the use of her arm or its range of motion. The woman had pain intermittently for the next two years and her left hand became smaller than her right hand. In 2001 the implants were removed and one of the implants was so deep that it had to be removed by a surgeon. The plaintiff claimed that she suffered from ulnar nerve damage, while the defense claimed that the nerve damage was caused by the removal of the deep implant. (Kneile v. Montefiore Medical Center, et al, Bronx Co., N.Y.).
RC: Where nerve damage is evidenced by muscle atrophy, it is apparent that the damage occurred long before the surgery to remove the causative object.
• Plaintiff settlement: $218,874. A 10-year-old child with a nosebleed was taken to a hospital. He was diagnosed with leukemia and sent to another hospital where he was treated with a drug called 6-MP. The child’s mother claimed that the youngster was not improving, and three weeks into his treatment the hospital staff discovered that the maximum recommended period for use of the drug 6-MP was only four days. The child was transferred to a hospital for emergency treatment, but died that same day. The hospital denied any negligence. (Escobar and Portillo v. UCLA Medical Center, Los Angeles).
RC: Unintentional drug overdose cases usually do not end in plaintiff verdicts unless the overdose leads to serious permanent injuries and is so outrageous that the jury would be convinced of it.
• Plaintiff verdict: $3.3 million. An overweight woman, age 49, had gastric bypass surgery and was discharged. She soon developed severe respiratory complications. She was admitted to a hospital in grave condition. She was in ICU for five weeks before being transferred to PCU. The plaintiff claimed that she developed a mucous plug at the sight of her tracheostomy, and claimed that the nurses failed to respond quickly. She was deprived of oxygen for about ten minutes that resulted in brain damage. The defense alleged that the woman was advised to quit smoking before the bypass operation in order for her lungs to develop strength enough to deal with the stress of surgery, but that she had failed to do so. The plaintiff was found to be 49 percent at fault and her award was reduced accordingly. (Fleming v. Northern Utah Healthcare Corp, et al, Salt Lake County, Utah). Plaintiff experts: Michael Leitman, MD, Nayyer Ali, MD, Laura Burchell-Henson, RN, Defense experts: Neal Shadoff, MD, Vicki Spuhler, RN.
RC: No matter the facts of a case, it is wise to relate them to medical history and how it might affect litigation — always anticipate potential defenses.
• Plaintiff verdict: $552,739. An 82-year-old woman went to a clinic for a follow-up visit. A registered nurse noticed a cut on the woman’s arm and prescribed the antibiotic Keflex. The woman soon developed an anaphylactic reaction and died within minutes. The plaintiffs claimed that the woman’s allergies to penicillin and ACE inhibitors clearly were in the medical file, and that Keflex was known to have the same effects. The defendants argued that there was no evidence that the decedent had taken the Keflex because no one had witnessed her taking the medication, and also contended that the prior allergic reactions were not relevant. (Podurski v. USA, et al, Maryland). Plaintiff expert: Gary B. Witman, MD. Defense expert: Robert L. Connors, Jr., MD.
RC: This is a case where a timeline would clarify issues and help argue against the defense’s claim that the medication was not taken.
• Plaintiff settlement: $825,000. An elderly woman with Alzheimer’s was left at a residential care facility for about two weeks while her daughter was out of town. The daughter was the normal care giver. During a phone call to her mother, the daughter became concerned that something was wrong. When the daughter came to retrieve her mother, she was told by the director that the elderly woman had struck her while she was assisting another patient and that her arm had been bruised as a result of restraints. The daughter was later told by three ex-employees that the director had become angry with the plaintiff for constantly coming into her office, and had grabbed the woman by force. The former employees said they reported the incident to an administrator, but that it had not been reported to any regulatory or law enforcement agencies. The plaintiff was diagnosed with a T-12 fracture and back pain after her stay at the facility. Once police became involved, the director pled no contest to charges of elder abuse.
(Schipull v. anonymous, Los Angeles). Plaintiff experts: Tracy Albee, RN, Kevin Ehrhart, MD, Mark J. Rosenthal, MD. Defense experts: Douglas Keister, MD, Dennis R. Malkasian, MD, Samuel S. Murray, MD, James E. Spar, MD, David Wellisch, MD, Roxanne M. Wilson, RN.
