Medical Malpractice

Opera Singer Sues Over Career-Ending Injury Allegedly Sustained During Childbirth

April 29, 2014 | Lebowitz & Mzhen

An opera singer has filed suit against the U.S. government, alleging medical malpractice at a U.S. Army hospital. Herbst v. United States, No. 1:14-cv-00055, complaint (S.D. Oh., Jan. 16, 2014). She is claiming that a botched surgical procedure during childbirth has left her unable to work in her profession. Since the hospital is operated by the U.S. government, and the medical professionals working there were all government employees at the time, the lawsuit claims that the federal government is liable under the Federal Tort Claims Act (FTCA). 28 U.S.C. §§ 2671, et seq. The doctrine of sovereign immunity generally bars lawsuits against the government, but statutes like the FTCA establish situations in which the government may be sued for injuries.

The plaintiff is a classically-trained opera singer, who was previously with the Nashville Opera Company. Her husband is a Staff Sergeant in the U.S. Army at Fort Campbell, Kentucky. She went to Blanchfield Army Community Hospital (BACH) at Fort Campbell, where she and her husband resided, on February 27, 2012. She was thirty-nine weeks pregnant at the time, and had experienced spontaneous rupture of membranes. This is commonly known as having one’s water break, meaning that labor has started.

She gave birth to a healthy baby boy. During delivery, a certified nurse-midwife (CNM) reportedly performed a midline episiotomy, a procedure that widens the vaginal opening by making an incision in the perineum. The plaintiff states that she did not consent to this procedure, nor was she told about the possible need for it. Risks associated with an episiotomy include further tearing during or after birth.

Cap on Noneconomic Damages Violates State Equal Protection Clause, According to Florida Supreme Court

March 26, 2014 | Lebowitz & Mzhen

Caps on noneconomic damages, enacted in many states under the banner of “tort reform,” have brought uncertain results. While the stated purpose is to prevent litigation from driving up the cost of medical care, damage caps often lead in practice to injustice for victims of medical malpractice. A family in Florida challenged that state’s damage cap statute in federal court on constitutional grounds, after a court cut their judgment in half. The Eleventh Circuit Court of Appeals found no violation of the U.S. Constitution, but it asked the Florida Supreme Court to rule on the state constitution’s Equal Protection Clause. After nearly two years of review, the Florida court ruled that the state’s damage cap violates equal protection, finding that it “bears no rational relationship” to the goal of alleviating a “medical malpractice insurance crisis.”

More than half of all U.S. states, including Maryland, have laws capping noneconomic damages in medical malpractice and other personal injury cases. “Noneconomic damages” refer to intangible injuries like pain and suffering, mental anguish, loss of consortium, and disfigurement. Under Maryland law, the amount of the cap in medical malpractice cases increases by $15,000 every January 1. In 2014, the amount is $740,000, or $925,000 in wrongful death cases with two or more beneficiaries. Florida’s cap, which does not increase year-to-year, is $500,000 for medical injuries and $1 million for wrongful death.

The lawsuit challenging the Florida statute involves a woman who died due to complications after giving birth via caesarean section in February 2006. The birth was performed by U.S. Air Force medical personnel at a private hospital. Her parents, individually and on behalf of her estate and her infant son, sued the U.S. government under the Federal Tort Claims Act. A district judge ruled for the plaintiffs after a bench trial, awarding them over $980,000 in economic damages and $2 million in noneconomic damages. The noneconomic damage award was reduced to $1 million because of the damage cap.

Hospital Failed to Provide Adequate Supervision of Patient, According to Wrongful Death Lawsuit Brought by Family

March 12, 2014 | Lebowitz & Mzhen

A Texas hospital failed to supervise a man known to have mental health problems, resulting in the man’s death, according to a lawsuit filed by the man’s family. Martinez, et al v. Oak Bend Medical Group, et al, No. 14-DCV-212068, 2nd am. pet. (Tex. Dist. Ct., Ft. Bend Co., March 3, 2014). The lack of supervision allowed the man, who had already left the hospital unnoticed once, to leave the hospital and walk to nearby train tracks, where he was struck and killed by a train. The lawsuit assert causes of action for negligence against the hospital and the rail company, as well as claims under the state’s wrongful death and survival statutes.

According to the plaintiff’s second amended petition, police found the decedent, Arturo Martinez, unconscious outside of his father’s house in Richmond, Texas on December 2, 2013. They took Martinez, who had a history of mental illness, to Oak Bend Medical Center for treatment. Hospital staff allegedly knew about Martinez’s mental health issues. The following day, Martinez left the hospital unnoticed, having removed his own IV and catheter. Emergency personnel found him later the same day and brought him back to the hospital. The petition claims that Oak Bend was supposed to assign staff and security personnel to supervise Martinez.

