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Archive for the ‘ Medical Malpractice ’ Category

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Feb

SURGICAL ERRORS AND MEDICATION ADMINISTRATION ERRORS ARE TOP REASONS PATIENTS NEED TO TAKE CONTROL OF THEIR OWN CARE.

Below is a link to an article, written by a medical doctor, which explains how dangerous it is to go to the hospital. In the February 8, 2009, article, the doctor highlights surgical errors and medication administration errors as areas of concern.

“Surgical Errors

The Risk: About 1300 times a year, surgeons operate on the wrong person or remove the wrong limb or organ. Also, doctors leave surgical instruments inside the body once in every 5000 surgeries. This is the stuff of headlines, but such incidents are rare, considering that more than 20 million surgeries occur every year. Far more common preventable problems are stitches coming loose, blood clots forming during or after surgery, and infections. These can lead to very serious outcomes.”

“Medication Errors

The Risk: Giving the wrong drug, administering the wrong dose, mixing drugs that interact badly, or giving a medication to which a patient is allergic—all can be deadly. Unfortunately, such mistakes are not rare. Adverse drug events cause one out of five injuries or deaths to hospital patients in the U.S.”

Pennsylvania injury lawyers at Schmidt Kramer PC have successfully prosecuted such obvious medical malpractice cases in the Harrisburg area. The attorneys at Schmidt Kramer PC have also benefitted their medical malpractice clients with very good results in more difficult medical negligence cases.

Click on the link below for the full article.

http://www.parade.com/health/2009/02/dont-let-hospital-make-you-sick.html

D. Joseph Chapman

Attorney at Law

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Jan

Pennsylvania Supreme Court Affirms Holding On MCARE Expert Testimony

Below are the links to the opinions by Justices Saylor and Greenspan in the 3-3 decision (Justice McCaffery did not participate) issued January 29, 2009 in Gbur v. Golio. The Pennsylvania Supreme Court affirms the trial court and Superior Court opinions which allowed an expert in radiation oncology to testify in a medical malpractice case involving a urologist. The lowers courts opined that the expert and his background was in the same sub-specialty and qualified under Section 512(c) of the MCARE Act. The Supreme Court affirms but writes 2 opinions since the Court is split on the reasons for affirmation. Justice Saylor would affirm because the motion in limine and trial testimony did not fully develop the objection under Section 512 to disqualify the expert. Justice Greenspan would find that the record was developed but the expert had sufficient background and credentials to qualify to testify as an expert under Section 512 of the MCARE Act. Therefore, the Superior Court is affirmed and the issue that the Court was reviewing about a medical expert of a sub-specialty testifying is preserved for another day.

Justice Saylor Opinion Link
http://www.pacourts.us/OpPosting/Supreme/out/J-119-2008mo.pdf

Justice Greenspan Link
http://www.pacourts.us/OpPosting/Supreme/out/J-119-2008co.pdf

Scott B. Cooper
scooper@schmidtkramer.com
717-232-6300

Dec

Third Circuit Affirms Decision from Eastern District of Pennsylvania Holding Failing to Settle Medical Malpractice Case on Behalf of Insured Was Bad Faith.

Below is a link to the Third Circuit’s opinion in Jurinko v. Medical Protective Co., 06-3519 (3d Cir. December 24, 2008) (Not Precedential) , which affirms a bad faith jury verdict arising out of a medical malpractice case. The appeal came out of the Eastern District of Pennsylvania. The court held the jury properly awarded punitive damages, but the amount of those damages was reduced in this appeal . The bad faith claim was based on the medical malpractice insurance company’s behavior during a case where the doctors failed to diagnose cancer in a patient. The attorney defending the defendant doctor told Medical Protective’s claims adjuster the case should be settled. The adjuster took no action to settle. The CAT fund asked the carrier to pay its $200,000 amount of coverage. Despite a substantial settlement by another of the defendants (over half a million dollars), Medical Protective was unwilling to offer more than $50,000. Medical Protective’s adjuster wrote notes which showed he thought the case was worth $750,000, and expected it to settle at an even higher $1,000,000. A jury found the Defendant doctor negligent of medical malpractice, and awarded $2.5 million. Now the doctor is at risk for having to pay for his medical negligence from his own assets. The 3rd circuit found there were facts sufficient to find bad faith, because the adjuster did not have a reasonable basis for failing to settle under the policy and had acted “outrageously.” An award of attorney’s fees was calculated on the lodestar basis (rather than on percentage-of-recovery basis) by the district court and affirmed.

http://www.ca3.uscourts.gov/opinarch/063519np.pdf

Dec

FDA warns public about dangers from diet pills with inadequate labeling.

The CBS Evening News (12/22, story 10, 0:25, Smith) reported, “There is a new warning tonight for Americans looking to take a short cut to weight loss. The FDA has listed more than 25 weight loss products to avoid because they contain ingredients that are not labeled and could cause serious health problems. Many of these products claim to be natural or contain herbal ingredients.”

