Articles Posted in Medical Malpractice

In a split decision, the Mississippi Supreme Court has affirmed the dismissal of Ferguson v. University of Mississippi Medical Center, a wrongful death by medical malpractice lawsuit that was filed against medical providers who allegedly caused the death of the plaintiff’s brother shortly after he was taken by ambulance to a hospital for treatment in September 2008.  In this most recent ruling, which the court ruled 6-2 to affirm the dismissal of the case, the sole remaining plaintiff and brother of the decedent was denied recovery for giving false testimony in a deposition that was taken before he was added as a plaintiff to the case.  Because of this ruling, nobody will be able to recover any damages based on the alleged negligence of the defendants.

Before His Death, the Man Waited for Hours without Receiving Treatment

The case was initially filed after the death of the plaintiff’s brother, who experienced a medical emergency in September 2008 and was taken by ambulance to the defendant hospital, unable to feel his legs.  According to the ruling, the decedent waited for hours at the defendant hospital but received no treatment despite his serious condition.  The man was eventually taken to a different hospital, where he immediately received treatment, but he died two days later of kidney failure, which could have allegedly been prevented had the man had received timely treatment at the first hospital.

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Earlier this month, the Supreme Court of Mississippi dismissed a case brought by the husband of a woman who died while in the care of the defendant because the plaintiff re-filed the case after the applicable statute of limitations had expired. In the case, Thornhill v. Ingram, the plaintiff alleged that the defendant’s failure to diagnose and treat his wife led to her early death. Accordingly, he filed suit against several of the treating medical professionals, as well as the facility where his wife was cared for.

However, although the case had been filed shortly after the passing of his wife, the plaintiff did not make appreciable efforts to bring the case to trial. Eight years later, the defendant asked the court to dismiss the case for lack of prosecution.

After considering both sides, the trial court agreed with the defendant and dismissed the case without prejudice. This meant that the plaintiff would be able to re-file the case if and when he chose to do so.

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In a somewhat surprising decision by the Indiana Supreme Court last month, the Court reversed two lower Courts’ rulings that a Plaintiff’s medical malpractice suit was not filed within the statute of limitations. In the case of Moryl v. Ransone, the Indiana Supreme Court accepted the Plaintiff’s argument that a medical malpractice suit shall be considered filed when the complainant delivers the complaint to a commercial courier service (i.e. UPS or FedEx), and not when the defendant receives the complaint. This appears to be a minor distinction, but in this case it meant everything to the Plaintiff’s case.The Case

On April 20, 2007, the Plaintiff’s husband died while under the care of the Defendant doctors and hospital. The circumstances of the death were suspicious to the Plaintiff, and she pursued a medical malpractice claim against the Defendants. The statute of limitations for an Indiana medical malpractice claim is two years, meaning that a medical malpractice complaint must be filed no more than two years after the alleged malpractice occurred or else it must be dismissed. Here, the Plaintiff mailed the complaint to the Indiana Department of Insurance, using FedEx overnight, on April 19, 2009 – one day before the statute of limitations expired. The Defendant received the complaint on April 21, 2009, or one day after the statute had expired.

The Trial Court’s Decision

When the case was heard by the District Court, the Defendants argued that under Indiana’s Medical Malpractice Act (“the Act”), a complaint is considered filed only when it is sent by US Postal Service Registered or Certified mail. If a complaint is sent any other way, the Act states, it is to be considered filed upon receipt by the Defendant. Because the text of the Malpractice Act is clear that a complaint is only considered filed upon mailing by Certified or Registered mail, and the Defendants received the complaint one day after the statute of limitations expired, the District Court dismissed the complaint under the Act.
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If you hear that a court “dismisses” a complaint, or finds in favor of the plaintiff, it may have been dismissed as a result of a summary judgment motion filed by one of the parties. A summary judgment motion is a motion made by either the plaintiff or the defendant asking the court to decided the case on the evidence submitted and skip the trial. It is appropriate when there are no legal issues for the judge or jury to decide, and the case can be decided on its facts.In a recent case, the Court of Appeals of Indiana affirmed the summary judgment standard that has been used in Indiana for several years. In the case, Rambo v. Justice, the plaintiff, Rambo, was involved in an auto accident and was taken to the hospital and treated by Dr. Justice. Dr. Justice treated Rambo, but failed to take spine x-rays. Rambo then went to physical therapy which ended up making her condition worse. After two weeks, it was discovered that she had spinal fractures as a result of the accident.

