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Medical Malpractice – Winning the Expert Shell Game

Dealing with defense expert testimony consumes more resources than any other aspect of a medical malpractice case. Nevertheless, if a medical malpractice case has merit and is effectively prepared, inroads into the defense expert’s position should inevitably be made during the expert’s deposition. Undermining a defense expert’s position during discovery will increase the likelihood of getting the defendant’s consent to settle and avoiding trial. However, poor performance by defense experts during depositions is being dealt with in another way. When such experts give up key concessions or provide sworn testimony that conflicts with other proofs already in the case, the defense will often simply abandon that witness at the time of trial. While this has always occurred to some degree, it seems to be happening with greater frequency.

Ordinarily, when an adversary fails to call a key witness at trial, the other side has a simple remedy: An adverse inference charge can be requested and given to the jury by the court pursuant to Model Civil Charge 1.18. Adverse inference charges are useful tools that tend to keep things honest. First, the prospect of an adverse inference charge forces parties to evaluate their cases realistically during settlement negotiations, because all sides know that if a vital piece of evidence favors their adversary, the jury’s attention will be drawn to it one way or another. Second, the ability to obtain an adverse inference charge decreases the likelihood that the outcome of a case will be determined by trial tactics and gamesmanship.

Regrettably, it has been our experience that it is difficult to obtain an adverse inference charge from a trial judge when a defense expert is not called in a medical malpractice trial. Two poorly written Appellate Division cases have indicated in a generic way that adverse inference charges are inappropriate when a party fails to call an expert. Defense attorneys are relying on these cases to take the position that they have absolute discretion about deciding whether they must call a previously named expert witness produced during discovery. This is unfortunate on several different levels. First, giving defendants the ability to bar juries from hearing the opinions of their experts when these witnesses give up key concessions during discovery serves to insulate medical malpractice jurors from some of the most relevant and probative evidence available in such cases. Further, because defendants are being permitted to hire and then dismiss an expert with no adverse consequences, medical malpractice cases are turning into an expensive defense expert “shell-game” for plaintiff attorneys. Much like the games that take place on the street corners, these games are premised on slight of hand and are impossible to win. Significant billable time, resources and money are spent to conduct discovery on witnesses who are likely to never appear at trial. Discovery and trial strategy is developed, but after the plaintiff rests, whatever was under the shell suddenly disappears.

State v. Clawans, 38 N.J. 162 (1962), is the leading case in New Jersey regarding the propriety of adverse inference charges. According to the New Jersey Supreme Court, the following three factors must be present for an adverse inference charge to be provided: (1) the witness must have been within the power of the non-calling party to produce; (2) there must be a showing that the testimony of the witness not called would not have been unimportant, cumulative and inferior to that already utilized in respect to the fact to be proved; and (3) the witness must not be equally available to the adverse party.

Clawans dealt with the issue of an adverse inference charge in the context of an uncalled fact witness, but other decisions before and after Clawans have held adverse inference charges were appropriate when the uncalled witness was an expert. De Pasquale v. Contalvi, 126 N.J.L. 136 (1941); Bayer v. Frank P Farrell, Inc., 69 N.J. Super. 346, 364-65 (App. Div. 1961); Kochen v. Consolidated Police and Firemen’s Pension Fund Commission, 71 N.J. Super. 463, 473 (App. Div. 1962).Other appellate decisions since Clawanshave also indicated that an adverse inference charge was appropriate when an expert is not called to testify at the time of trial.Parentini v. S. Klein Department Stores, 94 N.J. Super. 452 (App. Div. 1967); Genovese v. N.J. Transit Rail Operations, 234 N.J. Super.375 (App. Div. 1989).

In contrast to the above decisions holding that an adverse inference charge is appropriate when an expert witness is not called to testify at trial, there have been post-Clawans decisions that reach the opposite result. Interestingly, in these holdings, no Clawansanalysis was performed. In McQuaid v. Burlington County Memorial Hospital, 212 N.J. Super. 472 (App. Div. 1986), the Appellate

Division, while ruling that the plaintiff was not entitled to an adverse inference charge when defense counsel failed to call an expert witness, the Court provided no legal rationale at all. Rather, the Court merely cited Anderson v. Somberg, 158 N.J. Super. 384, 395 (App. Div. 1978), for the proposition, “the failure of a party to call an expert witness does not normally justify an adverse inference charge.” A similar analysis and result occurred in Bradford v. Kupper Associates, 283 N.J. Super. 556 (App. Div. 1995). While it ultimately reached the same result, which was relied upon in both McQuaid and Bradford, the Appellate Division in Anderson v. Somberg reiterated that the decision about whether to allow an adverse inference charge is discretionary. Further, the Appellate Division actually conducted a Clawans analysis to evaluate the trial court’s denial of the adverse inference charge. Thus, notwithstanding the Appellate Division’s holdings in McQuaid and Bradford, expert witnesses were treated no differently than fact witnesses in Anderson. The importance of this is twofold. First, the decisions in McQuaid and Bradford, which are often cited as support for the idea that expert witnesses should be accorded different treatment when it comes to adverse inference charges, represent a departure from previous case law. In this respect, the McQuaid/Bradford branch of the split in the Appellate Division is unsupported. Second, since Anderson actually supported the use of a Clawans analysis to determine the propriety of an adverse inference charge with respect to an uncalled expert, the Supreme Court of New Jersey, by denying certification, gave tacit approval to the proposition that expert witnesses were to be treated the same as fact witnesses for the purpose of determining whether an adverse inference charge was appropriate.

Expert witnesses are clearly available to testify for the party who retained and named them. Thus, the first Clawans requirement is not at issue when a defendant fails to call an expert in a medical malpractice trial. With respect to the second Clawans requirement, that a witness not be equally available to both parties, the inquiry of whether a witness is “equally available” goes to whether the testimony of the non-called witness would likely be as favorable to one party as the other. In examining whether a witness is “unavailable” in this context, courts look to the relationship of the witness to the parties and the nature of the testimony expected in light of previous statements by the witness. Hickman v. Pace, 82 N.J. Super. 483, 492 (App. Div. 1964). Therefore, the second requirement of Clawans is also not at issue when a defendant fails to call an expert in a medical malpractice trial, since the sum of the defense expert’s testimony is indisputably more favorable to the defense, and the expert’s relationship with the defendant belies the idea that the expert’s trial testimony will be neutral. Inevitably, when a party fails to call a retained expert in a medical malpractice case, the focal point of the argument between counsel and the court is whether the testimony of the missing expert is unimportant, cumulative or inferior to that already utilized with respect to facts to be proven. There are few reported adverse inference cases in New Jersey that provide thoughtful analysis to this issue. In fact, the most in-depth discussion of this particularClawans factor appeared in the Clawans decision itself.

The prosecutor argued that a non-called witness’ testimony would have been cumulative to the testimony of a witness who did testify. The Court observed, however, that although the testimony might have actually been identical, this did not necessarily mean that it was cumulative in the sense that it was unnecessarily redundant. The Court concluded that the testimony was better seen as corroborative under the circumstances of the case, because the facts at issue were disputed. Significantly, the Clawans Court examined the non-calling party’s position that this witness’ testimony would have been cumulative with a critical eye, and carefully scrutinized how all of the witnesses’ testimony fit together with the other evidence in the case to analyze whether it was cumulative in nature.

The Appellate Division has held that expert testimony is inherently superior and noncumulative in nature. In Genovese, supra, the Appellate Division concluded that an adverse inference charge would normally be appropriate when an expert witness is not called at trial because “opinion testimony would usually not be cumulative or inferior to other evidence.” Mirroring the situation in New Jersey, most decisions from other jurisdictions that have held that an adverse inference charge was not appropriate because an absent expert witness’ testimony would have been cumulative, fail to provide a detailed analysis supporting this conclusion.

The one case which closely examined a defendant’s factual contention that an expert’s testimony was cumulative, and so concluded, was Kersey v. Rush Trucking, Inc., 344 Ill. App. 3d 690 (III. App. 2 Dist. 2003). In Kersey, the plaintiff was killed when her vehicle was struck by a truck driven by the defendant. During trial, defense counsel advised the judge that he would not be calling an accident reconstruction expert he had previously named and produced for depositions. Defense counsel asserted that the testimony of his accident reconstruction expert was cumulative in nature, a proposition with which the trial court agreed.

The appellate court in Kersey examined the defendant’s claim that the uncalled witness’ testimony would have been cumulative with a critical eye. Specifically, the Kersey appellate court noted that while some of the points made by the defense expert mirrored concessions made by the plaintiff’s expert on cross-examination, there was deposition testimony by the defense expert to the effect that the defendant’s truck was traveling above the posted speed limit at the time of the accident. The Appellate Court concluded that because this aspect of the defense expert’s testimony supported the plaintiff’s theory that the defendant was speeding, and contradicted the sworn testimony of the defendant, the uncalled defense expert’s testimony was not cumulative in nature, and the adverse inference charge should have been given.

Attorneys should keep a record of the legal time and expenses expended preparing for and contending with defense expert opinions in medical malpractice cases. Accounting for the tremendous expenditures required to meet the opinions of defense experts throughout the course of a medical malpractice case renders a defendant’s position that an expert is being abandoned at trial solely to avoid expenses as hypocritical. The foregoing information should be included in a motion seeking an adverse inference charge, along with a statement of facts that highlight the important concessions made by a potentially absent expert.