On its web site CBS News (12/23) adds, “The FDA warning comes after an analysis found that the ‘undeclared active pharmaceutical ingredients’ in some of the products contained a controlled substance, a drug not approved for marketing in the United States and a suspected cancer-causing agent.”

In an article published on the web sites of over 125 media outlets the AP (12/23, Alonso-Zaldiver) reports, “They may promise an easy fix to weight problems, but the Food and Drug Administration on Monday said the concoctions contain unlisted ingredients, including high doses of a powerful anti-obesity drug, as well as a suspected carcinogen.” FDA enforcement lawyer Michael Levy said, “When consumers are buying these products online, we’re telling them that if it sounds too good to be true, it is likely to be too good to be true.”

Bloomberg News (12/23, Blum) reports, “The FDA is seeking to have the diet pills pulled from the market and may take additional steps, such as seizing them or pursuing criminal charges, according to the statement.” FDA Center for Drug Evaluation and Research director Janet Woodcock said, “These tainted weight loss products pose a great risk to public health because they contain undeclared ingredients and, in some cases, contain prescription drugs in amounts that greatly exceed their maximum recommended dosages. … Consumers have no way of knowing that these products contain powerful drugs that could cause serious health consequences.”

Dec

The Price of Beauty

Reconstructive breast surgery may have “hidden choices.”

The New York Times (12/23, A1, Singer) reports, “For many cancer patients undergoing mastectomies, reconstructive breast surgery can seem like a first step to reclaiming their bodies.” However, “even as promising new operations are gaining traction at academic medical centers, plastic surgeons often fail to tell patients about them. One reason is that not all surgeons have trained to perform the latest procedures. Another reason is money: some complex surgeries are less profitable for doctors and hospitals, so they have less of an incentive to offer them, doctors say.” Diana Zuckerman, the president of the National Research Center for Women and Families, a nonprofit group in Washington said, “It is clear that many reconstruction patients are not being given the full picture of their options.”

Dec

Pennsylvania Supreme Court Holds That Lack Of Informed Consent Can Be Establish By Circumstantial Evidence In Medical Malpractice Case

Attached is the link to the Pennsylvania Supreme Court opinion in Fitzpatrick v. Natter. The Supreme Court reversed the trial court’s decision that a plaintiff-patient herself must testify in an informed consent claim to establish that an undisclosed surgical risk would have been a substantial factor in that patient’s decision making in considering surgery. The Court held that proving that the plaintiff-patient would have considered the undisclosed risk to be material can be established by a spouse, for example, or from other indirect or circumstantial forms of evidence. The Court accepted the rationale that imposing any other burden would unfairly exclude plaintiffs who have become incompetent or who died as a result of the underlying malpractice. The Court stated: “The primary question posed here is whether the testimony of a person other than the patient can be sufficient to prove the substantial factor element. For the reasons that follow, we hold that, as in other areas of the law, circumstantial or indirect evidence may suffice for an informed consent patient to prove the elements of her claim. Therefore, a patient’s decision to refrain from testifying at trial is not fatal to the claim.” The Court explained that 40 P.S. § 1301.811-A(d) does not require “that the patient must testify that the missing information would have been significant to his or her decision-making process. Of course, if the General Assembly intended to restrict so severely the evidence available to the plaintiff in informed consent cases, it could have done so explicitly.”

The Supreme Court remanded the case back to the Superior Court to review the trial court’s evidentiary rulings which found that plaintiff’s experts (an anesthesiologist and a neurologist) were unqualified to establish a consent claim against the neurosurgeon defendant. The Court did not accept the plaintiff’s argument that the defendant doctor established the risks and the likelihood of the risks at trial. The defendant can establish the plaintiff’s burden of proof in an informed consent case in part if the defendant is qualified as an expert, if the defendant’s opinions are testified to a reasonable degree of medical certainty, if the defendant identifies the risks of the procedure, and if the defendant identifies the likelihood of any of the acknowledged risks occurring. The Court found the record lacking in this regard, and directed the Superior Court to review the evidentiary rulings restricting the testimony of plaintiff’s experts.