The defendant doctor filed a motion for summary judgment. The trial court
granted the motion and Rambo appealed to the court of appeals. On appeal, the court took the opportunity to affirm the standard for summary judgment, and when it is appropriate. Specifically, the court noted that the party seeking summary judgment “bears the burden of making a prima facie showing that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law.”
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Dr. William Hedrick has developed quite a reputation in the Fort Worth community where he practices.Hedrick, a pain doctor, has been repeatedly accused of substandard care, and recently walked out of a hearing regarding his methods mostly unscathed.

In December 2012, the attorney general filed a complaint against Hedrick for his infamous patient malpractice history. The complaint alleged Hedrick, either willfully or negligently, ignored signs of addiction and/or evidence that the controlled pain killing substances were being diverted from their intended patient sources. Seven deceased patients of Hedrick were used as focal example in the complaint. The Indiana Medical Licensing Board ultimately and successfully proved a few charges – failure to properly supervise employees, overuse of a steroid injection, and one count of breach of standard of care – but dismissed Hedrick of three other counts. Hedrick was sentenced to two years probation and mandatory ethics training.
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As Indiana law stands now, medical malpractice awards are limited to $1.25 million. This might and should change as many see the law as outdated, senseless, and unconstitutional.An Indiana jury awarded an Evansville couple $15 million for their medical malpractice suit against St. Mary’s Medical Center and an associated doctor. The Bobbitts, suing on behalf of their daughter, are now preparing to lose most of that award on appeal.

The basis of the malpractice suit alleged that the hospital and Dr. Mureena Turnquest-Wells were professionally negligent when the defendants improperly conducted a fetal blood procedure on the couple’s daughter without adequate staffing and did not provide continuous ultrasound guidance throughout the procedure. As a result, the Bobbitt’s daughter suffered severe brain damage and cerebral palsy in all four limbs. The damages the suit sought was to provide for the couple and their child as she is wheelchair bound, fed via a tube, and requires constant nursing care.
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The surgeon’s hand has been a long-lasting symbol of precision. Now there is a new competitor to the surgical field, pulled straight from science fiction novels. Robotic surgery is the new ground-breaking trend intended and designed to remove all human error. But just like any other technological invention, this innovation is not perfect and major lawsuits have developed as a result of these seemingly error-free machines.The Da Vinci Surgical Robot, made by Intuitive Surgical, was approved for use by the FDA in 2000. The system can be found in several thousand hospitals throughout the world, and in 2012 was responsible for 200,000 surgical procedures. This year, however, more and more problems and lawsuits seem to be mounting against the system, with the FDA even launching their own investigation as a result of several deaths.

Burns are the most often suffered non-fatal injury as a result of robot assisted surgery. Aside from burns, damage as a result of heat to vital organs and arteries is quite common. Other complaints have alleged lacerations, nerve injuries, tears, and sepsis. Any individual who has suffered medical ailments in the aftermath of robotic surgery should contact an experienced Indiana personal injury attorney.

This year, Time magazine reported on the series of strange accidents stemming from robotic surgeries. This report included one incident with the patient being struck in the face by a robotic arm.

Injuries suffered during robotic surgery can ultimately end up being as serious as death. In 2007, an Illinois man had his splenectomy performed by the Da Vinci system. The operating surgeon — or, in this case, the surgeon operating the Da Vinci system — had never performed a procedure using the system on a living patient. During the procedure, the robotic arm punctured the man’s intestines and, as a result, the man died. In 2012, the family of the victim received a $7.5 million award for their wrongful death suit.

