January 2011 Archives

A couple in Illinois has filed a medical malpractice lawsuit after their child was left with permanent disabilities and cerebral palsy after suffering an injury to the brain at birth.

The couple filed the lawsuit against their doctor and the hospital, claiming that a botched delivery caused their child to suffer a severe brain injury during birth. The suit was filed in December.

According to the lawsuit, the couple's child suffered a hypoxic brain injury. The couple claims that the doctor ruptured membranes in the child's head and that appropriate resuscitation procedures were not used. The couple also says that the doctor failed to deliver a Caesarean section in a timely manner.

The lawsuits further claims that deprivation of oxygen to the child's brain led the child to develop cerebral palsy. The suit says that the child's cerebral palsy has lessened her ability to enjoy life, causing learning disabilities, disfigurement, and pain and suffering.

The couple also says that because of the injury, the child will not have the ability to acquire a sufficient education, which will severely hinder here ability to earn money. The child will also require constant medical care and will face mounting medical fees and charges, the suit says.

The couple says that the doctor's negligent care caused their child's injuries, and they are seeking compensation from doctors and the hospital at which their child was delivered.

Cerebral palsy describes a group of chronic conditions affecting body movement and muscle coordination. Children with cerebral palsy are born with in most cases; however, many children may develop cerebral palsy after birth due to severe head trauma, lead poisoning, meningitis, severe jaundice or encephalitis.

Medical malpractice is also often a cause of cerebral palsy. Cerebral palsy could be linked to negligence or wrongdoing on the part of a doctor, nurse or other healthcare professional during child delivery or the treatment of a mother during pregnancy.

If you believe that you have been a victim of medical malpractice, contact the Law Offices of Dr. Bruce G. Fagel. Click here to visit our website or feel free to contact us by phone at (800) 541-9376 for a free consultation.

A West Virginia couple is challenging a state law that places caps on medical malpractice awards. A jury verdict awarded the couple $1.5 million in damages in the medical malpractice case, but because of the law the award was reduced to only one-third of the original amount.

The medical malpractice lawsuit was filed after the husband was admitted into a West Virginia hospital. There he was given a combination of medications which appear to have caused him to develop rhabdomyolysis, which is a breakdown of muscle fibers caused by injury to muscle tissue.

After the couple sued, the case went to a trial before jury. The jury ruled in the couple's favor, awarding $1.5 million to the couple for pain and suffering as well as a $129,000 award to cover lost wages and related medical expenses.

With West Virginia's cap on awards in medical malpractice lawsuits, most awards cannot exceed $250,000, and awards in severe cases are capped at $500,000. In this suit, the husband was awarded a total of $1 million for pain and suffering, while his wife was awarded $500,000. Because of that state's cap, the award was reduced to $500,000 to be shared among the couple.

The law capping medical malpractice awards, established in 1986, originally set a cap of $1 million, but it was later reduced. The cap does not consider multiple plaintiffs, which means that no matter how many plaintiffs are named in the case, the group of plaintiffs must split the award, which is $250,000 in most cases or $500,000 in those cases that are considered severe.

The couple in this case, which has been appealed to West Virginia's Supreme Court, argues that the state's cap on medical malpractice awards goes against their right to a trial by jury, which in turn could stop the jury from making the final decision in a case.

Representatives for physicians and the insurance industry support medical malpractice award caps claiming that such caps keep the costs of malpractice insurance low and prevent physicians from moving to another state.

Similar caps in Georgia and Illinois were recently declared unconstitutional, so it will be very interesting to see what the court says about the constitutionality of medical malpractice award caps in West Virginia.

If you, or someone you know, may have been a victim of medical malpractice, contact the Law Offices of Dr. Bruce G. Fagel at (800) 541-9376 or click here to visit our website.

A nursing home in Richmond, Va., along with several staff members and corporate branches, are a part of a lawsuit that claims a patient suffered nursing home negligence.

The lawsuit was filed earlier this month in the local circuit court. In the suit, the niece of a former patient at a Richmond-area nursing home alleged neglect, claiming that their negligent care led her aunt to injury. The niece of the former patient says that her aunt is now of "unsound mind."

The patient named in the lawsuit, Elise Harvey, was a resident in the nursing facility from October 2009 through mid-January 2010, when she was sent to another facility.

The suit alleges that in the case of Harvey, the nursing home did not meet their "obligations of care" and that they are guilty of a "conscious disregards for her rights and safety. " Several citations were given to the nursing home prior to Harvey's admission into the facility, the lawsuit indicates. Among these citations included a failure to clearly mark drugs, failure to provide proper nourishment to patients, failure to meet quality standards and supply a sanitary atmosphere, as well as a lack of comprehensive care plans.