RC: Elder abuse cases are prevalent in our society [See stories, Pages 12, 13]. A high index of suspicion on the part of the reviewer or attorney is necessary to ferret out the facts.
• Defense verdict for orthopedist, confidential settlement with hospital. A 63-year-old female patient underwent a total knee replacement performed by an orthopedist. Three days after the surgery the nurses had trouble finding a pulse and the doctor was notified. He ordered a venogram. An arterial occlusion was diagnosed and immediate surgery was performed. The recovery was complex. The plaintiff patient underwent 22 surgeries and spent 116 days in the hospital. The plaintiff almost lost the leg, but was left with palsy in the leg and a deformity of the ankle and foot. The plaintiff claimed that the nurses should have contacted the doctor more quickly when a pulse was not found, and that the doctor did not perform a vascular check on the legs and failed to order the venogram STAT. The defendant doctor argued that he did find the pulse on his daily rounds, and maintained that the patient had suffered a very rare arterial thrombus. He also insisted that he called in a vascular surgeon as soon as a vascular problem was suspected. The defense maintained that while the outcome for the patient was poor, it was not due to negligence. (Alexander v. Hitt, Jefferson Co., Ky.). Plaintiff experts: Thomas Gutkowski, MD, Martin Eason, MD. Defense experts: Mark Siegel, MD, Frank Burke, MD.
RC: When initially reviewing a case with voluminous medical records it is essential to focus on the heart of the matter — the three-four days leading up to the incident and the immediate time period of treatment.
• $1.5 million gross a verdict followed by confidential settlement. A 3-year-old developed symptoms of viral flu. The child had fever, coughing and vomiting. The child was taken to his pediatrician and was diagnosed with the flu. The child did not improve and the doctor was called after hours. In the after-hours call, a nurse told the parents that the child had the flu and would be fine. The next day the child was brought to the pediatrician again, but no tests were done and no antibiotics were ordered. The child got worse and a few days later was seen again by the pediatrician. On this last visit the child was nonresponsive, lacked an appetite and had blood in his urine. An X-ray revealed fluid surrounding the child’s lungs and he was diagnosed with anemia and a severe bacterial infection. The child was hospitalized and attempts were made to drain the fluid from his lungs. At this time the child was moderately anemic and had low platelets. Antibiotics were started. Blood cultures revealed sepsis. The urine showed significant hemoglobin and protein, and only a few red blood cells. The child died in two days with extreme anemia, acidosis, septic shock and other complications. The plaintiffs alleged that tests were not ordered in a timely manner and that there was a failure of proper diagnosis and treatment of the child. The defendants claimed that the child was stable until the early hours of the day he died, when he experienced a rapid decline. (Calhoun v. Griffin, Mercy Medical Group, et al, St. Louis). Plaintiff experts: William Wittert, MD, Elizabeth Barnett, MD. Defense experts: James Kemp, MD, Jerome Klein, MD.
RC: Crucial to disputing or collaborating the defense’s claim that the child appeared stable would be a detailed timeline from the initial office visit until the time of death. Particularly helpful would be a pediatric expert’s review of the records for subtle yet obvious indicators.
• Undisclosed settlement: A 48-year-old man with a history of high blood pressure was taking the drug Covera. The man’s doctor became concerned about some enlarged veins in the plaintiff’s esophagus — a known complication of high blood pressure that if left untreated could be dangerous. The plaintiff was referred to a gastroenterologist for an evaluation. The doctor, Dr. Nisi, prescribed a beta blocker, Inderal. The prescription was filled at a Walgreen pharmacy, and shortly after the plaintiff began taking the Inderal he suffered a massive stroke. A settlement was reached with Dr. Nisi for an undisclosed amount, but the case proceeded against Walgreen. The plaintiff’s claim was that Walgreen failed to inform the plaintiff or the doctor of dangerous interactions between the two drugs. Walgreen argued that it did not have a duty to warn, and denied that an interaction between the two drugs caused the stroke. A defense verdict was returned. (Foy v. Walgreen, Madison County, Ind.).
RC: Essential to the record review would be medical research on the effects and interactions of the drugs, etiology of the massive stroke, and on the physician’s and pharmacist’s duty to warn.