The potential for error in these operations runs deep. A Washington wrongful death suit involving a man who had died of heart failure four years after a Da Vinci operation, having suffered complications allegedly from the operation, revealed a dark source of Da Vinci’s problems. During the litigation of the case, the Intuitive Surgical Director of Marketing testified that internal marketing material identified and targeted surgeons who were seen as lacking certain surgical skills and having a history of only performing minimally invasive procedures. The plaintiff’s attorneys further alleged that the sales reps for Intuitive Surgical encouraged hospitals to lower the standards on which doctors may operate the system, and even used operation schedules to identify surgeries which could be done by the system in place of the skilled surgeon.
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A father who murdered his two daughters and wife last year has filed a suit alleging improper mental health treatment in the Indiana County Common Pleas court against the Indiana Regional Medical Center.

Lewis Beatty was convicted of the murder of his two daughters and estranged wife. The three were murdered on June 1, 2012, but only one month earlier Mr. Beatty was expressing homicidal and suicidal thoughts at the Indiana Regional Medical Center.In the month before the grisly murders, Mr. Beatty suffered severe emotional distress after discovering his estranged wife was now with another man. He visited the mental health clinic of the medical center to address his emotional state. While at the facility he expressed his desire to murder his wife and then kill himself to an attending nurse in the emergency room.

Mr. Beatty spent only about 26 minutes with a doctor at the facility. Doctor Tomacruz, the doctor who treated Beatty, wrote a prescription for anxiety medication and sent Mr. Beatty away only 40 minutes after having entered the clinic. Further evidence includes Mr. Beatty’s chart from the facility that identifies his expressed desire to kill both his wife and himself.

Mr. Beatty strangled his and his wife’s two daughters and slit their throats before driving to his wife’s workplace. From her workplace, he stalked her back to her home where he proceeded to strangle her and cut her throat as well. After setting fire to her home, he attempted suicide by slitting his wrists. First responders rescued and resuscitated Beatty from the burning East Mahoning Township home.

Mr. Beatty pleaded guilty for the three murders to avoid the death penalty. He is currently serving three consecutive life sentences without parole in Erie County state prison.

The civil suit against the medical center is seeking unspecified punitive damages for their alleged failings in two regards. Firstly, the argument is that the medical center should have warned Mrs. Beatty of the threats made about her by her husband. The second argument is that the center or doctor failed to meet their appropriate standard of care, consequently breaching a duty by not taking the man’s homicidal expressions more seriously.

It is further alleged that the attending physician, Dr. Tomacruz, failed to consider Mr. Beatty’s medical and social history (he had been visiting a psychiatrist for 6 months preceding his visit to the hospital) or the chart drawn up by hospital staff, which reinforced Mr. Beatty’s violent confessions. The suit charges that Beatty would have likely considered further psychiatric consultations if so ordered based on his own voluntary visit to the center, and such a consult could have identified whether he posed a threat.

The medical center and attending physician have denied any wrongdoing, citing a lack of obligation to inform unless specific threats are made by the individual seeking treatment. In this case, according to the defendants, there was no specific threat but just dangerous propensities. Furthermore, the defendant’s preliminary objections identify that, at maximum, the conduct would be classified as ordinary negligence, which does not generally permit an award of punitive damages.
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When one imagines a medical malpractice lawsuit, typically the scenario that comes to mind is clumsy surgery gone wrong. However, the reality of medical malpractice is that, in most cases, it occurs much earlier.Much research on the field of malpractice has come out of Johns Hopkins School of Medicine with hopes to curb the nearly $3.6 billion dollars a year spent on these suits, with misdiagnoses being the most easily preventable type of malpractice. A recent study by Dr. David Newman-Toker found that late or incorrect diagnoses accounted for approximately 35% of all medical malpractice suits.

