Posted on March 04, 2016 in Medical Malpractice

A New York jury has awarded $11.6 million to a man who suffered a stroke that left him permanently disabled. The patient presented to the emergency room with dizziness, headaches and an inability to stand. He immediately came under the care of a Physician’s Assistant who ordered a CT scan of the brain. The case presented by the patient’s medical malpractice attorneys was that the CT scan was negligently reported by the radiologist as normal when it in fact showed that a blood vessel supplying blood to the brain was blocked. Because this serious abnormality was not reported to the physicians treating the patient, he was discharged home with the diagnosis of a sinus infection. He was not given blood-thinners which could have prevented a future and more damaging stroke. Weeks later, he suffered a second massive stroke that left him permanently disabled.

The testimony of expert witnesses in the fields of radiology, neurology, rehabilitative medicine and economics was presented to the jury, whose award included past, present and future pain and suffering damages of $8.5 million. The patient lost his successful business as the result of the malpractice.

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 Posted on February 26, 2016 in Medical Malpractice

A Baltimore City, Maryland jury has awarded $2.3 million to a woman who suffered a debilitating leg injury during what should have been a routine surgery. The now-59-year-old was a registered nurse working in the position of case manager for a private nursing home when she presented for a total right knee replacement.

During the procedure – and as is customary – the surgeon placed a tourniquet on her thigh. A tourniquet is a compression device (usually a bandage) used to control blood circulation to an extremity for a limited period of time. Unfortunately in this case, the tourniquet damaged the peroneal, femoral and posterior tibial nerves. The peroneal nerve did not heal and as a result, the woman experiences "foot drop," a condition which prevents her from lifting and flexing her foot. As a further consequence of this complication, her knee rehabilitation efforts after the surgery were compromised. Because of the medical mistake, the patient has been unable to return to work and requires the use of a cane in order to walk.

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 Posted on February 25, 2016 in Federal Crimes & White Collar Crimes

Long a consistent and ardent judicial champion of the constitutional protections afforded citizens under the Fourth and Sixth Amendments, one cannot help but wonder how Justice Scalia would have viewed the showdown between Apple and the Department of Justice.

The DOJ and FBI intentionally selected a headline case to push for legal authority that Congress has thus far declined to give them. Doing so in the underlying matter of the gruesome San Bernadino terrorist attack committed by a husband and wife pair of Islamic extremists plays on public fear, swaying the pole of public opinion towards law enforcement. Relying on the All Writs Act of 1789 – a law passed almost 100 years before the telephone was even invented! – a federal magistrate judge has ordered Apple to create new software, "a master key" if you will, to bypass anti-hacking protections created by Apple.

Curiously, DOJ and prosecutors accuse Apple of slapping the San Bernardino victims in the face but do not mention that Apple has cooperated with DOJ and the FBI in this case, and more importantly, DOJ already has all of the particular iPhone’s cellular service data. This includes the suspect’s texts, incoming and outgoing call numbers, call duration, and GPS location data. DOJ and the FBI obtained it directly and lawfully from the suspect’s cellular service provider or "telecom"-because federal law, the Communications Assistance for Law Enforcement Act, 47 U.S. Code § 1001 et seq. (CALEA), requires telecoms to assist law enforcement in obtaining such call related data. This type of data is not only on the iPhone; the cellular service provider in the course of its business retains and stores this data. Pursuant to CALEA, the cellular service provider in this case has provided the data to DOJ.

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 Posted on February 19, 2016 in Medical Malpractice

A Massachusetts jury awarded just under $30 million this month to a now-eleven-year-old girl who suffered a devastating brain injury in utero. In September of 2004, the girl’s mother presented to the hospital while 28 weeks pregnant complaining of decreased fetal movement. She was admitted for monitoring at 11:00 p.m. on September 5th and, until 5:30 p.m. on September 6th, everything was fine.

Soon after, however, the baby’s heart rate dropped dramatically. The on-call attending physician – who was at home at the time – was called but decided not to come to the hospital. The child’s attorneys argued that this was an emergency and that the child needed to be delivered by emergency cesarean section immediately. Unfortunately, that did not happen in a timely manner. At approximately 9:20 p.m., the baby’s heart rate dropped so low that her brain was deprived of sufficient oxygen for at least eight minutes. The lawyers presented evidence that when the baby finally was delivered by cesarean section, she essentially was not alive and had to be resuscitated.

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 Posted on February 08, 2016 in Business Counseling, Litigation & Transactions

The Court of Special Appeals of Maryland issued an opinion this week that serves as a reminder that a party’s simple failure to preserve evidence can sometimes snatch defeat from the jaws of victory. The case (and link) is Cumberland Insurance Group v. Delmarva Power.

The short version of the case: A home sustained major damage from fire. The homeowner’s insurance company [Cumberland] paid the claim. Most serious fires are investigated for origin and causation of the fire. The insurance company’s investigation in this case led it to conclude that the fire was caused by faulty wiring in the house’s electric meter box. The Insurance Company preserved the meter box; but demolished the property before the Power Company [Delmarva] had opportunity to have its own expert examine the scene and test the Insurance Company’s theory of origin and cause. The Insurance Company made a subrogation claim for damages against the Power Company. The trial court dismissed the suit on the basis that the Insurance Company had made no effort to preserve the evidence that the Power Company would need to evaluate to defend the claim.

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 Posted on February 05, 2016 in Medical Malpractice

A Philadelphia jury recently awarded $4.2 million to a woman whose leg was caused to be amputated because of an infection that she developed after undergoing a double-knee replacement.