Scott B. Cooper, Esquire

http://www.pacourts.us/OpPosting/Supreme/out/J-86-2007mo.pdf

Dec

Middle District of Pennsylvania District Court holds Medical Malpractice Defendant may not use Plaintiff’s treating physician’s testimony when generalities are not applied to facts and testimony is outside the scope of direct examination

A memorandum opinion in the case, Trout v. Milton S. Hershey Medical Center, 576 F. Supp. 2d (M.D. Pa. 2008), was recently issued by a federal court in the Middle District of Pennsylvania. The ruling restricted what evidence was admissible in a medical malpractice case, in which Defendant attempted to use certain deposition testimony by Plaintiff’s treating physician. On cross-examination during the deposition, the doctor testified about general practices and did not relate those generalities to facts about Plaintiff’s treatment. United States District Judge, Christopher C. Conner, cited federal rules of evidence 702, 401, and 403 in holding the testimony inadmissible. He further found that the testimony was outside the scope of the doctor’s direct examination according to 611(b). The treating physician also testified favorably concerning the qualifications of Defendant’s expert. This testimony was also found inadmissible because it was outside the scope of the direct examination and was not related to facts in question. The testimony would be relevant to whether the Defendant’s doctor was qualified to testify as an expert, but that decision lies within the discretion of the court. The testimony’s probative value is substantially outweighed by how it might mislead and confuse the jury and short circuit their job of determining the expert’s credibility.

Testimony by the treating physician was admissible when he recounted which medical records he had reviewed before the deposition.

Joe Chapman, Esquire
SCHMIDT KRAMER PC
(717) 232-6300

Dec

Judge: UPMC must pay settlement to former secretary

Friday, December 05, 2008

By Daniel Malloy, Pittsburgh Post-Gazette

An Allegheny County judge set a deadline of today for UPMC to pay a settlement to a former secretary who sued Magee-Womens Hospital for wrongful termination and a violation of the state’s Whistleblower Law.

Donna Kovacs, of Munhall, and the defendants reached a settlement for an undisclosed amount last month as the trial was beginning. The suit named Magee and the UPMC Health System. But the two sides have been squabbling since then about provisions in the settlement, including UPMC’s demand that Ms. Kovacs make a statement that she knows of no other legal violations at UPMC besides what she detailed in the lawsuit.

Common Pleas Judge Eugene B. Strassburger wrote in a brief this week that such a statement is “unreasonable because it would cause the plaintiff to lie.”

Judge Strassburger also ordered UPMC to pay the settlement by today, with interest from Nov. 19. Filed in 2005, the lawsuit alleged that hospital officials altered or destroyed patient records in a way Ms. Kovacs thought was potentially harmful to patient safety.

She alerted her superiors, but instead of fixing the problems, Ms. Kovacs said, hospital officials attacked her for blowing the whistle. Eventually she was fired in November 2004 after six years at the hospital.

UPMC said it had fired her for improperly accessing patient records, which she disputed.

“I think that she was vindicated, both through these proceedings and through the results of this settlement,” said Ms. Kovacs’ attorney, Vicki Kuftic Horne.

In an e-mail, UPMC spokesman Frank Raczkiewicz wrote: “We reached an amicable resolution. We are prepared to fulfill our obligations under the terms to which all of the parties originally agreed.”

As Judge Strassburger ordered, that means Ms. Kovacs does not have to say she knows of no other crimes — freeing her to testify in other pending civil cases that allege similar misconduct by UPMC.

Daniel Malloy can be reached at dmalloy@post-gazette.com or 412-263-1731.

Nov

Pennsylvania Superior Court Holds That Insurance Company Is Not Responsbile To Pay For Insureds Restitution Order

Below is the link to the en banc decision from the Pennsylvania Superior Court on November 18, 2008 in Brethren Mutual Insurance Company v. McKernan where the court holds that an insured may not seek reimbursement from his insurer for a criminal restitution award resulting from criminal prosecution. The court notes that to allow this would run counter to the public policy of restitution which is to help the convict rehabilitate by impressing upon him in some degree the scope of the damages inflicted by his criminal conduct. The court makes sure to note that the decision should “not in any way be interpreted as affecting the law regarding insurance coverage available in civil actions based upon conduct which creates civil as well as criminal responsibility.” The court also writes in footnote 12 that, as a corollary, as part of the sentencing scheme the defendant can be directed to make a payment for restitution even though the victim has already been paid through a civil settlement or when the victim receives compensation from the victim’s insurer for the loss sustained.

Scott B. Cooper

scooper@schmidtkramer.com

717-232-6300

http://www.pacourts.us/OpPosting/Superior/out/e03002_08.pdf

Apr

Family files Lancaster medical malpractice lawsuit after death from lung transplant

April 15, 2008

A woman has filed a Lancaster New Jersey medical malpractice suit against doctors at Lancaster General Hospital after her son received a cancerous lung from a transplant.

The Lancaster medical malpractice case was filed after the woman heard her son had not received the lungs from a healthy 18-year-old teenager, but instead received the lungs from a woman who smoke, drank, and used illegal drugs.

The woman is seeking more than $5 million for damage and suffering in the Pennsylvania medical malpractice lawsuit, according to The Associated Press,

The date of the trial for the Lancaster medical malpractice case hasn’t been set yet.

http://www.cumberlink.com/articles/2008/04/07/news/state/doc47faada0ef473341824981.txt

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