The lawsuit alleges that these previous failures and citations are the very same negligences that led to Harvey's injury - "accelerated deterioration of health and physical condition beyond that caused by the normal aging process" - which is allegedly the result of misconduct by the employees of the nursing home.

Among the injuries suffered while Harvey was a patient at the nursing home, according to the lawsuit, included severe weight loss, sores and bruises from falls, medication errors, poor nutrition and dehydration. The suit alleges that this nursing home abuse caused Harvey to suffer from severe emotional distress such as a "loss of personal dignity" and "degradation."

According to the lawsuit, the nursing home was medically negligent in providing care and supervision to Harvey, and that the nursing facility was also guilty of committing corporate negligence; the suit claims that the company who owns the nursing home failed in the hiring and supervision of staff as well as in the maintenance of medical supplies.

The lawsuit specifically lists acts of negligence by the nursing home, its staff and its parent company. They claim that the company failed to appropriately screen new hires for adequate competence, and that the nursing home failed to ensure that Harvey received the appropriate care that is required by law.

Nursing home abuse is a rising issue in the United States. If you suspect that a loved one has been a victim of nursing home negligence or abuse, contact the Law Offices of Dr. Bruce G. Fagel at (800) 541-9376 or click here to visit our website.

New legislation on its way to the Illinois Senate would give patients access to detailed background on physicians in that state. Through these detailed physician records, patients would be able to learn if their doctor has ever made medical malpractice payments, if they have ever been fired, or criminal history, among other data.

The battle for legislation giving patients more access to information about doctors has gone on for nearly a decade in the state of Illinois, but last week's passing of the "Patient's Right to Know Act" in the Illinois House marked a very significant turn in the battle. The act was passed as a standalone bill in the House and will now go into the Senate.

Supporters of the state's patient's rights legislation identified a Chicago Tribune investigative series as a major influence in the creation and passing of such legislation. The series of investigative reports exposed slowness by state regulators in responding to convicted and dangerous physicians, many of whom were able to practice in the state without being checked.

The only information currently available online to patients is whether a physician has been disciplined by the Illinois Department of Financial and Professional Regulation. The new Patient's Right to Know Act would require documentation of medical malpractice payments and criminal history to be available for viewing by patients online.

After a narrow victory in the House, it is not clear if the legislation will be able to pass in the Illinois Senate. In the past such legislation has failed in passing due in part to its opposition by the Illinois State Medical Society, an organization's whose power - both political and financial - has influenced past defeat of similar legislation.

Many Illinois doctors oppose this legislation citing the cost of maintaining such a database of records would be beyond what the state can afford, although a recent study found that the creation and maintenance of this database would cost less than $41,000.

Similar legislation once passed in Illinois, but as an amendment to an existing law that placed caps on medical malpractice awards. This gave patients access to detailed physician profiles online for a year, and the site received very heavy traffic. But once the Illinois Supreme Court declared such malpractice award caps unconstitutional, the law and all of its amendments were eliminated.

Patient's rights is a very important subject, and it will be interesting to see how this legislation plays out in the Illinois state senate. If you believe that you or a loved one have been a victim of medical malpractice, contact the Law Offices of Dr. Bruce G. Fagel at (800) 541-9376 for a free consultation.

After lengthy negotiations between lawyers and doctors in the state of Virginia for a compromise on awards in medical malpractice lawsuits, a deal has apparently been reached that would raise the current cap on medical malpractice lawsuit damage awards in the state.

According to HamptonRoads.com, the Virginia Trial Lawyers Association and Medical Society of Virginia have agreed to a deal that would increase the current cap on payouts in medical malpractice lawsuits by $50,000 a year starting in 2012, which would raise the cap to $3 million by 2031.

Since 2008, Virginia's cap on such lawsuits has remained at $2 million. Leaders in the courts of justice committees in the state's General Assembly urged the trial lawyers and doctors to reach a deal on the state's medical malpractice lawsuit caps, and the two groups have gone back and forth for the past two years in attempt to reach an agreement.

Though members of the trial lawyers group say that they will never be content with a law requiring any type of cap on damage awards, both groups agree that they are happy to have made some type of progress.

The state of Virginia's cap on medical malpractice lawsuit awards was established in 1976 with an initial cap of $750,000, which has increased over time. The state also has the Virginia Birth-Related Neurological Injury Compensation Program which covers costs of medical care and assistance for a lifetime for those children affected by birth injury.

