July 2011 Archives

One area of pre-trial discovery that can create factual disputes which will negate the defense experts involves hospital policies and procedures. Any expert who reviews the medical records and forms opinions based on those records may be forced to contort the standard of care defense if the care was in violation of hospital policies.

When an expert testifies that the care may have violated a specific hospital policy but still be within the standard of care, the jury will usually disregard that expert's opinion.

When the case progresses to expert depositions, the plaintiff 's attorney needs to prepare a detailed factual summary to present as hypothetical questions to the defense expert, and that factual summary should emphasize the factual disputes in the case.

Many experienced defense experts will anticipate being trapped with such hypothetical questions and will either refuse to admit that anything is below the standard of care, including direct violation of hospital policies, or will admit to negligence in some form but then deny any causal connection to the injury.

Either response will allow the jury to focus on the facts of the case rather than the expert's contrived opinion.

This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

A nursing home watchdog organization has determined that the death of an elderly resident was the result of nursing home neglect and abuse.

The 93-year-old nursing home resident suffered bed sores so severe that she had to be transported to a hospital from the nursing facility. She died shortly after.

A report summarizing the findings of an investigation completed by the nursing home abuse watchdog organization have yet to be released to the public, but the nursing home reprimanded staff and fired a nurse following the incident.

The report says that the staff was unaware of the severity of the elderly resident's wounds, and upon asking the head nurse about the resident's wounds that she did provide necessary feedback.

Investigators concluded that basic care and treatment needs for the elderly resident had not been met, as the nursing home failed to provide documentation to prove otherwise.

The daughter of the resident says that the nursing home has a wound team that should have been called in to treat her mother. She claims that the hospital, under the impression that she was responsible for caring for her mother, was fully prepared to report her to authorities because of the severity of her mother's bed sores.

The hospital then discovered that her mother had been transferred from the nursing home, and an incident was not filed until a couple days after the woman's death.

Nursing home negligence and abuse are types of medical malpractice. Both are becoming far too common, and can often lead to serious injury or even death. If you believe that a loved one has been the victim of abuse or negligent care in a nursing home, please contact the Law Offices of Dr. Bruce G. Fagel & Associates.

Call us toll-free at 1-800-541-9376 for a free legal consultation, or click here to contact us online.

The real purpose of a medical expert involves the issue of causation. But since many medical experts do not understand legal causation (which is often different than medical causation), it is important to provide some direction to the medical expert.

With the exception of cancer cases, where there is an extensive body of medical literature on staging and survival statistics that would form the basis of any expert opinion on causation, in many medical negligence claims, causation is more logical than scientifically provable. In such cases, the defense will often try to prove that the injury occurred before the patient entered the hospital or that some other medical cause was more important than the cause from negligent care.

In order to properly utilize medical experts prior to the filing of a claim, plaintiffs' attorneys must under-stand that causation in medicine can only compare one factor to a specific outcome, while in most medical medical negligence cases, the injury or death is due to multiple factors, and the plaintiff need only prove that one factor was a substantial factor in causing the injury or death.

Once a complaint is filed, the case should focus on the discovery of facts that are in dispute. The defense will always try to establish the medical records as the basis for the facts of the case, and then use the "medicine" of the case to focus their experts.

However, factual disputes create a problem for the defense since the defense experts may have to concede negligence if certain facts are correct. The best factual dispute is between the defendants, since that would make it more difficult to maintain a united defense.

Such factual disputes are rarely evident in the medical records, since every health care provider is advised to never criticize another provider in the medical records.

Therefore, discovery depositions should concentrate on matters not in the medical records, especially conversations or the lack thereof. Finding factual disputes in a medical malpractice case is more important than having "big name" medical experts.

If the only factual dispute in the case is between the plaintiff and the defendants, the defense can often turn such experts into giving up the case by using the defendants' version of the facts.

But a factual dispute between defendants can negate the effectiveness of defense medical experts, and sometimes a defense expert will be forced to admit that there was negligent care although they will try to say that it was not causally related to the injury or death. However, once a defense expert is forced to admit negligence, he or she loses much effectiveness as an expert.

This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

Under the law in California and every other state, proof of liability for claims of negligence against a health-care provider requires expert testimony on both standard of care (negligence) and causation.