Despite the presence of security personnel, Martinez managed to leave the hospital unobserved again on December 6. He left the building and walked onto nearby train tracks. An oncoming train, which allegedly failed to yield or give any warning of its approach, struck Martinez. He was brought back to Oak Bend with blunt force trauma injuries. The hospital performed surgery, allegedly without first obtaining the family’s permission, but Martinez died later that day.

Maryland Medical Malpractice Law Requires Plaintiff to Return to Arbitration Office After Dismissal for Deficient Expert Certificate, According to Court

February 21, 2014 | Lebowitz & Mzhen

A plaintiff alleging medical malpractice must submit a claim for arbitration to a state office before filing a lawsuit. A certificate and report from a qualified expert is also required. Any deficiency in these documents may be grounds for dismissal of the case, but the statute that requires dismissal does not specify whether a plaintiff may file a new lawsuit or must begin the arbitration process again. The Court of Special Appeals ruled in December 2013 in Puppolo v. Adventist Healthcare, Inc. that the plaintiff must go back to the arbitration office, adding yet another hurdle for medical malpractice claimants.

The Maryland Health Care Malpractice Claims Act (HCMCA) requires medical malpractice claimants to submit their claims to the Health Claims Arbitration Dispute Resolution Office (HCADRO). They must also file a certificate and report from a qualified expert with credentials in the same or a similar field as the defendant, identifying the relevant standard of care and explaining how the defendant breached it. A court must dismiss a petition without prejudice if the plaintiff does not submit a certificate and report, or if the documents are found to be deficient. A plaintiff may re-file within sixty days of dismissal, but the statute does not say if they must repeat the entire process or not.

The Puppolo case involved injuries allegedly suffered by a woman at Washington Adventist Hospital in 2006 and 2007. She was admitted in August 2006 after suffering a stroke. A hospitalist examined her the day of her admission and prescribed an anticoagulant to manage the risk of further blood clots. Another doctor took over her care the following day. A week later, she suffered an intracranial hemorrhage that put her in a coma for six weeks. She suffered further complications due to the coma, including bedsores and related infections requiring multiple surgeries, renal failure, and lung collapse, before her death in December 2008.

Data Suggest That Noneconomic Damage Caps Do Not Reduce the Cost of Healthcare, While Maryland Courts Continue to Affirm Their Constitutionality

January 7, 2014 | Lebowitz & Mzhen

Maryland state law imposes a cap on noneconomic damages in all personal injury and wrongful death cases. This applies to “nonpecuniary” damages like pain and suffering, mental anguish, disfigurement, physical impairment, and loss of consortium. MD Cts & Jud Pro Code §§ 3-2A-01(h), 11-108(a)(2). Advocates of damage caps, commonly known as “tort reform,” claim that they are necessary to keep insurance costs under control, particularly in the medical field, and therefore to keep costs down for the public. Opponents of tort reform, including advocates for patients’ rights and others, say that after more than a decade, caps on damages in personal injury litigation have not stopped an increase in healthcare and other costs. Maryland courts, meanwhile, have repeatedly affirmed noneconomic damages caps against constitutional challenges.

The law prohibits informing the jury about the noneconomic damage cap in personal injury, wrongful death, or medical malpractice trials. If a jury enters an award that exceeds the cap, the court is directed to reduce the amount accordingly. As of October 1, 2013, noneconomic damages in personal injury and wrongful death claims, other than medical malpractice claims, are capped at $785,000 for all claims arising from a single incident. The only exception to this is a wrongful death claim with multiple beneficiaries, in which case state law increases the maximum amount by fifty percent. The cap increases by $15,000 every October 1. MD Cts & Jud Pro Code § 11-108(b)(2). For medical malpractice claims, the cap is $740,000 as of January 1, 2014, increased by twenty-five percent for a wrongful death claim with more than one beneficiary. This cap also increases by $15,000 every year. MD Cts & Jud Pro Code § 3-2A-09(b). The for medical malpractice.

The advocacy group Public Citizen has criticized the idea that damage caps are necessary to control costs. Its data show that malpractice payouts in 2010 were the lowest at any point in the previous twenty years when adjusting for inflation, and the lowest since 1998 in absolute dollars. Annual malpractice payments reportedly decreased by nearly twelve percent between 2000 and 2010, and accounted for only 0.0013% of total health care costs nationwide in 2010. During the same ten-year period, national spending on health care rose by ninety percent.