When plaintiff’s experts are being prepared for trial, they should be fully apprised of the key concessions made by a potentially absent defense expert. At the time of trial, the plaintiff’s expert should be prepared to testify about how the jury’s findings on this key issue can undermine the defense and support the plaintiff’s case. Thus, this testimony will then be relied upon during trial to support the plaintiff’s position that the testimony of the absent witness is important, relates to a key fact at issue in the case and is “noncumulative.”

Applications for an adverse inference charge should be made as part of the R.4:25-7 mandated Pretrial Exchange of Information. By doing so, plaintiff’s counsel will alert the trial court to the defense’s decision to abandon its expert witness even before an analysis of the trial testimony lead to a conclusion that a witness’ testimony would only be cumulative in nature. Additionally, Clawans should be relied upon for the proposition that identical testimony is not always cumulative if it is corroborative of a key issue. Clawans, 38 N.J.at 173. Finally, the Illinois decision in Kersey v. Rush Trucking, Inc., supra should be cited as persuasive authority that the trial court must analyze the testimony of an absent expert in light of how it impacts all key issues in a case.

Medical Malpractice Trials: Winning The Morality Play in the Battle of the Experts

Trials involve a search for truth and a morality play.

During press conferences John Warner, Esq., lead counsel for Microsoft in the antitrust case United States v. Microsoft, criticized the trial approach of the United States lawyers because the government focused its attention during the trial on demonstrating inconsistencies in the evidence that were not (in his view) substantively important. Karen Donovan, V. Goliath: The Trials of David BoiesPantheon Books 2005), Kindle Electronic Edition: Chapter 9, Location 3138-3150. Ten years later, during a seminar at Harvard Law School United States v. Microsoft: 10 Years Later, (posted on YouTube), David Boies, Esq., lead counsel for the United States, responded to that criticism by indicating that every trial involves two things. First, a trial involves a “search for truth.” Second, a trial involves a “morality play.”

Mr. Boies pointed out that the search for truth in a complicated dispute can be difficult, complex, and ambiguous. Complicated disputes require juries to get into the details of difficult, specialized and esoteric issues. At the same time, the morality play that is part of a trial which is going on simultaneously with the presentation of data, plays out in a high level of generality. Morality plays drive you from the data to the dramatic. The drama involved in the morality play almost always concerns issues of credibility. Jurors are persuaded by data, but they are also persuaded by drama.

Boies believes that the more complex the issues in dispute are at trial, the more likely it will be that the result will come down to the morality play that takes place before the jury. There are several reasons for this. To begin with, people are not designed to make decisions solely in an objective fashion, it is not how we operate. Additionally, jurors are usually not schooled in the technical issues that are at stake in any given case. In fact, if they are, they are usually dismissed from juror service. Complicated issues of medicine or science are usually outside the scope of a juror’s everyday-experience. When a juror has to process information beyond his scope of knowledge and outside of his personal experience, he becomes more dependent on what he hears from witnesses and lawyers when charged with making a decision. At the same time, because he is less capable of deciding whether the evidence he is evaluating makes sense, issues of credibility, whether real or apparent, become magnified.

When complex medical issues are at stake in a trial, attorneys have to address not only to the details of the science to allow the jury to engage in its search for truth. Attention must also be paid to the morality play the jury is watching, so that any credibility questions in your position are dealt with and the credibility problems in the position of your adversary are exposed.

If you only utilize your direct and cross-examinations of medical witnesses to present evidence that goes to the medical issues in a case, you will be ignoring the morality play going on during the trial. This will put your client at a significant disadvantage because if you fail to attack the credibility of you adversary’s position, and you fail to anticipate attacks on your medical experts’ credibility, you risk losing a trial even if the weight of the medical evidence suggests that your position is more accurate.

Highlighttheimportanceofthemoralityplayattrialbyestablishingduringdiscoverythatthereareethicalrulesthatapplytoexperttestimony.

Insist on an expert’s curriculum vitae in discovery, because many professional societies which experts belong to have ethical requirements specifically related to expert testimony . Furthermore, even if an organization the an expert belongs to does not have ethical requirements specific to testimony, it will have broader ethical requirements that control the conduct of its members that are usually transferable to activities the witness engages in as an expert.

At their core, ethical requirements related to expert testimony almost universally require that experts conduct (a) a comprehensive analysis of the facts, (b) an objective analysis of the facts and (c) a review in accord with accepted principles of science. During the deposition of a defense expert, confirm that these ethical requirements exist, that they govern the expert’s activities in your case and that the expert’s compliance with these rules is mandatory. Additionally, establish that the expert agrees that in order to do his job fairly, these ethical requirements must be followed. Question the expert extensively about what these requirements mean. Ask questions that require the expert to provide examples of behavior that violate the rules. If you take the time to do these thing during the deposition of an expert who conducts a faulty analysis, at the time of trial you will be in a position to confirm that the expert’s opinions were based on an unethical analysis by using the expert’s own testimony against him.

Tobein apositiontoattackthecredibilityofanexpert’sposition, attempttodeterminewhethertheexperthasacredibilityproblembecauseofeither(a)hisfactualanalysisor(b)hismedicalorscientificanalysis. Usuallyexpert credibilityissuesariseinalitigationbecauseof(a).

If an expert is taking a position that is wrong, he is usually either (a) misrepresenting the facts of the case by ignoring, minimizing or overemphasizing evidence, or (b) misrepresenting the medicine by advocating medical science that is against the consensus of opinion. Medical experts do not usually misrepresent the science in a case. There are many reasons why. First, the majority of experts are not intellectually dishonest. Second, the prevailing consensus about an issue of medical science is usually set forth in writing either in published articles, textbooks or clinical practice guidelines. From a purely strategic point of view, it is not a good idea to for a medical expert to defend a litigation by taking a position that is contradicted by published documents which are relied on by colleagues to make medical treatment decisions. Third, if expert physicians are intellectually dishonest, over time they create a paper trail that sooner or later turns them into a liability, and lawyers stop using them.

Whenyou review theexpert’sopinionanddecidewhattheexperthasdonetocreatecredibilityissues, focusyourattentionindiscoveryonexposingtheseproblems.

To exploit an expert’s credibility problem stemming from a faulty factual analysis, you must establish at the outset of a deposition exactly what he reviewed prior to forming the opinions set forth in his report, and what facts the expert considered important to his analysis.

Make sure that you establish unequivocally at the outset of a deposition everything which was reviewed by an expert prior to the formation of the opinions set forth in his report. This is a prerequisite to exposing credibility problems because until you establish this baseline information, you will not be able to demonstrate that the expert ignored, minimized or overemphasized evidence. Do not merely confirm that a list of materials set forth at the beginning of an expert report is a complete accounting of what an expert reviewed. Establish that when the expert went through the trouble to list what he reviewed in his report, he attempted to be accurate and comprehensive. Confirm that when the expert prepares reports in other cases, he also lists the materials he reviews. This establishes that the process is not unique to your case, it is something he does as a matter of course when he acts as an expert in every litigation. Confirm that he tries to be careful when he lists what he reviewed in other cases too. Take the preparation of an expert report out of the realm of a single task and turn it into a mode of operation.

Establish that the expert did not intentionally leave materials off of his list because the materials were either (a) harmful to the litigation posture of the party who retained him or (b) helpful to the other side. Confirm that the expert did not do either (a) or (b), because this would be violating the rules governing how he should behave as an expert. Go beyond merely asking an expert if the list of materials in his expert report is accurate and ask all of these ancillary questions because it makes it harder for an expert to say later in the deposition (when you confront him with materials he failed to list) that it is possible he reviewed things he failed to mention inadvertently. Further, if the expert disregards his prior testimony on the subject and later indicates he reviewed something he failed to list, all of these other questions amplify the inconsistency between the expert’s report and his testimony.

Expert reports always contain a factual chronology. Establish at the expert’s deposition that when the expert prepares reports in other cases, he sets forth factual chronologies in those reports as well, and this process is not unique to your case. Confirm that the expert tried to be accurate when listing the facts in the chronology in his report, and he tries to be accurate in other cases when he does this. Establish that the expert did not leave out facts in the chronology that were either (a) harmful to the litigation posture of the party who retained him, or (b) helpful to the other side. Confirm that the expert did not do either (a) or (b) because this would be violating the rules governing how he should behave as an expert.

Confirm with the expert that the facts set forth in his chronology are facts which he believed were important. An expert will often resist committing to this position because he recognizes that you are attempting to wed him to his factual analysis, and he is aware it is not objective. If an expert resists admitting that the facts listed are ones he considered important to his analysis, ask enough additional questions about the factual chronology to turn the expert’s resistance itself into a credibility problem.

You can get usually get an expert to stop resisting the idea that he listed important facts in his chronology by attempting to establish the converse conclusion. Ask the expert whether the facts listed in the chronology of his report were unimportant. Ask the expert whether the facts in the report were selected in an arbitrary fashion. Ask the expert to identify those facts in the chronology that he thinks are unimportant to his analysis. Ask the expert to identify important facts he reviewed that are not in his chronology. Ask him if he can provide a single important fact that he failed to list in his chronology. Eventually, the expert will either concede the point, or he will look evasive.

Toexposecredibilityproblemsinherentinafaultyexpertanalysis, armyourselfwithdatafrom(a)previoussimilar analysesperformedbythesameexpertinandoutofthecontextoflitigation, (b)analysesperformedbyotherexpertsinvolvedintheparticularlitigation, or(c)analysessuggestedbyexpertsoutsidethescopeofthelitigationintheformofclinicalpracticeguidelinesorpublishedliterature.

There are certain things that you should do every time you begin your analysis of a defense expert’s position in a litigation. Always Google the expert’s name because you inevitably find information about the expert that is not listed in their curriculum vitae, which may lead to other sources of information that contradict the expert’s position in your case.

