Newsletter Medical Negligence Issue 2004

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1 Newsletter Medical Negligence Issue 2004 OPENING REMARKS Injury and wrongful death claims resulting from medical negligence make up a significant part of our practice. Many of these cases involve complex causation and scientific issues. Expert medical consultants and witnesses are essential to the successful prosecution of these cases. We hope the following information may be of assistance to our friends and colleagues. If you would like additional information or have suggestions, please call us at or or e mail us at jclc@jclc.com. You can visit our website at Ballot Initiatives Threaten Patients' Rights "At least 44,000 and perhaps as many as 98,000 Americans die in hospitals each year as a result of medical error... Deaths due to preventable adverse events exceed the deaths attributable to motor vehicle accidents, breast cancer, or AIDS." So concludes a recent major study from the Institute of Medicine, To Err is Human. Those are just the preventable deaths in hospitals the number of injuries is presumably much higher and then there are the deaths and injuries from medical negligence outside of hospitals. With such an ongoing national epidemic, one might expect that there would be an outcry for accountability and safer medicine. Ironically, medical liability insurance companies are demanding less accountability, through such means as caps on damages that shift the cost of negligence from those responsible for substandard medicine to those who suffer from it. This year Oregon ballot initiative 106 seeks to amend the Oregon Constitution to limit noneconomic damages for medical negligence to $500,000. Initiative 128 may also be on the ballot, seeking to amend the Oregon Constitution to limit how much a plaintiff may pay her attorney to represent her and investigate and prosecute a medical negligence claim. We urge all Oregonians to oppose both of these initiatives. If the initiatives pass, the ability of Oregon citizens to pursue and receive fair compensation for injuries and deaths resulting from medical negligence will be severely limited. While insurance companies will be able to spend an unlimited amount of time and money in defending these cases, plaintiffs' resources to investigate and prosecute their claims will be arbitrarily and unfairly limited. CASE NOTES $2.3 Million Medical Negligence Verdict While our client was working at a mill, a wood stick kicked back from a saw and pierced his side, penetrating all the way to his spine. Over the next four days in the hospital, the wood in his spine caused a

2 gradual neurological deterioration that went untreated because doctors ignored symptoms and nursing evaluations. Based in part on the testimony of an extremely strong expert witness, the jury rejected the novel defense theories of causation and found for the plaintiff, rendering a verdict in the amount of $2.3 million. $925,000 Medical Negligence Verdict A forty five year old woman with no history of heart disease died unexpectedly of cardiac arrhythmia. Her physician had prescribed a risky combination of medications for her. The Medical Examiner determined that the cause of her death was a toxic buildup of one of those medications, an antihistamine. The Lane County jury returned a verdict for the plaintiff in the amount of $925,000. Nursing Home Negligence: Pressure Ulcers After heart surgery, an 80 year old Oregon woman was transferred to a skilled nursing facility for short term rehabilitation. Even though she was identified by the nursing facility as at risk for skin breakdown due to immobility, basic skin care procedures were not followed. After a few weeks in the facility, the woman had developed staph infected pressure ulcers penetrating through all skin thicknesses to bone. After depositions of the nursing home administrator and her care providers, the case settled for $532,000. FAILURE TO DIAGNOSE CANCER Colon Cancer In May of 2000 a Grants Pass woman saw defendants for an annual physical exam. During the course of the exam she reported that she had experienced some rectal bleeding. Even though she was 50 years old, the age at which colo rectal cancer screening should start, the defendant failed to do any screening and did not schedule a follow up. The cancer was not discovered until more than one year later. We sued for defendant's failure to diagnose the cancer in a timely fashion. The case settled in a private mediation. Breast Cancer Following an annual mammogram and follow up ultrasound, the radiologist who performed our client's ultrasound recommended a guided biopsy of a suspicious appearing breast lump. Our client was not told of the recommendation and, in fact, was told that her ultrasound was normal. The lump was subsequently diagnosed as cancerous after our client's next yearly mammogram. The delay in diagnosing the cancer allowed the tumor to grow, resulting in an increased risk of recurrence and death. Stomach Cancer A 38 year old Willamette Valley man was tested for stomach cancer, but the hospital pathologist reported there was no cancer. Four years later, when stomach problems reoccurred, the man returned to the hospital. He died after months of unsuccessful treatment, leaving his widow and four young children. It was later learned that the hospital pathologist was wrong: the original stomach samples actually showed cancer. The hospital and pathologists argued that their failure to diagnose the cancer did not cause the