The patient, who was a diabetic, presented in 2009 with bilateral knee pain and was diagnosed with degenerative arthritis in both knees, a diagnosis which was subsequently confirmed by x-ray. Knee replacement surgery was scheduled for December of 2010. After the surgery, the patient was transferred to a rehabilitation facility where she began to develop drainage and a large blister in the area of the incision on her right leg but was discharged soon thereafter. The infection, later determined to be Methicillin-resistant Staphylococcus Aureus (MRSA) was allowed to progress and in January of 2011, open wounds on her right leg and left heel were discovered. She underwent additional surgeries to have ulcers drained, and to have a skin graft on her right knee and a flap placed on her left leg.

By July of 2011, the patient had undergone three additional surgeries including one to have the hardware from her knee replacements removed. When doctors determined that her left leg had insufficient blood flow to heal properly, the leg was amputated below the knee. In her medical malpractice lawsuit, the patient alleged that her surgeon failed to advise her of the risks associated with bilateral knee replacement surgery in people with a history of diabetes and also failed to order that she undergo vascular evaluation to determine whether she was suffering from arterial or venous insufficiency. It also was alleged that despite the signs and symptoms of an infection that she was exhibiting, her physician negligently discharged her.

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 Posted on January 28, 2016 in Medical Malpractice

A Charleston, SC jury this week ordered a physician and his employer, a radiology company, to pay $6.9 million dollars to a woman and her husband for the loss of chance of survival after a significant delay in diagnosing breast cancer. The now-47 year old woman, employed as a nurse, was 39 when she went for a mammogram. The screening showed new calcifications that weren’t present on a mammogram performed five years prior.

Nevertheless, her doctor interpreted the study as benign and ordered no additional studies, diagnostic testing or follow-up appointments. Two years later, the woman was diagnosed with Stage III Invasive Duct Carcinoma. By 2013, the cancer had metastasized (spread) to her bones, including her sternum, spine and hip. The diagnosis was that the disease had become terminal, meaning that there was no hope for a cure.

The attorneys presented testimony of expert witnesses who stated that had additional testing been conducted, her cancer would have been diagnosed sooner and her chances of survival would have been between 85 and 100 percent. Notably, the American Cancer Society recommends that women begin yearly mammograms at age 45. The woman’s attorneys used this fact to show how proactive she was when it came to her health. The verdict included $6.2 million to the woman and $700,000 to her husband for loss of consortium.

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 Posted on January 21, 2016 in Medical Malpractice

This month, a Carroll County jury awarded $570,000 to the estate and surviving family members of a woman whose internal bleeding went undiagnosed, resulting in her untimely death.

The woman presented to the emergency room with a chief complaint of swelling in her left leg and was diagnosed with acute deep vein thrombosis and pulmonary embolism, was admitted and given blood thinners. She remained in the hospital for five days before being discharged with prescriptions for two blood thinners. One of the medications required regular monitoring with a test known as INR to ensure the correct dosage. A low INR is an indicator for increasing the dosage and vice versa.

Days after her release from the hospital, her INR score was below the recommended low range and so her physicians recommended increasing the dosage. Thereafter, she woke up with severe pain in her hip and pelvis which the patient’s lawyers argued were tell-tale signs of a hematoma. She returned to the emergency room by ambulance where she was given painkillers and evaluated by a physician’s assistant. At that point, she was unable to walk and complained of spasms in her thigh. No testing or scans were ordered despite the fact that her pain was not responding to narcotic pain medication. Instead, she was transferred to a nursing home facility.

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 Posted on January 15, 2016 in Medical Malpractice

Understandably, one of the questions that we get asked most often when we first meet with new clients is "what is my case worth?" The law divides personal injury awards into two categories: economic damages and non-economic damages. While the facts of each particular case dictate which types of damages can be recovered, the following is a broad discussion of some of the types of damages available.

Economic damages are those which are easily capable of being quantified. In short, they are actual, monetary losses that a plaintiff has suffered as the result of a medical mistake (or other personal injury). The most obvious example of economic damages is lost wages. When an injury renders a person unable to work when they were able to work before, they generally can make a lost wage claim. Such a claim analyzes what their average earnings were, determines what their work-life expectancy would have been (i.e., how many more years they would have worked had they not been killed or injured), and then determines what their average earnings would have been over that period of time (taking into consideration factors such as wage increases and inflation). Importantly, a plaintiff may only make a claim for the present value of future lost wages. For example, if it is determined that a person would have earned an additional $1 million over a period of years if they had been able to keep working, the defense does not need to pay them $1 million today to settle that claim. Rather, the defense need only pay an amount which, when invested at reasonable rates of return currently available in the market, will yield a total recovery in the future of approximately $1 million. Usually, plaintiffs’ lawyers employ an expert economist to make this determination.

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 Posted on January 07, 2016 in Medical Malpractice

A jury in Washington State has awarded more than $1.5 million dollars to a carpenter and his wife after a physician failed to timely diagnose the 56 year-old man’s compartment syndrome. Compartment syndrome is a condition in which swelling compresses muscles, nerves and blood vessels within an area of the body, restricting the flow of oxygen which in turn destroys nerves and muscles. It was the plaintiffs’ position that compartment syndrome must be addressed within six hours of injury to optimize the outcome of the patient.

In the case, the patient fell sixteen feet from scaffolding onto concrete at his job and was airlifted to a local hospital for treatment. At 7:45 p.m., his wife urged hospital staff to summon a physician to examine her husband but it was not until 2:24 a.m. the following morning that a first-year orthopedic resident examined him. At that time, he merely was given morphine which masked the pain. The resident again examined him at 6 a.m. but again failed to diagnose the process in the man’s left hand. It wasn’t until a 7 a.m. examination by a surgeon – more than twelve hours after the initial injury – that it was determined that the man’s hand was completely numb and that he was suffering from significant compartment syndrome.

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