If available, you should also visit any website in your state to determine whether the doctor has been previously sued or professionally disciplined. If a doctor has been sued, attempt to obtain the details about the litigation so that you can secure all deposition or trial transcripts.

You should also visit TrialSmith to look for transcripts of past testimony. Experts who testify in specialized areas often confront similar fact patterns. Occasionally, an analysis performed by an expert in another case involving similar issues is inconsistent with the analysis performed in your litigation. Even if you do not find testimony that you can directly use to contradict a defense expert’s position in your case, you will often find other information in a deposition transcript relevant to the morality play at trial, including what literature the expert believes is authoritative and how much income an expert receives through providing expert services.

You should perform a PubMed search to make sure that an expert has provided a comprehensive list of articles which they have published on their curriculum vitae. Obtain articles authored by an expert that are pertinent to the subject matter of your case to determine whether the analyses performed by the expert in your litigation is consistent with the one performed by the doctor in an academic setting.

When an expert performs an inadequate analyses in a litigation, he is often practicing his profession in a way that he would not do in “the real world.” To expose the credibility issues that arise in these circumstances, do not merely establish during the deposition that the expert does something in “real life” that he did not do in your case. Establish why the expert does the thing he failed to do in your case when he is acting as a professional in the “real world.” This will (a) highlight the importance of the contradiction to the jury and (b) make it more difficult for the defense to downplay the importance of the contradiction.

For example, don’t merely ask the expert whether he looks at radiographic films in his medical practice when he failed to look at the films in your case, ask questions that establish the importance of the activity he neglected to perform as an expert: Why do you like to look at the films yourself when you send your patient for an MRI? When you are going to operate on a patient, is it a good idea to look at his films to get a better understanding of his injury and anatomy? Have you ever disagreed with a radiologist’s opinion? Similarly, if a medical expert is disregarding important facts, establish that when he is actually caring for a patient, he takes a careful history that investigates all of the pertinent facts including the mechanism of injury. If an expert is opining beyond the scope of his specialty, establish that when he is practicing medicine he refers the patient to a specialist.

Treating physicians who have opinions consistent with your expert’s conclusions can provide powerful evidence in the morality play at trial by bolstering the credibility of your experts. If an expert ignored, minimized or overemphasized evidence to be in a position to conduct a faulty factual analysis, their analysis will often be at odds with that performed by the patient’s doctors. It is important to place before the jury evidence that demonstrates that treating doctors, whose opinions were not merely the product of an academic exercise, but resulted in care or medication which had health consequences, disagreed with the other side’s expert and agreed with yours. Further, unlike experts, treating physicians usually form their opinions prior to litigation, “before the lawyers got involved.”

You may obtain many practice parameters from professional medical societies at no cost off of the internet. These are excellent tools to use against an expert who conducts a faulty analyses because they discuss the clinical importance of symptoms or findings. Further, the medical conclusions in these guidelines represent the consensus in the field. An expert who conducts an analyses at odds with a practice parameter of a medical organization which he is affiliated with will have a credibility problem by virtue of that fact alone. At the same time, practice parameters that are consistent with your expert’s opinions are an asset to your case in the morality play at trial because they are from an independent source, generated without reference to your particular litigation.

Google Scholar should be your first search source for medical literature, because many articles are provided free of charge.
Sometimes you will be able to read an article, but it cannot be printed. Other times, only an abstract of an article is provided. In these circumstances, if your review of the article indicates it is useful, you can purchase it from another source. Google Books provides online access to many medical textbooks.

PubMed is a comprehensive source for medical literature from periodicals. You may order any publication that is on PubMed through Loansome Doc . To do this, you register with an ordering medical library, which obtains articles you order either through its own collection, or through other medical libraries. You list the price you want to pay for the article and the deadline for delivery, and the articles are then emailed or faxed to you within the parameters you set. You are billed for the articles after they are delivered.

Conclusion

Jurors may not always completely understand complex medical issues but they are quick to pass judgment on any witness who provides incredible testimony. Jurors have little tolerance for anyone who gives inconsistent evidence after swearing to tell the truth. Attorneys must be cognizant of the morality play that goes on in front of a jury during a trial and prepare their cases in discovery with this process in mind.

Medical Malpractice Causing Traumatic Birth Injuries

There are a variety of injuries that can occur to a mother or a newborn because of medical malpractice during the birth process. Unfortunately, these injuries often cause lifelong disabilities requiring significant medical care. Common scenarios that we are often asked to investigate because of possible medical malpractice during labor and delivery include:

Secrecy surrounds almost all medical errors. Studies demonstrate that physicians rarely tell patients when consequential medical mistakes occur. This problem is magnified when a traumatic birth injury occurs because infants are unable to communicate and the extent of dysfunction caused by a birth injury can go undetected because children must develop before their ability to function (and functional deficits) can be evaluated. For these reasons, parents of children who suffer neurological deficits as a result of a traumatic labor and delivery often do not even consider consulting an attorney until years after these events occur.

In New Jersey, the statute of limitations for injuries occurring at birth is within 2 years of the plaintiff’s 18th birthday if the child was born before 2004. The statute of limitations was shortened by the Patients First Act, however, and now these cases have to be filed by the child’s 13th birthday if the child was born after 2004.

If you think you or your child might have been injured as a result of negligence that occurred during labor and delivery, click the links above to learn more and call us to discuss whether we can help you.

Latest Questions and Answers | NJ Medical Lawyer

QUESTION

My family and I were regular patients at a family practice doctor’s office. Then when I tried scheduling an appointment one day for one of my of children, they informed me that our doctor was no longer there. Confused, I demanded they tell me where she went. Because our doctor was the best, she delivered our children and has always been available to us. She gave me he cell number and beeper number if anything were to happen. So this was about 5 years of faithfulness care, until they day she disappeared. I got no letter in the mail stating they were going to send me to another doctor or anything. When they told me where she went, I called every branch and no one had even heard of my doctor. Would this be grounds for abandonment?

ANSWER

The short answer is no, this is not patient abandonment. That usually applies only when a patient was in need of urgent care, if it applies at all. The circumstances are certainly odd, but you should consider the possibility that the doctor may left the practice due to some significant personal or health issue. Doctors are people too, and sometimes they have to deal with unexpected life changing events too. Given the kind of care she provided in the past, she probably deserves the benefit of the doubt.

QUESTION

i have been treating for 5 years for thumb pain. My surgeon scheduled me for a right thumb fusion and was also going to ‘clear’ an entrapped nerve in my wrist. he cleared the nerve in the wrist, but omitted to ‘fix’ my thumb. he said he got distracted by my wrist and simply forgot the thumb. He tells me i will have to undergo the surgery again with fixation and 10 weeks of casting. After I have healed from this first surgery. I am concerned about my health insurance covering the second surgery and possible nerve damage to the hand due to repetitive procedures. I am unsure if I should continue treating with this doctor or what I should do next.

ANSWER

I give him points for being honest, but I would have reservations about going back to a doctor who subjected me to additional surgeries because he forgot what the plan for the operation was. Obviously, that is not legal advice, it’s a personal decision that you should make for yourself. Clearly the surgeon was negligent. For me, a second surgery alone would not serve as an adequate basis to file a medical malpractice case. If you have additional problems as a result of the delay or the second surgery, I might conclude that you have a financially viable case, it depends on the outcome. Appreciate that different attorneys have different standards about whether a case is financially viable, and someone may decide that making you go through a second surgery that should have been avoided is enough to warrant filing a lawsuit. The articles below spell out the issue of financial viability in more detail.

QUESTION

I had a Kidney Transplant in PA while I lived there in March the 7th 2012. All the follow-ups after the surgery were made in PA – Lehigh Valley Hospital – Allentown. Until the last test the Doctors said everything is going good. I moved to MA and at the first follow-up @ Mass General Hospital in Boston I was diagnosed with a severe rejection of my body to the kidney. I want to add that my wife was the kidney donor. After treatment in Boston my Kidney is working only @ 40% of its capacity. The Doctors said I can live a short time with the kidney working like that. .I have to go back to hemodialysis and enter a waiting list to get another kidney. I’m 57 years old and my wife gave me a kidney for us to continue our lives normal. As a result of that I’m disabled right now and we lost our house in PA. We have no income and living with our daughter in MA. The doctors in Boston explained that the kidney was damaged because of a non-adequate treatment for the problem. Is there a case?

ANSWER

It is difficult to tell you how strong a case you have, but if the doctors in Boston are telling you that something wasn’t on that should’ve been done in this caused your body to reject the kidney, it sounds like you have a case worth investigating given the stakes involved. If you want to investigate a malpractice case you should contact a medical malpractice attorney in Pennsylvania. Malpractice attorneys take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. If you want further suggestions about an attorney, you may email me directly.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

I was prescribed the wrong medicine at the emergency room.

ANSWER

Medication errors are very common. Whether an attorney will investigate a medical malpractice case as a result of a medication error caused lasting harm for the patient. Many times a patient will suffer minor harm from a medication mistake because they quickly notice something is amiss when they experience side effects from the medicine, and stop taking it and contact their health care provider, and the mistake is uncovered.

If you suffer lasting harm from a medication error, and you want to investigate a medical malpractice case you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Is a known misplaced feeding tube, i.e. in the lung, medical negligence? My Mother had suffered a stroke and is on a ventilator and a feeding tube. For the past two days, my mother was having difficulty breathing and they had reported to my sister that she had a collapsed lung however when they looked at the x-ray, they reported to my sister that they saw nothing. My sister, who has power of attorney, asked to have her moved to the main hospital from the rehab hospital she was at. They told my sister that the transfer would happen, however upon my sisters departure, 2 doctors cancelled the request. My sister had to return to the rehab hospital to enforce the request. Upon my mother’s arrival at the main hospital, she coded twice. In addition to that, they had to remove more than a days’ worth of food because the feeding tube was in her lungs. She is now in critical care, and they are not sure if she will make it. She is very sick, but we were hoping that she was making progress and this setback could have been avoided.