Virginia, which is one of only a few states that limit economic and non-economic awards in medical malpractice lawsuits, had one of the highest caps on awards of any state.

The Law Offices of Dr. Bruce G. Fagel and Associates can assist you with any questions about a potential medical malpractice case. Call our offices at (800) 541-9376 or visit us at www.fagellaw.com.

The federal government will pay a multi-million dollar settlement in a medical malpractice lawsuit filed by a Virginia couple whose child was born with severe neurological damage at a Navy hospital near Virginia Beach.

The couple, Scott and Michelle Holweger, filed the medical malpractice suit in early 2010 claiming that a naval medical center in Portsmouth, Va., provided inadequate care that led to birth injuries. The couple sought $15 million in damages in the suit, but the government settled for a lower amount, denying any form of medical malpractice.

The lawsuit states that Michelle Holweger checked into the hospital when she was 35 weeks pregnant. Upon checking into the hospital, Holweger complained of cramping in her abdomen and was placed in a triage room. There she was placed on fetal heart monitor, which showed signs of stress on the fetus. A doctor should have been immediately notified, but the lawsuit says that Holweger was left in the triage room by hospital staff for an hour before any type of intervention from a doctor occurred.

An emergency C-section was performed by hospital doctors nearly two and a half hours after Holweger was admitted. The fetus suffered a loss of oxygen, which was determined by doctors to be caused by the placenta dethatching from the wall of the uterus.

The suit says that the child, who was born pale and with respiratory failure, was intubated and transferred to another medical facility. The child now has cerebral palsy and has several developmental disabilities.

A December trial was set for the case, but after a couple of months of talks a settlement was reached in the case. A portion of the settlement will go towards medical bills, while the remainder will go towards the care that the child will need for the rest of her life.

The circumstances surrounding the birth of the Holwegers's child are very unfortunate. The cerebral palsy treatment that their daughter will need for the rest of her life will be very costly for this young family. If you believe that you have been a victim of medical malpractice, contact the Law Offices of Dr. Bruce G. Fagel for a free consultation. Call us toll free at (800) 541-9376 or click here to visit our website.

The second case involves a hospital and medical group in the Central Valley where a child was delivered with severe hypoxic-ischemic encephalopathy as a result of negligent obstetrical care. The baby was placed on mechanical ventilation and after several days of dire predictions from the doctors and nurses, the parents agreed to turn off the ventilator. Again, the baby was able to breath on his own. In this case, the medical staff then sent the child home with his parents who were instructed to give the baby liquid morphine whenever the baby cried. The parents could not bring themselves to giving morphine and the baby survived and thrived. Just prior to mediation in the case, the defendant admitted liability for the child's injuries. The case then settled for $8 million. Had these two babies died, the defendants in each case would face a total liability exposure of $250,000.

The third case involves a large hospital in Los Angeles where a mother entered the hospital at term and the fetal monitor showed a normal healthy fetus. Several hours later, the fetus showed evidence of severe distress on the fetal monitor, but the delivery by c-section was delayed for more than an hour because of the unexplained unavailability of an anesthesiologist. When the anesthesiologist did arrive, it took more than 30 minutes to deliver the baby, with the OB taking over 10 minutes from the start of surgery to deliver the baby. After a minimal resuscitation, the obstetrician and the anesthesiologist decided to declare the baby a stillbirth, thus limiting the liability exposure for all defendants to a maximum of $250,000. The fetal monitor strip clearly predicted that the child would suffer from a severe hypoxic-ischemic brain injury if born alive, so the doctors delayed the delivery to be sure that the baby would not survive the birth process.

This case is probably the most outrageous since the parents were given no opportunity to participate in a decision regarding their child. It unfortunately represents a far more common scenario in modern medical care in California than the first two cases in which these children's will to live exceeded the doctors' attempts to end their lives.

No physician or nurse can ever admit that they consider the financial impact of their medical decisions and they certainly cannot ever admit that their recommendations for the withdrawal of life support have anything to do with the effect of the MICRA limit on non-economic damages. Such an admission would lead directly to forfeiture of their license and possible criminal charges. But so long as there is a significant financial consequence of liability for a death versus liability for an individual who requires a lifetime of medical care, doctors and hospital executives will continue to "bury their mistakes."

If you or a loved one have been a victim of medical negligence or malpractice, do not hesitate to contact the Law Offices of Dr. Bruce G. Fagel and Associates. Dial (800) 541-9376 and speak to an expert legal representative.