U.S. Court of Appeals Decision Affirms Necessity of Certification in Medical Malpractice Claims

December 3, 2013 | Lebowitz & Mzhen

The U.S. Court of Appeals for the 4th Circuit recently made a decision that, while technically routine, has a substantial impact on the individual plaintiff.

The case, LITTLEPAIGE v. U.S., Ct. App. 4th Cir. (2013), was based on the alleged negligence in the care the plaintiff’s husband received at a VA hospital, which resulted in him suffering a hip fracture. The plaintiff’s husband had been placed on a special supervisory list/designation called “falls precaution,” due to his risk of injury. Yet, he was found on the floor twice, once resulting in a hip fracture, which required subsequent surgery, and caused him pain and suffering, among related claims.

The defendants in the case were granted a motion to dismiss the complaint, because the plaintiff failed to meet North Carolina’s certification requirement, mandatory in its medical malpractice claims.

Two Lawsuits Accuse Neurosurgeon of Malpractice Following Nerve and Other Injuries

November 18, 2013 | Lebowitz & Mzhen

Two lawsuits were filed in recent months alleging that a Texas neurosurgeon caused two patients to suffer serious injuries following the surgeries that he performed on them.

The first lawsuit, which was filed in June, stated that the doctor was supposed to perform a specialized procedure on the plaintiff, but that when she awoke, she had completely lost function in her left quadriceps, preventing her from being able to bear any weight on her left leg.

According to her lawsuit, the woman underwent a second operation, intended to counteract the problems from the initial surgery. The second surgeon reported finding “severe malpositioning of the surgical implants,” which were responsible for causing injury to the plaintiff’s nerves. Despite the subsequent surgery, the plaintiff still reportedly suffers from chronic pain and difficulty walking.

Overuse of Cardiac Stents Associated with Serious Injuries and Death

October 1, 2013 | Lebowitz & Mzhen

Patients and state regulatory boards alike are beginning to bring awareness to and concern over the alleged “binge”-like use of unnecessary coronary stents in the treatment of cardiac conditions.

In one case, a man received a total of 21 coronary stents over a period of eight months. In one procedure alone, the operating doctor tore a blood vessel, and as a result inserted five of the devices into a single artery. This information is according to the Texas Medical Board staff in a complaint. The complaint further states that the excessive and unnecessary stents weakened the man’s heart and exposed him to complications which included clots, blockages, and reportedly also his “ultimately death.” In that case, the doctor reportedly paid $10,000 and agreed to two years of additional oversight in order to settle the complaint for the man and other patients.

Cardiac stents are generally used to restore blood flow in patients who have suffered heart complications, such as heart attacks. In many cases, they are the best or only option for treatment. However, there is also a reported massive amount of so called elective stent surgery, which allegedly takes place at least on some level due to the immense payout to the individual doctors and hospitals by whom they are employed. According to court documents and other filings, the overuse of these devices has been associated with injury, death, and fraud. At least one expert believes that at two out of three elective stents are unnecessary, which equates to about one third of stent procedures overall.

Father Files Lawsuit Following Daughter’s Purported Liposuction Surgery Related Death

September 3, 2013 | Lebowitz & Mzhen

A man recently filed a lawsuit against a surgeon, a cosmetic surgery company, and its parent company, on behalf of his daughter whom he claims died following a liposuction procedure at the facility.

The suit claims that the woman died following the procedure in which the surgeon purportedly anesthetized by inserting a propofol-soaked rag into her mouth, and accidentally pierced her liver, among other claims.

The man’s daughter died in February, and according to a police report a second woman died in June following a procedure at the same facility.

Surgery on Wrong Side of Woman’s Brain Prompts Malpractice Suit

May 3, 2013 | Lebowitz & Mzhen

A medical malpractice lawsuit was filed recently against a St. Lois hospital and neurosurgeon, by the family of a woman alleging that the defendants operated on the wrong side of her brain and skull.

According to the complaint, the patient, was scheduled for a “left-sided craniotomy bypass.” Instead, the suit alleges, she received a “right-sided craniotomy surgical procedure.” A second surgery was reportedly performed six days later on the correct side of the woman’s skull following the discovery of the error.

According to her lawyer, the woman is now unable to speak intelligibly.

The suit alleges that the hospital and surgeon were negligent and careless, which led to the incorrect side surgery.

Specifically, the suit alleges that, “Before the incorrect surgery, plaintiff was mobile, cognizant and able to care for herself,” but after the allegedly botched job, “[she] requires around-the-clock care for her basic needs. … (She) will also continue to suffer from emotional distress, anxiety, disfigurement and depression.”
The patient underwent the surgery because she suffered from a series of mini-strokes, and was hoping that the craniotomy bypass surgery would prevent future strokes.