ANSWER

Perforation of the esophagus while inserting a feeding tube is not negligence, but failure to follow protocols to make sure that the feeding tube was inserted correctly before nutrients are pumped into body is. Under the circumstances, you may have a medical malpractice case worth investigating. If your mother was elderly and had other underlying medical issues that impacted her life, there will be questions about whether the case is financially viable. Articles below spell this out in more detail.

You should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Unnecessary medical procedure?

More Details: Approximately 5 yrs ago, I was diagnosed with PSVD (Paroxysmal supraventricular tachycardia). I was put on a medication called Sotalol. I still continued to have episodes of psvd. The cardiologist had run a series of tests on me to determine this diagnosis ( ECG, stress test, etc). We moved out of state 2 yrs after this and I started seeing a new cardiologist. He also received my patient file from the former cardiologist. The new doctor only ran a ECG test when I visited. I continued to take the Sotalol. The new doctor started to push an Ablation surgery on me. I waited 2 1/2 yrs and finally gave in. I went in for the procedure, and the new doctor had to stop the procedure because I didn’t have PSVD! Turns out I have Atrial fibrillation. He saw this while trying to invoke the psvd in order to perform the ablation. So, Atrial fibrillation could have been easily found by the new doctor, even the old doctor, with simple testing. Now, new meds and new hospital bills. A case??

ANSWER

I do not think it is foregone conclusion that the first doctor’s diagnosis was wrong. You should ask your new cardiologist whether PSVD could have converted to atrial fibrillation over time. In any event, in the absence of an event causing permanent harm (for example, a stroke) I do not think you have a financially viable case. The articles below discuss this in more detail.

QUESTION

My son went to an Urgent care in Florida for an earache. While cleaning his ear they punctured his eardrum. More Details: Two people came in ,one a nurse the other wasn’t. The one doing the ear cleaning was being told by the nurse how to do it. The nurse had asked the other one if she ever did this before and she said yes once. During the process my sons eardrum was perforated causing tremendous pain. They rushed and got the doctor who said “I see blood” . The office manager was called in and we were told that the visit will be free and told us they would give us free eardrops ( which cost 100.00) and were told to go pick them up at another Urgent care. He was also given a prescription for painkillers. It has been 3 days and my son is still in terrible pain .He can’t bend down without getting very dizzy and nauseous or blow his nose because the pain is so severe.

ANSWER

It sounds like your son received negligent care, the question will be whether the case is financially viable. Perforated ear drums can heal in days, weeks or months. Usually there is no residual hearing loss. Complications along the way can make the prognosis poorer. If your son’s eardrum goes on to heal without any complications in a relatively short period of time, I think you probably do not have a financially viable case. Articles below explain this in more detail.

If you want to investigate a case further, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Can I sue a hospital for treating me badly and causing me an anxiety attack?

More Details: About one week ago I had a friend drive me to Bellvue Hospital in NYC because I ran out of my prescribed depressions and anxiety medication and started to feel ill and mentally unsound. The Walk In Center was closed because it was Sunday morning, so they sent me to the PSYCH center and after waiting two hours in a waiting room filled with 5 suited police officers, two criminals hand cuffed to the chairs, and visual contact of the robbed mental patients in a secluded room with walls of glass a doctor came up to me and leaned over to announce, “If you are here to get PILLS like Xanax and Aderall, don’t waste your time because we don’t hand out controlled substances like that. If you want to wait to see a doctor it will be another few hours. SO it’s up to you.” Walked away. He never bothered to inquire the reason I was there. One of the prisoners freaked out because they wouldn’t let him use restroom and it scared me and other patient. I left within hour, never saw a doctor, & anxiety attack.

ANSWER

You do not have a financially viable malpractice case because the incident did not cause you permanent damage. The articles below spell this out in more detail. You might consider reporting the hospital to the department of health if you feel strongly that you were treated inappropriately. Click here for the website to do this.

QUESTION

Can I sue a doctor for Medical Negligence that led to death after 2 years? More Details: My husband was being treated by a doctor who prescribed him an inordinate amount of pain medication for a unknown diagnosis. This led to his subsequent addiction and death. Can I seek to sue his primary doctor for negligence? We live in NJ and he passed on Nov 2010

ANSWER

The statute of limitations on a wrongful death case in New Jersey is two years from the date of death, so your cause of action is probably time barred.

QUESTION

Can I sue a hospital for serious complications from improper hip surgery? More Details: Required corrective surgery scheduled this October. Wrong angle of hip implant causing balance issues, swelling, pain, waddling, falls, and spine compression. Please help.

ANSWER

Hip replacement surgery that causes a significant leg length discrepancy can be medical malpractice. To know for sure, an attorney will have to review the pertinent medical records and submit your x-rays to an expert.

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts, ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Back in 2/12 I was having problems with my right shoulder. After Pain med and physical therapy and shots, I was sent to see another Dr. where he order MRI, X-rays, and another shots. MRI showed that I had a tare of the rotor cuff. Surgery was order and in October 2012 I had surgery to fix the problem. After surgery I was told no tare was found. (even the MRI showed it). Said he found some spurs and cut some of my bone. I complained that I was still in pain. And was told it take time to heal.. After no real improvement I went to my regular doctor who ordered more therapy. This did not help so I was sent to another dr. Were we did another MRI and found the same tare. So on July 9 2013 I had surgery to fix the problems. The tare was significant, plus he found scare tissue.. from 1st surgery. I would like to go after the 1st doctor. Do I have any chance of going after him.

ANSWER

With a positive MRI before and after the surgery, it sounds like you have a pretty solid malpractice claim. The question will be whether the case is financially viable. If the subsequent surgery corrected the problem, you may not have sufficient damages to warrant the time and expense of a malpractice case. The articles below explain this concept in further detail.

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts, ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

If I had a surgery and the outcome the doctor said would happen did not happen and the area where the surgery was done turned out to be worse, can I sue?

ANSWER

It is impossible to answer your question given the absence of detail. A surgical outcome that does not achieve it’s goals is not necessarily negligence. Generally speaking, a bigger disparity between goal and outcome justifies a higher index of suspicion, but there are exceptions to this rule.

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts, ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Should I consult a lawyer?

More Details: I had two surgeries and am still in pain and cannot work. The surgeon left the state with no warning and I can’t find him. I’m afraid he may have done wrong by me. I’ve seen one doctor since, but unless I go far from my home all doctor’s seem to be connected to him in some way. I tried one doctor recently and he turned out to be the doctor who assisted my surgeon because (in my surgeon’s words) “I’m was uncomfortable performing it”. Unfortunately, he couldn’t or wouldn’t help me and kept contradicting himself. I think he was lying to me and trying to get rid of me. His final answer was I have whiplash and I should see a neurologist? Where do I go from here to find out if he truly did something wrong? Should I get an attorney to look at everything? and if so do I use one in the state that the doctor practiced (NJ) in or my state that I live (PA)?

ANSWER

It is hard to answer your question because you do not provide sufficient details. I assume you had cervical spine surgery and you are not satisfied with the outcome. If you are not getting straight answers to your questions then you have reason to be suspicious. Click the articles below for more information about this.

If you want to investigate a case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Did my doctor act inappropriately? More Details: I went to this Dr. after being in an auto accident. On a couple of visits he started to exam my back while I was standing. He would then press his body to the back of mine and press my abdomen. I thought it was odd, but went back. On another visit he did this again, however this time I felt him get an erection. When I stepped away, you could see his erection through his scrubs. I felt very violated. I wouldn’t go back without someone with me. There was no nurses in the room on any visits.

ANSWER

Yes, he obviously acted inappropriately. You should consider filing a complaint against him because you are probably not the first victim of this behavior. Click here for information about how to do this.

QUESTION

Does this rise to the level of medical malpractice? More Details: Diagnosed with avascular necrosis of the left hip in 2006 which required bone graft and decompression surgery. Warned to watch for the same in the right hip. 2011 diagnosed with stress fractures of the right hip. Advised surgeon of the avascular necrosis in left hip and asked if it was possible. Emergency surgery performed next day inserting a rod . 6 months later hip had to be replaced due to avascular necrosis and metal rod placed in hip previously.

ANSWER

If you had a history of avascular necrosis, the doctor performing the surgery was aware of this but failed to fully investigate it and the hip replacement failed because of preexisting avascular necrosis, it sounds like the doctor was negligent. The question will be whether the case is financially viable given the fact that another surgery will seek to remedy these problems. The articles below explain the concept of financial viability in more detail.

You should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

What made me have a stroke? More Details: 4 months ago i developed a very bad headache that would not go away and was extremely painful and debilitating. After 2 days ,i went to the hospital, was tested for this and that, but no cause was found. I was sent home with medication, but it wasn’t helping. I went to another hospital, where they performed more tests, again no conclusion. The neurologist I was seeing recommended a DHE treatment, saying it was a strong drug treatment and must be performed in the hospital. During the treatment, my blood pressure dropped dramatically, and i had a stroke, parilyzing me on the left side.I have been recovering from that, but still have my headache. Who is to blame?

ANSWER

Good Morning.