While expert testimony is necessary to defeat a motion for summary judgment, many plaintiffs' attorneys mistakenly believe that expert testimony must be the driving force of the case, and in doing so, play into the defendant's game plan for defending the case. This mistaken focus on the medicine of the case is understandable since any attorney filing any medical malpractice claim must rely on at least one medical expert to provide confirmation of the validity for a claim of negligence against a health-care provider.

However, from the moment a medical malpractice claim is filed until the case goes to a jury at the end of trial, the defense will often ignore the facts of the case and focus only on the medicine and expert opinions. Because most defense attorneys are so adept at keeping the focus of almost any medical-malpractice case on the medicine and medical experts, jurors fail to find liability in the majority of medical-negligence cases that go to jury verdict. While medical experts are legally required in medical-malpractice cases, they should not be, and they do not need to be, the focus of the claim.

The role and purpose of medical experts is different at different stages of a medical negligence claim. Prior to the filing of a claim, at least one medical expert should agree that there was substandard care, but a different expert may be needed on the issue of causation. While providing the medical records to an expert and then waiting for a decision on standard of care and causation is the easiest method for obtaining the required expert opinions, it is not always the best way.

Often the opinion of the expert may be affected by the facts of the case, which may not be accurately or completely reflected in the medical records. A focused summary of the important facts of the case, prepared by the attorney, will assist any expert who is asked standard of care opinions.

While any such document is discoverable at the time of the expert's deposition and many attorneys are reluctant to provide such direction to an expert, it is better to have a focused expert who relied on the plaintiff 's version of the facts than an expert who thinks that their interpretation of the medical records is more important than the facts of the case.

This an excerpt of an article written by medical malpractice attorney Dr. Bruce Fagel, which originally appeared in the March 2011 issue of Plaintiff Magazine

The U.S. Supreme Court is considering whether they should hear a case involving the military's controversial medical malpractice policy, which disallows active-duty members to file medical malpractice lawsuits against military doctors.

The restriction on filing medical malpractice lawsuits, known as the Feres Doctrine, has been debated for several years. Military families want the doctrine repealed, while those who oppose say that military personnel receive other benefits - specifically medical care through the Veteran's Administration's nationwide hospitals.

But families of loved ones who have suffered injury or even death as a result of medical errors and malpractice say that the care provided at those facilities are not nearly enough compensation.

The family of 29-year-old sergeant says that skin cancer was discovered by doctors but they failed to inform him. He went on to die from the cancer, but because of the doctrine they were unable to file any medical malpractice claim. Their attempts to turn over the doctrine failed in Congress.

The debate about the doctrine has been re-fueled by a California family who has decided challenged the doctrine once again. Their son received surgery to correct his appendicitis. Following the surgery, a nurse placed a breathing tube down his esophagus rather than his trachea.

As a result of the nurse's medical error, their son's brain was severely deprived of oxygen and he now remains in a vegetative state.

The Supreme Court will announce next week whether they will hear the family's case against the military's Feres Doctrine.

For more information about medical malpractice, click here to visit our website. If you believe that you or a loved one have been a victim of medical malpractice, call us toll-free at 1-800-541-9376 for a free legal consultation.

A child has been awarded in a medical malpractice lawsuit after medical errors led to severe brain injuries at birth.

As a result of the birth injury, the child now has cerebral palsy which requires her to be fed through a feeding tube and has led to immobility.

The family and their lawyers stated in the lawsuit that the injuries their daughter faced at birth were the result of a series of medical errors and medical mistakes by hospital doctors and staff.

The lawsuit claimed that doctors failed to notice an abnormality in the child's heart rate, a condition that should have called for a much earlier delivery. The lawsuit also states that the child suffered from oxygen deprivation as a result of mistakes made by nursing staff. The deprivation of oxygen caused the child to develop cerebral palsy.

The money awarded in the lawsuit will cover the costs of the round-the-clock care that will be required for the rest of the child's life.

If you believe that a doctor's error may have caused your child's cerebral palsy, contact the Law Offices of Dr. Bruce Fagel & Associates for a free consolation about your potential medical malpractice case.

Call us toll-free at 1-800-541-9376 or click here to contact us online.

A hospital is being sued after a risky birthing procedure caused the now 11-year-old child to suffer from serious conditions such as seizures, according to the lawsuit.