Discussions about the withdrawal of life support usually occur in the context of some unexpected deterioration in the patient's condition. While the family of an adult patient must deal with considerations about what the patient would want, many such discussions focus on the quality of life and other medical conditions that may have preexisted the hospitalization. Oftentimes the family will consider the prior quality of life and the effect on the family of a prolonged life in a state of unresponsiveness. However, the case of a child who enters the world on life support presents a unique situation and a devastating decision for the child's parents.

When parental expectations of a healthy outcome for their child results in the subsequent delivery of a child with severe birth depression who requires ventilatory support and admission to a Neonatal Intensive Care Unit, any family will feel overwhelmed. No one can be prepared to wrestle with the conflicting outcomes of a decision to withdraw life support from a newborn baby. In such a situation, the parents are totally dependent on the honesty and accuracy of the doctor's recommendations. This is where parents are most vulnerable, and doctors who know the financial consequences of their liability for a lifetime of care can easily manipulate them. But the parents are never aware of this motivation by their child's doctors.

My office has been involved in three separate cases this year that are examples of this little discussed cover-up by health care providers. One case involves a hospital in the Bay Area where a combination of obstetrical and neonatal negligence during the delivery and aftercare resulted in a child with severe hypoxic-ischemic encephalopathy. After three days on life support with mechanical ventilation, the parents were encouraged to turn off the ventilator.

After agonizing for two days, the parents agreed; yet when the machine was actually disconnected, the baby was able to breathe on his own. The doctors then told the parents that their child would have no quality of life and never even recognize them; and the parents were then encouraged to take the baby to a facility for "hospice care." The parents again agreed.

After one week without feeding, a nurse placed a few drops of formula into the infant's mouth with a syringe and the baby began to feed. The parents then took the child home, and two years later when the case was settled, the child was able to walk with assistance and showed near normal cognitive behavior with fine motor control in his hands. The case was settled for $7.5 million.

In the final part of this series, two more cases will be discussed in which doctors influenced parents' decisions after medical errors during delivery led to injuries. If you believe that you have been a victim of medical malpractice, visit our website at www.medicalmalpracticedoctorlawyer.com or contact us at 1-800-541-9376.

One of the most perverse of the many unintended consequences of California's limit on noneconomic damages in medical negligence cases is that it creates a financial incentive for doctors and hospitals to "bury their mistakes." When the cause of a patient's condition is negligent care, the physicians and hospital have a very large financial interest to discontinue care and allow the patient to die.

No doctor, nurse, or hospital executive would ever admit that they have a financial interest in the withdrawal of life support of any patient; but at the same time, every such health care provider in California knows all about the MICRA limitation on non-economic damages in medical malpractice cases, either from their trade associations or their personal experience of being sued. Since 1975, victims of medical malpractice are limited to a recovery of $250,000 for all non-economic damages, including pain and suffering or emotional distress.

In a wrongful death case, all the heirs share the same limit of $250,000 regardless of the number of heirs. If the decedent was a working adult, the heirs may be able to claim an economic loss of income or home services. But when a child dies, the parents cannot prove any loss of income from their child, leaving non-economic damages as their only claim.

Although non-economic damages are limited, there is no limit on economic damages for medical care costs or loss of earnings. Since no inflation factor was made part of the law in 1975, the purchasing power of $250,000 has decreased to less than $80,000 today. While wages in the U.S. have increased in line with inflation since 1975, medical care costs have increased more than 700 percent in the last 35 years. As a result, the costs of future medical care for a patient with a severe brain injury can easily exceed several million dollars, even for someone with a markedly reduced life expectancy.

Most doctors in California still have the same $1 million limit for their professional liability insurance that they had in 1975. This means that a doctor who is found to be legally liable for a catastrophic injury to a patient could easily face a potential judgment of several million dollars above their insurance. As such, a doctor could feel the pressure to settle for the $1 million limit, even if they think they did nothing wrong, because of the risk of an over-policy judgment. Also, since California has joint and several liability for economic damages, any hospital could face liability of at least several million dollars, even if their relative liability is small compared to the doctor.

These financial and legal facts create a powerful incentive for hospitals and doctors to encourage families to discontinue care when a patient is on life support, which usually means that they are breathing with a mechanical ventilator. When that mechanical ventilator is discontinued before the patient has sufficiently recovered their neuro-respiratory drive, the patient usually dies.

In part two of this series, the dependency of families on doctors in deciding whether the withdrawal of life support is necessary in the case of newborns will be discussed. If you believe that you have been a victim of medical malpractice, contact the Law Offices of Dr. Bruce G. Fagel and Associates at 1-800-541-9376 or visit our website at www.fagellaw.com.