Even if DHE is administered correctly it can cause decreased blood pressure to the extremities and brain, causing a stroke. Nevertheless, there are certain protocols that can be followed to decrease this risk (including the simultaneous administration of Benadryl). Beyond this, if patients are simultaneously taking other medication, DHE should not be administered because the risk of stroke is more significant. Quick research suggests that if you are on certain antibiotics, HIV protease inhibitors and some antidepressants, DHE should be avoided.

I am on vacation at the beach with my family until next Monday. If you have additional questions or would like to discuss this further, I can contact you when I return. In the meantime, the articles below will provide you with some basic background information about medical malpractice litigation.

QUESTION

Do i have a case if the doctor operated on foot nerves and now I have nonrepairable nerve damage? More Details: the doctor first gave the reason for the need of surgery because a nerve had been nicked during a bone-spur removal, after the surgery on follow-up visits he said the surgery was to repair what he explained as carpal-tunnel in my foot. Now he has refused to see me any longer and 2 separate foot dr.s have said the surgery was wrong. Do I have a malpractice suit? The day of the surgery the doctor gave me prescriptions that the pharmacy said were filled out improperly and couldn’t fill them, returned to the hospital to get pain relief when the doctor could not be reached. The hospital did not want to treat or recognize the doctors name. now I have been told I have permanent nerve damage.

ANSWER

Without specific information, I cannot tell you whether you have a viable malpractice case. If everything you say is true, then it sounds like you do. At the very least you have reason to be suspicious.

You should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Can I sue the dentist for filling the wrong tooth? More Details: I had my remaining filling fell out of a tooth, causing me much pain. Dentist will look at it and decide the on called person that sets the appointment says. the dentist did nothing to that tooth. But he drilled a whole in the tooth behind that tooth and filled it. It caused a lot of pain that he had to give me and extra dose of anesthetic. after he was finished and left i asked the assistant what did he do the hole is still there. she stated he filled the one behind it. I stated i wasn’t aware that it needed fixing. when he came i asked as to why nothing is done to the hole — he stated remember we spoke of taking it out and putting in a replacement. i said yes but i cannot do replacement with all the stuff going on. he said well he doesn’t recommend taking it out til we are able to do replacement– he then put a temporary filling in it and send me on my way. clearly saying nothing about the fact that he just drilled a hole in a tooth that doesn’t filling.

ANSWER

Dental malpractice cases are difficult to prosecute for a malpractice attorney because they are usually not financially viable. Medical malpractice cases are very costly and time-consuming. Therefore, in most circumstances a patient must have suffered a significant permanent injury as a result of medical negligence for the case to be financially viable. Often, damage caused by dental malpractice can be remedied with additional care. Further, lasting damage is usually not significant enough to warrant the time and expense of a lawsuit. There are exceptions to this (for example trigeminal nerve injury cases). Additionally, since different offices have different standards for whether a case is worth prosecuting, if you are interested in pursuing this further you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Sometimes, you can find an attorney who specializes in dental malpractice cases. Do a Google search or use this website to find someone in your state who can help you. Because some attorneys specialize in one particular area, they are more “geared up” and can prosecute these cases more efficiently.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Do I have a potential medical malpractice case? More Details: my mom had bypass surgery in March 2013. during the surgery the doctor opted to put a balloon pump catheter into her iliac artery. Upon removal of the pump, her artery was torn and she hemorrhaged and went into cardiac arrest. Fortunately she was resuscitated but they had to do a second emergency exploratory surgery in the right groin area where she was cut from one end of her groin to the other to repair the torn artery. However, she suffered multiple injuries post surgery such as: brachial plexopathy, retroperitoneal hematoma, acute kidney injury (failure),postoperative complications with thrombocytopenia, postoperative encephalopathy to name a few. She is having a difficult recovery. She has trouble with her right hand and cannot walk without a walker and she has disabling pain in her legs. Her life has changed dramatically. she has just turned 70 years old. her financial means are very limited and she is having trouble affording her heart medication. This is all documented.

ANSWER

It certainly sounds like your mom received negligent care. Given your mother’s age, however, you are probably going to have a hard time finding an attorney to take the case on, because her limited life expectancy impacts the financial viability of the case. The linked articles below explain this in more detail.

Attorneys employ different standards when determining when to undertake a malpractice case. One firm may conclude that a case is not profitable enough, while another might reach a different conclusion. If you want to pursue a case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

On 02/27/13 I visited Long Beach Memorial Hospital for lower back pain due to pregnancy. I was told by the ER physician I would receive pain killers, as well as antibiotics for a UTI and a yeast Infection. Before getting discharged, the nurse brought my discharge papers and asked me to sign. As I reviewed the papers I realized this was for another patient with a similar year of birth but different condition. I believe this girl received mine while I received hers. Either way when I noticed the prescription wasn’t related to my diagnosis, I told the nurse and quickly took the papers away. I was later told by my gynecologist that the prescription given to me was extremely high for my condition. I was given 500ml pills when I should have been taking 20 ml for a UTI. She was surprised anyone would prescribe those to me and suggested I stop taking them. On 03/06/13 I miscarried. My Obgyn suggested the pills might have been too strong and that could of caused my miscarriage.

ANSWER

Without knowing more details, I can’t tell you whether I think you have a malpractice case worth investigating, but if your OBGYN suggested that the outcome was caused by the miscommunication related to the antibiotics, then it is certainly possible that you received substandard care that impacted the outcome of your pregnancy.

Cases involving a loss of a fetus are difficult to prosecute because the damages are hard to quantify, especially if mom and dad are capable of having children after the event. I appreciate that what you have gone through is a big deal emotionally, but malpractice cases are damages driven. Personally, my firm has investigated several of these cases, but we have never filed suit.

If you want to investigate a case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Should I sue the hospital? More Details: I went to Columbus community hospital with a small laceration for a glass bowl I broke with my elbow they stitched me up and sent me home I told them my hand was tingly and had no movement I went to work for 2 12 hr shifts then 3 days after I visited the hospital I went to my family doctor and he sent me to a specialist they both told me I probably cut my ulna nerve I then went to Omaha ne and say a hand and elbow specialist 5 days after my hospital visit and was told I was being sent into emergency surgery to repair my nerve after my surgery I learned I cut my ulna nerve 50% and cut another nerve and while they were repairing it they found more glass that the hospital never attempted to clean out I later went back and talked to the hospital and they covered the first bill however I still have to pay for the surgery and have been off work for almost 2 months now and will be for awhile longer I was wondering if I had a chance to receive pay for the work I have missed due to misdiagnoses

ANSWER

It is hard to tell you whether you have a medical malpractice case without looking at the records. Assuming the doctors in the ER negligently failed to diagnose lacerated nerves, however, the question will be what harm was caused by the delay in diagnosis. An extra hospital bill is not the foundation of a financially viable malpractice case. The idea is that you would have required the surgery if the nerve damage was timely diagnosed anyway. The articles below spell out the financially viable concept in more detail.

If you suffer from permanent problems as a result of the delay in diagnosis, and you want to investigate a medical malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

I had symptoms of a retinal tear and was told there was nothing wrong a week later my retina detached now had to have surgery. More Details: I was having flashing light and seeing a dark spot on lower area of my right eye. I went to the ER concerned it may be retinal related, ER sent to me to Ophthalmologist who misdiagnosed me telling me nothing was wrong that my eyes were dry and older people sometimes have the my condition tells have the natural gel leak a little and causes the flashing. Now a week later my retina detached and had to have surgery, the surgeon I was referred to told me if had seen him first the surgery would have been prevented.

ANSWER

Flashing lights are not a symptom you would associate with a retinal detachment, it is a symptom of vitreous detachment. A dark spot in your field of vision could be a sign of a retinal detachment, or it could be a floater caused by vitreous detachment. If the area where you lost vision was static and it did not move, it is possible that your ophthalmologist failed to diagnose a retinal detachment. To know for sure, a lawyer would have to get the medical records and review them.

A different but relevant question is what damages were caused by a delay in diagnosis. If the dark spot in your vision was caused by a retinal detachment, I don’t see how you could have avoided a surgery to fix it (contrary to the representations of the surgeon). If the surgeon told you that because he thinks that you were suffering from a retinal tear that could have been fixed, that may or may not be correct because prophylactic cryopexy to prevent a retinal detachment works over time, but initially actually can increase the risk of retinal detachment until the treatment has an opportunity to set.

If you suffer from permanent problems as a result of the delay in diagnosis, and you want to investigate a medical malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Is this malpractice? More Details: Doctor told me I had a broken ankle on June 25th, sent for an MRI on July 1st, after several phone calls for results to Doctors office I finally get a call back from Doc to tell me my ankle is broken in 2 places and ligaments are torn, he said he needs to see me next day due to severity of injury, I go to office next day with my MRI films as he requested and he is not there, I call him and he denies saying I should come in, I have an appointment tonight, July 16th with him ….. the timeline for this injury is ridiculous, I looked at my ankle and x-rayed back on June 25th …. why did that not show the second break, a three week gap between visits fir this injury does not seem right, I am in agony, is this malpractice?

ANSWER

I would not stay with a doctor who is so unorganized that it takes three weeks to get a definitive diagnosis of an acute orthopedic injury. Medical practices like that are just minefields for malpractice. Hopefully you will get a definitive diagnosis and additional care will take care of all of your problems. If you are left with permanent problems as a result of the delay in diagnosis and treatment, you may have a malpractice case worth investigating.

If after dealing with your medical problems you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

Can I still sue for medical malpractice? More Details: I had a surgery almost 2 years ago on my right hand and developed Complex Regional Pain Syndrome, my hand still stiff and unable to fully use. Lost my job and medical insurance.

