Accident and Injury Lawyer Blog

Pennsylvania's highest court last week in Fitzpatrick v. Natter that circumstantial evidence provided by a plaintiff's spouse in a medical malpractice lawsuit is sufficient to get past summary judgment in an informed consent malpractice claim. The court found that a Pennsylvania Superior Courty had erred in concluding that Pennsylvania's informed consent law required the Plaintiff to testify herself about information that was not provided by her doctor.

This is hardly "knock me over with a feather" news for nursing home lawyers. Centers for Medicare and Medicaid Services - a federal agency - gave slmost a quarter of our nursing homes the lowest possible rating, under a new ranking system released yesterday. The new five-star system is determined by factors such as staffing and the results of state inspections. The purpose is to simplify for consumers the arduous process of choosing an appropriate nursing homes.

The study also tries to rank nursing homes by state: States with the highest percentage of nursing homes with a one-star ranking were: Louisiana, Georgia, Virginia, and Tennessee. States with the highest percentage of homes with five stars were: Delaware, Alaska, New Hampshire, and Hawaii.

The Medicare website has a pretty neat way of evaluating the different nursing homes. Click here to see how you or your loved one's nursing home fares.

The Maryland Medical Malpractice Lawyer Blog has a post on how health courts are working out in New Hampshire.

An Oahu Circuit Court awarded a 45-year-old rancher $6 million this week in a medical malpractice lawsuit against a Wahiawa physician.

Plaintiff went to see his doctor when testing revealed signs of kidney disease. For two years, the defendant doctor treated the Plaintiff for high blood pressure, ignoring test results indicating kidney disease, according to Plaintiff's medical malpractice lawsuit. By the time the Plaintiff was referred to a specialist, his kidneys were already dead. Plaintiff's expert testified to a reasonable degree of medical certainty that had the Plaintiff been referred to a kidney specialist at the appropriate time, the damages likely would have been different.

It is good for medical malpractice lawyers to keep track of successful verdicts because it underscores what fact patterns can make successful medical malpractice lawsuits.

The family of a woman who died in a 2007 balloon accident at the Albuquerque International Balloon Fiesta settled their wrongful death lawsuit for $1.4 million. The victim died in an accident where she fell 70 feet after the balloon she was riding in became entangled in power lines. The balloon festival, the pilot of the balloon and two companies, Star Trail Inc. and Rainbow Ryders were named as defendants in the case.

You can read an article on this Albuquerque wrongful death lawsuit settlement here.

An Illinois appellate court has upheld about $9 million award in the wrongful death a 12 year-old boy who died during a 1999 surgical procedure. The boy died after receiving an antibiotic that triggered an allergic reaction and breathing problems. Jurors two years ago found that the doctor who ordered the antibiotic and the attending anesthesiologist were negligent in the death.

A number of popular asthma medications may have caused more than 14,000 deaths since 1994, an FDA official told an FDA advisory board. Dr. David Graham said that the drugs Foradil, Advair, Symbicort, and Serevent provided little benefit for asthma sufferers when weighed against other available asthma treatments and potential risks. Another FDA doctor disagreed, telling the panel that Dr. Graham’s concerns were unfounded.

I have not looked at the efficacy or the risks of these drugs. But Dr. Graham has a history of being right on these things. I think he is also considered a guy with no particular ax to grind against either consumers or drug companies, which gives him credibility.

A Broward County jury awarded more than $8 million to the wife and three daughters of a North Miami Beach police officer in a wrongful death lawsuit stemming from a 2004 car accident. Jurors found that the family of the other driver and the Florida Department of Transportation were 70 percent negligent in the crash. The decedent Officer Orestes Lorenzo was found to be 30 percent responsible for the accident that caused his death. Accordingly, the jury reduced their award under Florida comparative negligence law from $11.5 million.

The Broward County jury hearing the case took their job seriously: the verdict was rendered at midnight on Saturday.

Medical malpractice lawyers for a Dartmouth-Hitchcock Clinic emergency-room surgeon who was ordered by Merrimack County Superior Court jurors to pay $1.95 million in a medical malpractice case say they will appeal the jury's decision.