3 man's death because the cancer was incurable four years earlier. The case settled through a judicial settlement conference. BIRTH TRAUMA INJURIES Failure to Perform C Section Results in Infant Death Expecting her first child, our client was admitted to the hospital for labor and delivery. During extended labor, the fetal heart monitor continued to display signs of fetal distress until another doctor intervened, delivering the child by emergency Cesarean section. The procedure was too late, and the child died two days following his birth. The case was settled prior to trial. Failure to Perform Timely C Section Results in Cerebral Palsy A baby girl born after her mother had labored for 40 hours suffered birth asphyxia and developed seizures within hours or her birth. She was diagnosed with cerebral palsy, with diminished life expectancy. A claim was brought for the baby against the physician and hospital for failure to perform a timely C Section. The case settled prior to trial. EMERGENCY ROOM NEGLIGENCE Failure to Diagnose Aortic Aneurysm A 66 year old woman was sitting in her living room when she experienced sudden and extreme chest pain radiating into the back of her throat. The nurse practitioner staffing the emergency room failed to recognize signs of the aneurysm on the chest x ray, and failed to consult with specialists who could have diagnosed the condition and provided life saving treatment. Improperly diagnosed with severe indigestion (GERD), the patient was sent home, where she died the next morning. The case was resolved by confidential settlement after plaintiff rested his case at trial. Failure to Diagnose Unstable Angina A fifty year old Prineville woman began experiencing waxing and waning chest pain radiating into her arm, and pressure in the chest. Her nurse practitioner was aware of the symptoms but failed to intervene. The hospital emergency room ordered two EKGs but no one reviewed the second EKG, which showed obvious changes requiring immediate followup. The woman died of a fatal arrhythmia within days of her emergency room visit. Multiple medical experts were prepared to testify that the care provided by the nurse practitioner and by the hospital staff fell below the standard of care, and that a simple stent procedure would have saved her life. The claim settled for a confidential amount on the eve of trial. OTHER MEDICAL NEGLIGENCE CASES Radiation Overdose An Oregon woman was treated with radiation for a tumor in her throat. Her physician prescribed a maximum prescribed dose of radiation that was to reach the critically sensitive spinal cord. Unfortunately, the actual radiation administered exceeded the prescribed amount, apparently because of mistakes in the

4 mathematical calculations. The patient suffered from radiation injuries to the spinal cord, resulting in permanent and progressive degenerative changes and neurologic losses. The case settled in the courthouse on the first day of trial for a confidential amount. Horseshoe Kidney In a case referred to our office by another attorney, our client's left ureter was severed during laparoscopy. Subsequent open surgery revealed a "horseshoe kidney," a rare anatomical irregularity where the kidneys are connected, often altering the position of the ureter. After several attempts to repair the ureter, and an auto transplant of the left kidney to the right side of the abdomen, the left kidney was removed. The case was resolved by confidential settlement. Nurse Pulls Out Wrong Catheter Following prostate surgery performed without complications, our client was transferred to the hospital's surgical floor in stable condition. He was medicated for pain with an epidural catheter and had a Foley catheter in place. The Foley catheter serves not only to drain urine, but also as support for the bladder head and other internal structures. Two days after the surgery, a floor nurse misinterpreted an order to remove the epidural catheter and pulled the Foley catheter instead, resulting in severe internal bleeding and other complications. The case was resolved by confidential settlement. INTERNET MEDICAL RESOURCES Many websites have helpful information. A sampling includes: The American Academy of Family Physicians. This site includes a listing of clinical algorithms which relate to standard of care issues. American Medical Association with Physician Finder. Also has good links to medical journal sites. assn.org DocFinder Association of State Medical Boards. Good way to locate state physician organizations. Oregon Board of Medical Examiners Physician finder for Oregon and board actions listed for the last year.

5 Merck Manual On Line Free access to Merck Manual of Diagnosis and Therapy. National Institute of Health Health information plus access to literature search (Pub Med) and drug information (Medline Plus). American Cancer Society Site for cancer information and treatments. E Medicine On Line Good site for emergency medical treatment by body system, access to medical journals, image finder, drug search, and more. MedicalStudent.Com A digital library of authoritative medical information. Maude Database Manufacturer and User Facility Device Experience. Provides access to adverse medical device reports. STAFF NOTES Jodie Wize, R.N. Jodie Wize is a registered nurse who joined the firm in Her background includes working as a staff nurse in the intensive care and medical/surgical fields. She also brings over ten years of home health experience as both a field nurse and Director of Professional Services. In our firm she researches and reviews medical literature, reviews and summarizes medical records, and consults with experts to establish liability and damages. REFERRALS Medical negligence cases make up a significant part of our practice. These include birth trauma, wrongful death, nursing home negligence, prescription errors, and surgical mistakes. Medical cases are complex, e

6 expensive, and time consuming. We carefully evaluate and scrutinize each case, and only a select few are prosecuted. If we can assist you with a case, we welcome your call.