ANSWER

Complex regional pain syndrome can occur in the absence of negligence.

Click here for a website that provides a rough estimate of the statute of limitations in all 50 states for common causes of action. Note that this website advises that these limitations periods are merely rough estimates. You should contact a local attorney (one in your state) who can tell you whether these estimates are correct.

In medical malpractice cases, circumstances sometimes justify allowing cases to be filed after the statute of limitations expired. For example, if a surgeon leaves behind an instrument during a surgery and a patient only discovers the foreign object after the limitations period has expired, most states have a common law exception to the statute of limitations that would allow a plaintiff to file a lawsuit that would otherwise be out of time. Finally, statutes of limitations usually incorporate exceptions that extend the limitations period for minors and people who are incapacitated.

If you think that you may have a viable malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts.

QUESTION

I was diagnosed with paralyzed vocal cords in 12/2007. The Dr. wrote in my file notes but did not refer me or mention it to me. In 12/2012 it was diagnosed by another Dr. and treated. I was on medicine that was not needed for 5 years. I had a diminished quality of life by having a compromised airway until diagnosis in 2012 and a tracheostomy was performed. The statute of limitations is 2 years and statute of repose is 5 years. Do I have any recourse?

ANSWER

The short answer is contact an medical malpractice attorney in GA and run the question by him. Generally speaking, equitable exceptions to statutes of limitations exist in case law but not in a statute of repose. A common equitable exception in medical malpractice cases is the discovery rule, which holds that the statute does not start tolling on a claim until a client knew, or should have known that a doctor did something wrong. I don’t know if GA’s statute of repose would allow for such an exception. My gut tells me it would not, but ask a local guy who knows for sure.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

QUESTION

My husband had a break in his spine from the L5 to S1. The surgeon scheduled surgery and cut him open and saw he had the wrong size screws. More Details: My husband had a break in his spine from the L5 to S1. The surgeon scheduled surgery and cut him open and saw he had the wrong size screws. He closed him up and ordered the right parts and rescheduled the surgery for the next month. Is this malpractice?

ANSWER

It depends on why he had the wrong sized screws. It possible that he had the wrong sized screws but that he could not make that call until he was actually in the operative field. If that is the case, then he did the right thing by stopping the procedure and rescheduling. If he should have done something prior to the operation to make sure that he had the right sized screws, then it’s possible you have a malpractice case, but a one month delay and the need for a second surgery probably do not serve as a foundation for a financially viable medical malpractice case.

If you want to investigate a malpractice case, you should contact a local medical malpractice attorney (one in your state). They take these cases on a contingency basis which means you only have to pay if you succeed. Additionally, initial consultations are usually free. You can use the “Find a Lawyer” service through this website to research medical malpractice attorneys. Then, visit each attorney’s website and look for a firm that has a record of successful verdicts, ideally with experience in cases that involve your medical issue. If you are unable to find a lawyer who meets these qualifications within your state, sometimes you may contact an out of state lawyer who can refer you to a qualified attorney in your state while providing support related to the issues of medicine.

Below are some articles you may find helpful. They are written for a New Jersey audience (where I practice) but the ideas discussed in these articles usually apply in most other jurisdictions as well.

Jury Enters Verdict Against Interventional Radiologist for $1.2 Million Dollars Following Negligent Stenting Procedure

The jury found that the defendant, an interventional radiologist, had negligently performed the bilateral iliac stenting procedure at a Morris County hospital on November 14, 1995 The plaintiff had previously undergone a diagnostic arteriogram for evaluation of left lower extremity ischemia, or loss of blood flow, the same day. This demonstrated an irregular moderately severe left common iliac artery stenosis, a left superficial femoral artery occlusion, as well as a moderate right common iliac artery stenosis.

As a result, it was decided by the interventional radiologist that the plaintiff required placement of arterial stents at the level of the bilateral stenoses to improve or reestablish blood flow. Arterial sheaths were then advanced beyond the stenoses. Bilateral balloon expandable stents were then advanced within the sheaths to the level of the stenosis, in what is known as a “kissing balloon” technique. This is a procedure designed to expand both of the iliac arteries at the same time, to avoid having arteriosclerotic plaque pushed over to one side or the other, thereby causing other complications. Without adequately pulling back the sheaths, both balloons were expanded within the sheaths, resulting in a stretching of the sheaths and an immediate obstruction of the blood flow to both lower extremities. This then required emergency aortobifemoral bypass surgery and stent removal by a vascular surgeon.

The emergency surgery required extensive incisions along both femoral arteries and a 29 cm. abdominal incision to below the umbilicus, in order to remove the obstructing stents. Further, to re-establish blood flow, it was necessary for the vascular surgeon to perform a graft from the aorta to the femoral arteries using an artificial Dacron graft.

As a result of the emergency surgery, the plaintiff was required to remain hospitalized for twelve days, with numerous complications, which would not have occurred had the angioplasty/stenting procedure been performed properly as a same day outpatient procedure.

Further, while the plaintiff remained in the hospital, he developed a hospital-borne infection, known as a methycillin resistant staph abscess (MRSA) in his left foot. The infected foot resulted in a substantial loss of tissue, later fractures of the heel from osteomyelitis, (an infection of the bone) all of which required extensive plastic surgery and reconstruction. Ultimately, a large free flap of muscle from the abdomen was grafted onto his foot in order to revascularize the foot, fight off the osteomyelitis infection, and allow it to heal. The free flap graft was covered with split thickness skin grafts obtained from his right thigh and covered the open wound of the left foot. As a result of the deformities to the left lower extremity, the plaintiff became totally disabled from his employment.

The matter was tried over a four week period, and for 18 trial days.

The plaintiff’s were represented by Amos Gern, Esq. and John J. Ratkowitz, Esq.

Ironworker Suffering Multiple Comminuted Fractures of the Spine Settles Case at Mediation

The plaintiff was a journeyman ironworker performing steel connection work on a warehouse being erected in Monmouth Junction, New Jersey. The plaintiff’s employer hired a crane operator, to provide cranes and a crane operator to lift the steel to the location where the ironworkers were erecting the warehouse. On the afternoon of the accident, the plaintiff was working with another ironworker, connecting steel bar joists to the bay structure of the warehouse. A steel bar joist was delivered by the crane operator in a sudden manner, without warning, without the customary hand signals from the ironworkers, and at a high rate of speed angled directly at the plaintiff, who was not tied off in any manner. While attempting to deflect the joist, the plaintiff’s work glove became caught and he was pulled off the structure. There was no fall protection in place for the ironworkers at the site, and the plaintiff fell 45 feet to the ground below sustaining multiple comminuted spinal fractures.

At the time of his accident, the plaintiff was a member of a three man connecting team that included his cousin, and a relative of his employer’s owner. The three man team was responsible for landing and connecting steel bar joists that were delivered by the crane operator, with two of the ironworkers connecting the joist and one applying an x-brace in the middle of the joist connecting it to the other joists.

Plaintiff alleged that neither he nor his connecting partner ever signaled for the crane operator to deliver the joist that pulled him off the steel. This testimony was supported by plaintiff’s connecting partner, and both of them maintained that the crane operator had repeatedly failed to follow hand signals on other occasions. While the crane operator maintained that he was given the hand signals, and that the method of his delivery was appropriate, he had no specific recollection of the angle and movement of the joist, and did confirm that the plaintiff’s glove got caught on the joist that he was delivering.

At the time of the accident, the general contractor and the subcontractor all failed to provide proper fall protection in compliance with OSHA requirements. No static lines or other means were provided to tie off a body harness-tether while the ironworkers were up on the steel. Further, no safety nets were installed. The sole means of fall protection in place for ironworkers at the site was the use of manlifts, which were inadequate in number and not properly maintained. Although the ironworkers were customarily brought up to the steel structure by the use of manlifts, these devices were not left in place to allow the ironworkers to work from an attached basket so as to permit them to tie off with a body harness-tether device as fall protection. The manlifts were further impeded by wet and uneven ground conditions which made it difficult to properly locate the devices and caused them to get stuck in the mud. Due to the inadequacy of the fall protection system in place, ironworkers were routinely permitted to stand on the steel to make connections while not protected from falls in any manner. In fact, they were actually encouraged to wear full body harnesses, without tether straps and without a means of tying off, to give the appearance that they had fall protection, in the event OSHA inspectors came to the construction site.

The superintendent and project manager for the general contractor had a trailer office approximately 300 yards from the site of plaintiff’s fall. They allegedly walked the site on a regular basis, yet failed to monitor the fall protection and safety at the job site, instead deferring to plaintiff’s employer.

After plaintiff sustained his injury and was brought by ambulance to Robert Wood Johnson University Hospital in New Brunswick, an alcohol test specimen was collected and revealed a post-accident blood serum alcohol concentration of .054%. This is the equivalent of a blood alcohol concentration of approximately .045%. It was determined that plaintiff had consumed beer over lunch, and his fall took place approximately two hours after lunch. Blood alcohol experts were retained by both the plaintiff and defendants, who each concluded that plaintiff’s blood alcohol concentration at the time of the fall was between .05 and .07%, and that the beer consumption would have been approximately 48 ounces during the lunch period. While the experts agreed that in controlled laboratory settings, impairment can begin at .04%, plaintiff’s expert relied on the descending blood alcohol concentration to conclude that this was a late stage absorption. Further, it was undisputed that the plaintiff was an experienced and accomplished ironworker and had demonstrated no physical impairments prior to the accident while in the process of landing and connecting many other bar joists. He demonstrated no unusual behavior indicative of impairment, and plaintiff’s expert viewed his impairment as subtle and disagreed with a conclusion that the risk of an accident was substantially increased at .05% BAC.