The Plaintiff has been blind since the emergency surgery to repaired his broken leg after a car crash on Interstate 89 in 2003. Plaintiff’s medical malpractice attorney argued at trial that the Plaintiff should have been given blood to stabilize his condition. Because of the blood loss, the nerves in Plaintiff’s brain controlling sight were oxygen-deprived and died, resulting in his blindness.

You can read more about this story here.

If you have been injured by medical malpractice or in an auto accident in New Hampshire, call 1-800-553-8082 or click here for a free consultation.

In a 2-1 decision, the 1st District Court of Appeal denied a medical malpractice lawyer’s request in a Jacksonville malpractice case to exhume the decedent, a Jacksonville philanthropist, who was buried four years ago. Central to the Florida court’s opinion is that plastic surgeon defendant has conceded medical malpractice caused the victim’s death.

Given the stipulation that medical malpractice caused the patient's death, I think this is a good decision. I think we should be relucant to exhume bodies unless it is absolutely necessary.

Virginia Lawyers Weekly reports in a $5 million settlement in a motorcycle accident case involving car that crossed the double yellow lines and struck a motorcycle head-on, causing catastrophic injuries, including an above-the-knee amputation. The injured motorcycle victim received $4.5 million; his wife received an additional $500,000.

The motorcycle accident victim required $116,265.14 in medical bills and is expected to incur over $700,000 in future medical bills.

A report released last week by the Manhattan Institute -- "Greater Justice, Lower Cost: How a 'Loser Pays' Rule Would Improve the American Legal System" -- says making personal injury lawsuit losers pay the winner's legal expenses would improve the fairness of our legal system.

"The integrity of our legal system is under assault. Establishing loser-pays rules and other tort reforms can help restore citizens' faith in the bedrock of society -- justice, fairness and the rule of law," former New York Mayor Rudy Giuliani write in the preface to the report. (With the election over, Giuliani is apparently capable of complete sentences that do not contain 9/11. I am a little surprised.)

I have not given the issue any thought. I think the problem is that it presents an intimidating bar for Plaintiff's who have been the victim of the neglignece of someone else in a case that is not clear cut. Do we want to discourage those suits?

The Chicago Times reports on a $9.8 medical malpractice settment on behalf of the family of a 27-year-old mother of nine who died in Stroger Hospital three years ago after bleeding during a pregnancy. According to the medical malpractice lawsuit filed by the family's lawyer, doctors at the hospital failed to give Dickerson blood-clotting products in a timely fashion after she began bleeding and collapsed in August 2005 while 31 weeks' pregnant. Thankfully, her baby survived.

The Los Angeles Times writes this morning about a tragic case in Los Angeles at Martin Luther King Jr.-Harbor Medical Center where an official Los Angeles County assessment has acknowledged for the first time that a woman who died shortly after writhing in pain for nearly an hour on the hospital's waiting room floor would not have died if she had received proper medical care.

The vast majority of medical malpractice cases in Los Angeles occur when doctors who are largely good doctors and good people had good intentions but medical mistakes were made. This is something very different. The only reason this woman's family has a potential wrongful death medical malpractice case is that a security camera videotaped a janitor mopped around the victim while a triage nurse dismissed her complaints.

Sad but true: video cameras and phones are helping make more and more medical malpractice and nursing home claims.

A federal jury in Kansas jury awarded $23.5 million to a man who was severely injured in a truck accident in New Mexico on Route 54 near Tucumcari with a truck driver who tested positive for methamphetamine. Jurors found that the driver for Swift Transportation was 65% responsible for the accident that left Plaintiff with major spinal cord injuries. U.S. District Judge Monti Belot subsequently reduced the actual award consistent with New Mexico comparative negligence law to nearly $15.3 million.

This was a very serious injury case - the defendant has $5 million in past and future medical bills. A big as this case was, it is not the biggest verdict the defendant Swift Transportation has taken in the even the last year. Last December, an Arizona jury awarded $36.5 million to the family of a man killed in a collision with another one of its trucks.

There is a story on the verdict in the Wichita Eagle.

The Maryland Medical Malpractice Attorney Blog has a post on a New York Times about how arrogant doctors are causing medical malpractice. While this is certainly true, the problem is that it is hard to create systems that stop mean people. It would be a better world if we could. But arrogance and abusive people cause medical malpractice, legal malpractice, farmer malpractice, salesman malpractice and on and on.