The family of the child says that he suffers from headaches, developmental delays, and frequent seizures - all a result of what they say was an unnecessary birthing procedure used by their doctor.

According to the lawsuit, the child's mother went to the hospital to give birth at a time that was near-term. There were indications of complications or other issues that require the use of any special birthing procedures, the suit says.

Despite the lack of complications, the lawsuit states that the doctor elected to use a vacuum birthing procedure. The plaintiffs claim that before performing the procedure, the doctor informed them that he had never performed a vacuum delivery procedure before and that he was not comfortable performing the procedure.

The lawsuit states that upon the birth of the child, noticeable symptoms of seizures were displayed, including unintentional left arm movements and blinking of the eye.

The child was transferred to an intensive care facility where a doctor indicated that child had suffered a "right frontocerebral hemorrhagic infarction with a subdural hemorrhage" - bleeding in the brain - as well as other significant conditions. He was transferred to another facility were surgery was performed, according to the lawsuit, where he continued to have seizures.

The lawsuit claims that the doctors completed the risky birthing procedure without proper knowledge or training on how to complete the procedure properly and successfully. The suit also states doctors failed to thoroughly explain the risks of the procedure to the child's parents, who only speak Spanish.

Because of the doctors' negligence, according to the plaintiffs, the child suffered birth injuries such as brain damage and other conditions which have resulted in serious developmental delays.

If you believe that doctor's error or negligence caused your child to suffer an injury at birth, contact the Law Offices of Dr. Bruce Fagel & Associates for a free legal consultation. Call us toll-free at 1-800-541-9376 or click here to contact us online.

A woman is filing a wrongful death lawsuit, claiming that her husband's death was the result of nursing home negligence.

Shirley Osburn says her husband, John Osburn, was a resident in a nursing home in the summer of 2009. She claims that her husband was the victim of various forms of abuse during his time at the nursing facility.

A complaint filed in local court on June 23, 2009, stated that her husband had suffered neglect, abuse, and poor care, all of which were to blame for serious injuries - according to the complaint.

According to the lawsuit, Osburn's husband developed serious injuries and illnesses as a result of the abuse such as dehydration, sepsis, and urinary tract infections. She says that nursing home staff failed to provide quality care and a safe environment for her husband.

The lawsuit says that because of the nursing home's negligent care, the plaintiff's husband suffered a deteriorating mental and physical condition during his residency at the nursing home.

The plaintiff is seeking punitive damages, as well as compensatory damages.

Unfortunately, abuse and negligence in nursing homes is increasing throughout the country. Nursing homes are trusted to provide professional and quality care for elderly loved ones, and when they don't, it is important that these facilities are held accountable for their actions.

If you believe a loved one has suffered nursing home abuse or negligence, please contact the Law Offices of Dr. Bruce Fagel & Associates for a free legal consultation.

Call us toll-free at 1-800-541-9376 or click here to email us.

A family has filed a wrongful death lawsuit against a hospital following the death of their 2-year-old child, which the lawsuit claims was caused by a medication error.

The child's parents say that the child was prescribed heparin, a drug that is typically used to prevent blood clotting during medical procedures. The child had been prescribed the medication as she underwent kidney dialysis.

The lawsuit says that an overdose of the blood-thinner caused the death of the couple's daughter, claiming that hospital staff administered a dosage of the medication that was 10 times higher than what had been prescribed.

The child was born with congenital defects and was brought to the hospital named in the lawsuit where she received liver, bowel and pancreas transplants. Shortly after being discharged, she was readmitted to the hospital because of an infection.

A virus caused by the infection required the child's kidneys to malfunction, which required her to be placed on dialysis. She was placed on heparin infusion pump, which the lawsuit claims was incorrectly programmed, causing the medication error which went unnoticed for nearly five hours.

The overdose led to the child suffered bleeding in the brain, and she died several days later.

The family seeks damages for wrongful death as well as for their daughter's suffering and the emotional distress the family has suffered.

Wrongful death can often be the result of medical malpractice. If you believe the death of a loved one may have been caused by a hospital or doctor's mistake, contact the Law Offices of Dr. Bruce Fagel & Associates for a free legal consultation.

Click here to contact us online, or call us toll-free at 1-800-541-9376.