Plaintiff had landed on his back in deep mud. He remained conscious, in severe lower back pain and was having trouble breathing. Emergency CT scans and x-rays revealed several comminuted fractures in the thoracic and lumbar spine. Surgery was not performed until the following day at which time a straight incision was made in his back from T6 in the thoracic spine through L4 in the lumbar spine which was hooked off over the right ilium for bone harvesting. Plaintiff sustained a burst fracture at the L1 lumbar vertebra with spinal canal compromise and an additional anterior compression wedge fracture at T10 in the thoracic spine. A thoracolumbar reduction of fractures with pedicle screws and hook instrumentation was made from T9 to L2, together with an arthrodesis from T11 to L2 using rods. The spinal canal was compromised because of retropulsion of bone into the canal, and there were numerous fractures of the transverse processes. The surgical procedure took 10 hours and the plaintiff lost four liters of blood limiting the surgery. While at Robert Wood Johnson, for the next ten days, he contracted a facial infection with painful cold sores and suffered a mild left lower lobe pneumonia. From Robert Wood Johnson, he was taken directly to Kessler Institute for Rehabilitation in West Orange, where he remained for several weeks. Over the course of the next year, the plaintiff progressed from a wheelchair to a rolling walker, to the use of a cane, and was required to wear a full molded back brace to restrict movement in the spine. Ultimately, lumbar range of motion plateaued at 50% and lifting restrictions at 25 lbs.

Having determined that he could no longer work as an ironworker, or in any other physically active job, plaintiff returned to college, and obtained a BA as an English major and secured a full time position as an English teacher.

Ironworker Settles Case for $400,000 Plus Negation of $100,000 Workers Compensation Lien After Closing Arguments During Trial in Morris County, New Jersey.

On December 10, 2007, at approximately 8:30 am, the plaintiff, a resident of Florham Park, New Jersey, was working as an iron worker at a construction project known as the “New York Jets Training Facility.” He was assigned the task of disassembling guy wires. On that day it was overcast and cold. There was some decking located over the concrete slab on which the plaintiff was working, but the building was still exposed to the elements in some areas. At approximately 8:30 am, the plaintiff was walking to the next column where he was to disassemble the guy wire. He did not see ice or water on the concrete slab where he was working. Nevertheless, he stepped into a spot of muddy water that contained ice, and his feet slipped out from under him, causing him to land on his buttocks. The plaintiff injured his lower back in the fall. He ultimately underwent two spinal surgeries and he was eventually declared completely disabled by Social Security. Only 47-years-old, the plaintiff could no longer work.

It was undisputed in the case that the General Contractor had an obligation to remove water accumulation and ice from the area where the ironworkers were erecting steel. The defense took the position that the accident was the plaintiff’s fault, because he failed to advise the general contractor of the ice hazard the morning of the accident.

Once a jury was empanelled, the trial went very quickly. Although the defendant retained a medical expert to argue that the plaintiff’s injuries were unrelated to the accident, after I deposed that doctor, the general contractor elected not to call him as an expert at the time of trial.

The defense did call an employability expert who testified that the plaintiff could have found gainful employment in a different field. Nevertheless, because the defense did not call a medical expert, her testimony had no foundation. Despite this, instead of barring her testimony, I allowed her to take the stand because her opinions were so suspect that I believed after cross-examination, she would do more harm to the defense’s case than good.

In the end, with no possibility of future employment, the plaintiff elected to settle the case because he calculated that his net settlement recovery combined with his retirement benefits would be sufficient to allow him to live comfortably in Florida, and he was not willing to risk losing that opportunity for the possibility of making out better with a jury verdict. Although I would have liked the case to go to the jury, it is always the client’s decision about whether to resolve a case.

Following the settlement, the trial judge allowed both attorneys to speak with the jury. As predicted, they found the defense’s employability expert incredible, and based on our conversation with the jury, I concluded that if the case went to verdict, we would have secured substantially more than what the plaintiff settled for.

I tried the case in Morris County, New Jersey with my partner, Amos Gern.

The case was tried between February 4, 2013 and February 13, 2013.

Information I Need to Prepare for our Initial Meeting

If after speaking with you I conclude that you have a potentially viable malpractice case, the next step is to set up an initial client meeting. There are four things I want to accomplish during our initial meeting: (1) I want to introduce you to the members of the legal team you will be working with, (2) I want to explain and have you sign a retainer agreement (click here for an article that explains your financial obligations under that agreement), (3) I want to have you sign medical authorizations so I can secure the pertinent records for our investigation, and (4) I want to provide you with an overview of how my office investigates and prosecutes medical malpractice cases.

To prepare medical authorizations, a retainer agreement and guide us in our initial investigation we ask clients to provide the following information before we meet:

  1. Name, address, date of birth and social security number.
  2. The name and address (town is sufficient if you do not know the street address) of all physicians involved in the medical malpractice and the name of the hospital or health care facility where the malpractice occurred.
  3. The name and address of all other physicians, hospitals and/or facilities you visited before the medical malpractice occurred to the extent that such treatment was for the same condition or related to the condition that was being treated when the medical malpractice occurred. For example, if you were damaged during a stent procedure, you would also provide the name of the cardiologist who diagnosed you with a blockage and referred you to the interventional radiologist for the stent procedure.
  4. The name and address of all other physicians, hospitals and/or facilities you visited after the medical malpractice occurred for medical care to deal with the health problems caused by the malpractice. Again, by way of example, if you were harmed during a stent procedure and you had to see a plastic surgeon after you were released from the hospital to deal with scarring that occurred during the stent mishap, you would also provide the name and address of the plastic surgeon.
  5. A short and concise chronology of the facts related to the medical malpractice. A sample chronology related to the negligent treatment of a retinal detachment is at the bottom of the page. In general, the more information that you can provide the better. Nevertheless, clients often do not know more than the names of the doctors and facilities and the dates of care because health care providers rarely provide detailed information when medical mistakes occur. If you are scheduling an appointment right after the negligence occurred you are even less likely to have detailed information because subsequent treating doctors have not told you what happened.
  6. The name and address of your primary care physician.
  7. A short description (a sentence or two) of all chronic health conditions unrelated to the medical malpractice.

After we receive the above information, we arrange an appointment at a mutually convenient time to meet with you. Initial meetings generally take between 1.5 and 2 hours to complete.

Sample Chronology from a client with a negligently treated retinal detachment

  • On Thursday, October 1, 2015, I saw floaters in my field of vision and I visited my Ophthalmologist, Dr. Jones. He examined me and indicated I was suffering from vitreous detachment which was a normal part of the aging process. He scheduled a return appointment for the following week.
  • On Friday, October 2, 2015 a dark curtain was coming down over my eye so I called Dr. Jones and he asked me to come into the office. He advised that I was suffering from a retinal detachment, and he referred me to Dr. Smith, a retinal surgeon.
  • I saw Dr. Smith later in the day on Friday October 2, 2015, and he scheduled surgery for Saturday October 3, 2015 at Memorial Hospital.
  • On October 3, 2013 Dr. Smith performed surgery at Memorial Hospital which included a vitrectomy and insertion of a scleral buckle.
  • On Thursday, October 8, 2015 I returned to Dr. Smith and my vision was very blurry. He indicated it would clear over time.
  • On Friday, October 16, 2015, I could no longer see anything but shadows and shapes. Dr. Smith referred me to Dr. Brown, a neuroophthalmologist who I have been seeing weekly since. Dr. Brown has me going to a low vision therapist, Dr. White.

In-Hospital Falls | NJ Medical Lawyer

According to the Centers for Disease Control and Prevention (CDC), each year one in every three “older adults” (65 years and older) falls. Centers or Disease Control and Prevention, Falls Among Older Adults: An Overview. According to the CDC’s report, in 2010, approximately 21,000 older adults died from unintentional fall injuries. The most common fall-related injuries were fractures of the spine, hip, forearm, leg, ankle, pelvis, upper arm, and hand.

Among older adults who sustain a hip fracture, studies show that nearly 50% never regain their previous level of functioning, while 30% die within six months. John Jorgensen, MPA, RN, Reducing Patient Falls: A Call to Action, Best Practices for Falls Reduction: A Practical Guide, Mar. 2011, p. 2. In addition to the recovery and mortality problems falls create for older adults, these events carry significant costs. When adjusted for 2010 inflation, “falls among ‘older adults’ cost the U.S. health care system $30 billion in direct medical costs.” Centers for Disease Control and Prevention, Costs of Falls Among Older Adults.

Since in-patient falls are avoidable, in 2008, the Centers for Medicare and Medicaid Services (CMS) joined with the CDC to enact a new payment provision whereby Medicare and Medicaid would no longer reimburse hospitals when one of eight so-called “never events” during a hospital stay led to injury. Falls were included on that list of events that should never happen after a hospital admission. Consequently, hospitals would no longer receive payment by Medicare and Medicaid for treatment related to injuries caused by in-hospital falls. Jorgensen, supra at 2. CMS and others assert that that the initiative is a “strong incentive for healthcare providers to implement practices that reduce the number of preventable patient falls.” Jorgensen, supra at 2.

Efforts to increase health care quality and decrease costs are causing hospitals throughout the country to take steps to reduce the amount of inpatient falls by adopting fall-reduction programs. One of the first places hospitals turn to for guidance on establishing these programs is the Joint Commission on Accreditation of Healthcare Organizations. Accordingly, attorneys representing individuals who suffered injuries resulting from an in-hospital fall should also look to the Joint Commission in order to determine whether a hospital’s fall-reduction program, protocols, or policies deviated from acceptable standards of care.