The Iowa Supreme Court reversed Scott County District Court Judge David H. Sivright, Jr.'s summary judgment ruling in a failure to diagnose breast cancer case, rejecting malpractice defense lawyer claims that Plaintiff should have known of her injury, for purposes of the statute of limitations, just because a doctor made her aware that her breast was not normal.

Although she knew something may be amiss, the Plaintiff - according to the facts alleged in her medical malpractice lawsuit - was assured that she did not have to worry about the lump. According to the lawsuit, the Plaintiff, Ms. Rock, noticed a lump in her left breast in May 2002 and called her doctor to have it examined. She was referred to the Center for Breast Health for a bilateral mammogram. During a follow-up appointment, Ms. Rock said Dr. Warhank told her the mammogram was normal and “not to worry about the lump.”

The Iowa Supreme Court held that the plaintiff could not have known and would not have known of her cancer or that her breast cancer was misdiagnosed until she was actually diagnosed with cancer.

Congratulations to Plaintiff's medical malpractice lawyers Robert Gallagher and David Millage in Davenport, Iowa, who stayed with this case through adverse rulings both at trial and before the Iowa Court of Appeals.

You can find the Iowa Supreme Court's opinion here.

In Christenson v. Mentor Corp, the plaintiff filed a lawsuit in the seventeenth Judicial Circuit, in Broward County, Florida. The core of the action is a strict liability for injuries the Plaintiff suffered from the surgical implant of a device called ObTape, a prescription-only medical device sold by defendant Mentor Corporation. ObTape is a synthetic suburethral sling that was designed to help woman with stress urinary incontinence ("SUI"). Approximately 35,000 women in the United States used the Mentor ObTape between 2003 and 2006 for stress urinary incontinence.

The essence of the ObTape product liability case is that Mentor ObTape did not have a mesh design, which would have allowed the OBTape sling to breathe and get nutrients to the body’s tissue. Accordingly, the ObTape sling failed to allow the tissue where the sling is attached to heal, unlike other vaginal slings on the market. These ObTape problems became clear in a study in the fall of 2006 in the Journal of Urology which found that of the 67 women who had been implanted with the Mentor ObTape Vaginal Sling, more than 13% developed vaginal extrusions. Others patients had chronic vaginal discharge, and one patient developed an abscess that led to complications. It was telling that in the control group of 56 women who used another type of vaginal sling, none experienced the complications seen with the Mentor ObTape Vaginal Sling.

In Christenson v. Mentor Corp, the Plaintiff’s ObTape lawyer also brought a claim against the Cleveland Clinic (its West Palm Beach facility) alleging that it is in the chain for Plaintiff’s strict liability claim. Mentor sought to remove, relying on Porter v. Rosenberg, 650 So.2d 79 (Fla. Dist. Ct. App. 1995) – another case involving Mentor - for the proposition that strict product liability does not apply to health care providers when (1) the medical services provided could not have been rendered without utilizing the product at issue, and (2) the “predominant purpose of the transaction” was the provision of medical services.

The U.S. District Court Judge for Southern Florida William J. Zloch ruled there is no evidence that the Cleveland Clinic is the hospital where Plaintiff's surgery took place and that the medical services could not have been rendered without utilizing the ObTape. Accordingly, although the Mentor is correct on the law, it assumes facts not in evidence because there is “no evidence offered that the Plaintiff's surgery was performed at the Cleveland Clinic and that it did not sell the ObTape directly to Plaintiff, but rather used it as part of the procedure performed there.”

This outcome is a victory for the Plaintiff; her ObTape lawyers obviously believe that she is best served in Florida state court. Accordingly, this is a good outcome but not one that should be expected to be frequently replicated in most products liability cases, because most products cases will not have facts that get plaintiffs past the test for whether a health care provider is in the chain of distribution for purpose of a products liability lawsuit.

If you or someone you care about has been injured by this sling and would like to learn more about the Mentor ObTape Sling lawsuits that are pending around the country, call 800-553-8082 or click here for a free confidential case evaluation by a Mentor ObTape Sling lawyer.