Some diseases are more prone to misdiagnosis. It is estimated by the Journal of Clinical Oncology that some cancers have a misdiagnosis rate of 44%. A study by Indianapolis-based Eli Lilly and Co. found that nearly 1 in 5 Alzheimer’s patients are wrongfully diagnosed with Alzeimher’s when the condition is not present.

Medical misdiagnosis lawsuits do not always stem from missing a condition or a late discovery. As an example, in the case of Mr. Strout, the misdiagnosis was traumatizing but, ultimately, the worst part of his health concerns. When Strout visited his doctor, he was told he had pancreatic cancer. The diagnosis described it as extremely aggressive and Strout was told he had months to live. However, when the tests returned, the diagnosis was wrong and Strout actually had Hodgkin-lymphoma, which is much more easily treatable. Strout sued and was awarded $200,000 in his medical malpractice suit for his “tremendous emotional distress”.

Studies of ICU units have reported incidences of misdiagnoses at anywhere from 20-40%. Here are some important steps to take to avoid and/or survive a misdiagnosis:

1.) Speak with a doctor – Nurses, physician assistants, and a spectrum of other medical professionals can be liable for medical malpractice. So when something is bothering you, it is best to get a diagnosis from a licensed doctor before dismissing it. A Pennsylvania woman was examined by a physician’s assistant for sinus issues, to which a steroid treatment was suggested. This treatment, without antibiotics, led to a life threatening brain abscess and a $3 million dollar medical malpractice award.

2.) Be prepared – You only have so much time in the examination room, so prepare your questions, tally your symptoms as you experience them, and detail your medical history including medications and previous medical treatments. Your physician is a doctor, not a psychic.

3.) Find a second opinion – Do not feel shy about addressing your health concerns with another medical professional. Not only could you avoid a costly and dangerous misdiagnosis but, more often, it can give you the chance to get more answers and a more detailed understanding of your ailments.

4.) Contact an experienced malpractice attorney. Due to the complicated and expensive nature of medical malpractice litigation, the majority (93%) are settled out of court. Settlement agreements can be detailed and have long-lasting implications, and you will want an attorney to ensure each harm you have or will have suffered is addressed.
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The Statute of Limitations governs each and every civil claim plaintiffs may have. These are statutorily established periods of time from the date the cause of action is created to when the plaintiff must have filed his claim with the court. The periods of time vary with the type of action, and certain “tolls” on the time may apply which extend the period, such as for infants, fraudulent concealment, or undiscovered injuries. But after the time period is over the claim may be dismissed upon motion by the opposing counsel. Although Statute of Limitation issues seem clear, cases like Moryl v. Ransone discussed below stress the importance of consulting with an experienced knowledgeable attorney.A LaPorte area woman was offered no leniency by the Indiana Court of Appeals in the filing of her claim. This woman had a potentially valid medical malpractice claim against LaPorte Hospital in relation to the wrongful death of her husband. Indiana Medical Malpractice claims have a two-year statute of limitations and are governed by the Indiana Medical Malpractice Act, which requires all claims to both be filed first with the Department of Insurance (DOI) then the Indiana Court. As the deadline approached, the woman sent in the complaint on the day before the statutory period expired. Because of the urgency, the woman sent the documents in through FedEx. The papers arrived one day after the deadline.

Traditionally, Indiana, and most jurisdictions, consider the complaint filed on the day it is delivered to a third-party carrier. Indiana Trial Rule 5(F) extends a deadline three days when delivered through a commercial carrier, such as FedEx, to the court. This rule only applies, however, to courts, not to the DOI.

Judge John Baker, writing the opinion for the Court of Appeals, explained that Indiana law only recognizes registered or certified mail through the U.S. Postal Service as valid “third-party carriers” for the purposes of a Medical Malpractice claim filed with the DOI. The court ruled against the woman 3-0.

The unique unfortunate factor in this case is that there is no statute of limitations time listed for the DOI portion of the filing. The prerequisite that the filing be made at the DOI before it may be validly filed with the court leads to an imposed statute of limitations for the DOI filing which then fails to recognize any extension for a commercial carrier.
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