The Joint Commission

The Joint Commission on Accreditation of Health Care Organizations is an independent, not-for-profit organization whose mission is to “continuously improve health care for the public . . . by evaluating health care organizations and inspiring them to excel in providing safe and effective care of the highest quality and value.” The Joint Commission, About the Joint Commission. To gain accreditation, hospitals must allow on-site surveys to determine whether the hospital is in compliance with the Commission’s current National Patient Safety Goals and Provisions of Care Standards.

According to the Commission, the purpose of the National Patient Safety Goals is to improve patient safety and focus on problems in health care safety and how to solve them. The Joint Commission, 2013 Hospital National Patient Safety Goals. Because these goals and standards are revised annually, it is important for hospitals that are seeking accreditation to ensure that their safety programs are up-to-date with any new requirements or compliance procedures.

National Patient Safety Goal 9

In 2005, the Joint Commission introduced a National Patient Safety Goal to help to reduce the risk of patient harm resulting from a fall. Jorgensen, supra, at 2. Dubbed National Patient Safety Goal 9, or NPSG 09.02.01, the goal consisted of two requirements: Requirement 9A and Requirement 9B. Joint Commission Resources: Special Report! 2005 Joint Commission National Patient Safety Goals: Practical Strategies and Helpful Solutions for Meeting These Goals. At the time the goal was introduced, hospitals seeking accreditation were only expected to comply with Requirement 9A, which stated that hospitals must “assess and periodically reassess each patient’s risk for falling, including the potential risk associated with the patient’s medication regimen, and take action to address any identified risks.” Requirement 9B, which was only applicable to long-term care facilities at the time, required: 1) the implementation of a fall reduction program, “including a transfer protocol”; and 2) that the “the effectiveness of the program” be periodically evaluated. Special Report! 2005 Joint Commission National Patient Safety Goals: Practical Strategies and Helpful Solutions for Meeting These Goals. In addition to complying with Requirement 9A, in 2005, hospitals were also expected to regularly assess each patient’s risk for falling by reviewing “risk factors such as previous history of falls, cognitive impairment, impaired balance or mobility, musculoskeletal problems, chronic diseases, nutritional problems, and use of multiple medications.” Id. At the time, the Commission also offered the following compliance “suggestions” as part of their risk reduction strategies:

  • Install bed alarms or redesign bed alarm checks and tests;
  • Install self-latching locks on utility rooms;
  • Restrict window openings;
  • Install alarms on exits;
  • Add fall prevention to education of patients, residents, or individuals served and their families,
  • improve and standardize nurse calls systems;
  • Use low beds for those at risk for falls;
  • Revise staffing procedures;
  • Counsel individual caregivers; and
  • Create a fall-preventing committee to assess new individuals or patients for fall potential, to regular review falls, evaluate interventions, and look for trends and patterns, and to communicate their findings to other staff.

Revisions and Additions

In 2006, the Commission revised National Patient Safety Goal 9 and expanded Requirement 9B so that it applied to hospitals. Joint Commission Resources: Joint Commission Perspectives on Patient Safety, Special Report! Helping Solutions for Meeting the 2006 National Patient Safety Goals, Vol. 5, Issue 8, August 2005, The Commission advised that a hospital’s fall reduction program “should include an assessment process, risk reduction strategies, transfer protocols, in-services, involvement of patients/families in education, and evaluation of environment of care issues.” It also offered the following tips on compliance solutions:

  • Identify the drug/drug classes that are most frequently associated with an increased risk for failing;
  • Use a transfer protocol to guide the staff in how a patient or resident can be transferred safely from a wheelchair, chair, stretcher or bed;
  • Evaluate how long it takes for the staff to address patient calls (and shorten that time, if necessary) and ensure that food, liquid, and toileting needs are met;
  • Promote a normal sleep pattern for patients;
  • Use a reliable and valid instrument to predict and identify prone-to-fall patients;
  • Communicate a patient’s fall risk to the patient and family and remind patients to call for assistance before getting out of bed or getting up from a chair (reassure them that this does not bother the staff);
  • Understand the patient by knowing that some are prone to falls because of recent changes in levels of independence, slow adaptation to environmental changes, short-term memory changes, poor impulse control, sensory changes (for example visual, auditory, balance, awareness of elimination needs), fine motor changes, and communication difficulties;
  • Make sure there is enough staff coverage during the shift changes;
  • Consider the environment of care by: 1) making sure the patient’s needed objects are accessible at all times; 2) improving lighting; 3) controlling noise; and 4) moving higher-risk patients closer to the nurses’ station; and
  • Provide visual cueing (for example, special colored ID bands, identifier on the door or bed) for staff members so that they know which patients are at high risk for falls. Id.

In 2008, National Patient Safety Goal 9 was again revised to include the following “Implementation Expectations” under Requirement 9B: 1) The organization establishes a
fall reduction program; 2) The fall reduction program includes an evaluation as appropriate to the patient population, settings, and services provided; 3) The fall reduction program includes interventions to reduce the [patient’s] fall risk factors; 4) Staff receive education and training for the fall reduction program; 5) The [patient] and [patient’s] family are educated on the fall reduction program and any individualized fall reduction strategies; and 6) The fall reduction program is evaluated to determine the effectiveness of the program. 2008 National Patient Safety Goals – Joint Commission Resources, Joint Commission Perspectives, Vol. 27, Issue 7, p. 16 (July 2007).

The Commission further advised that a hospital’s evaluation of its fall program could include an evaluation of a patient’s “fall history, medications and alcohol consumption review, gait and balance screening, walking aids, assistive technologies and protective device assessment, and environmental assessments.” Id. In 2010, NPSG 09.02.01 was upgraded from a National Patient Safety goal in hospitals to a Provision of Care Standard. Jorgensen, supra, at 2. The Provision of Care Standards that address reducing the risk of patient harm resulting from falls in hospitals are as follows: 1. PC (Provision of Care).Ol.02.08 EP (Element of Performance) 1 and 2 (Element of performance 1 – The hospital assesses and manages the patient’s risk for falls based on the patient population and setting; and Element of Performance 2 – The hospital implements individualized strategies to reduce falls based on the patient’s assessed risk for falls.) 2. PC (Provision of Care).02.03.01 EP 101. Based on the patient’s condition and assessed needs, the education and training provided to the patient include … fall reduction strategies. 3. HR (Human Resources).01.05.03 EP 8 (Staff participates in education and training on fall reduction activities. Staff participation is documented). 4. PI (Performance Improvement). Ol.Ol.01 EP 38 (The hospital evaluates the effectiveness of all fall reduction activities, including assessment, intervention, and education). Joint Commission Requirement, Approved: 2010 National Patient Safety Goals, Joint Commission Perspectives, Vol. 29. Issue 10 (October 2010).

Conclusion

Attorneys representing clients who suffer injuries resulting from an in-hospital fall should familiarize themselves with the Joint Commission’s Provision of Care Standards applicable to a patient’s fall to ascertain whether a defendant hospital maintained a fall prevention program consistent with applicable standards of care. In addition, by arming themselves with the applicable compliance suggestions, expectations, and solutions offered by the Commission, attorneys will be prepared to propound valuable discovery demands and effectively question physicians, nurses, representatives of the hospital and experts during depositions.

Hypoxic Encephalopathy and Cerebral Palsy.

Hypoxic ischemic encephalopathy is a diagnosis of neurological dysfunction. During labor and delivery, a baby may suffer brain damage due to insufficient oxygen to the brain. In some circumstances a child may also develop cerebral palsy which causes a lifetime of disabilities and loss of gross motor skills.

Certain conditions during labor and delivery can increase the risk of an ischemic injury to a child, including a compressed umbilical cord or the presence of meconium in the amniotic fluid. Additionally, maternal conditions such as a ruptured uterus, eclampsia, or a hyperstimulated uterus can interrupt oxygen flow to the baby’s brain.

During labor and delivery, the frequency and strength of a mother’s contractions are measured with a fetal monitor. This same device also measures a baby’s well-being by monitoring his/her heart rate. Physicians, nurses and midwives must be trained to interpret fetal monitoring tracings to recognize ominous signs of fetal distress. If members of the labor and delivery team cannot adequately interpret fetal monitoring tracings, there is a risk of an untimely response to signs of oxygen deprivation and injury to the baby. Unfortunately, the longer a baby’s brain is deprived of oxygen, the greater potential for injury. The focal point of the investigation of these cases is usually (a) were signs of fetal distress timely recognized and (b) was a timely cesarean section undertaken to prevent harm to the child.

Studies demonstrate that medical providers rarely report medical errors despite their legal and ethical obligation to do so. Additionally, because newborns cannot communicate and they are at their most undeveloped at birth, it is not always readily apparent that a baby suffered a neurological injury during labor and delivery. Events and evidence that can suggests that medical providers may have been concerned about the possibility of a birth injury include: (a) the performance of an unexpected cesarean section; (b) the need for supplemental oxygen following the baby’s birth; (c) unexpected prolonged hospitalization for the child; (d) an investigation into the neurological condition of the child shortly after birth through either an EEG, MRI or CT scan of the brain; (e) the development of seizures or tremors shortly after birth and (f) unexpected medications prescribed for the child at the time of discharge.

At Starr Gern, I work with a nationally known OBGYNs, neonatologists, pathologists and pediatric neurologists to investigate and prosecute traumatic birth injury cases. If you have questions about whether your child may have been injured through inadequate monitoring or an untimely cesarean section, call us to set up an appointment to discuss your case.