Medical Liability Alert MALPRACTICE REVIEW Malpractice Verdict Review with Analysis 2014 CME Series

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1 Medical Liability Alert MALPRACTICE REVIEW Malpractice Verdict Review with Analysis 2014 CME Series This CME certified enduring activity is jointly provided by Center for Continuing and Outreach Education (CCOE) at Rutgers Biomedical and Health Sciences and Zarin s Professional Liability Publications. Release Date: July 1, 2014 Expiration Date: July 1, 2015 Medical Liability Alert: Malpractice Verdict Review with Analysis presents actual malpractice case studies of previous physician experiences reflected in trial results. Reviews also include a practical medical liability analysis and risk management advisory written by an experienced malpractice attorney for the purpose of avoiding similar liability and improving patient care. Risk management and the awareness of prior experiences can have a positive impact on your ability to provide excellent patient care. It also helps to mitigate liability associated with adverse outcomes. Target Audience This activity is intended for any practicing physician with an interest in medical liability and risk management. Learning Objectives Upon completion of this activity, participants should be better able to: Define the legal criteria that determine medical liability through review and analysis of actual medical liability case histories. Recognize the underlying causes and associated contributing factors of commonly cited malpractice cases. Implement risk management strategies to avoid and reduce the exposure of a medical malpractice claim or adverse outcome. Earn CME Credit This CME self-study activity contains the Malpractice Review cases published in the Medical Liability Alert newsletters from January through July Participants can earn up to 6.0 AMA PRA Category 1 Credits TM. Participants should choose the section that best meets their educational need and read all the cases within the section. After reviewing the material, complete the section s associated post-test consisting of a series of multiple-choice questions. Upon completing this activity as designed and achieving a passing score 70% or higher on the post-test, participants will receive a letter of credit awarding AMA PRA Category 1 Credits TM and the test answer key four (4) weeks after receipt of the registration and evaluation forms. The estimated time to complete this activity is 6.0 hours. Send the completed registration and evaluation forms to: Zarin's Professional Liability Publications Medical Liability Alert 2014 CME Series via mail: 45 Springfield Avenue, Springfield, New Jersey via fax: Claiming CME credit for this activity is available through July 1, 2015.

2 Faculty Ira J. Zarin, Esq, Founder, Medical Liability Alert, Zarin s Professional Publications, Springfield, NJ Planning Committee Jed M. Zarin, Editor in Chief, Medical Liability Alert, Zarin s Professional Publications, Springfield, NJ Gary Zarin, Business Development, Medical Liability Alert, Zarin s Professional Publications, Springfield, NJ Contributing Editors Brian Kessler, Esq, Editor, Jury Verdict Review Publication, Springfield, NJ Laine Harmon, Esq, Editor, Jury Verdict Review Publication, Springfield, NJ CME Reviewer Dennis P. Quinlan, MD, Associate Professor of Medicine, Rutgers New Jersey Medical School, Newark, NJ Accreditation This activity has been planned and implemented in accordance with the Essential Areas and Policies of the Accreditation Council for Continuing Medical Education (ACCME) through the joint providership of Rutgers, The State University of New Jersey and Zarin's Professional Liability Publications. Rutgers, The State University of New Jersey is accredited by the ACCME to provide continuing medical education for physicians. Rutgers, The State University of New Jersey designates this enduring material for a maximum of 6.0 AMA PRA Category 1 Credits TM. Physicians should claim only the credit commensurate with the extent of their participation in the activity. In order to help ensure content objectivity, independence, and fair balance, and to ensure that the content is aligned with the interest of the public, CCOE has resolved all potential and real conflicts of interest through content review by a non-conflicted, qualified reviewer. This activity was peerreviewed for relevance, accuracy of content and balance of presentation by Dennis P. Quinlan, MD. This activity was pilot-tested for time required for participation by Sejal Amin, MD, Chris Bryczkowski, MD, Lalithapriya Jayakumar, MD, Snehal Patel, MD and Laryssa A. Patti, MD. Disclosure Disclaimer In accordance with the disclosure policies of Rutgers and to conform with ACCME and FDA guidelines, individuals in a position to control the content of this educational activity are required to disclose to the activity participants: 1) the existence of any relevant financial relationship with any entity producing, marketing, re-selling, or distributing health care goods or services consumed by, or used on, patients, with the exemption of non-profit or government organizations and non-health care related companies, within the past 12 months; and 2) the identification of a commercial product/device that is unlabeled for use or an investigational use of a product/device not yet approved. Disclosure Declarations Ira J. Zarin, Esq has no relevant financial relationships to disclose. Dennis P. Quinlan, MD has no relevant financial relationships to disclose. Field Testers, Sejal Amin, MD, Chris Bryczkowski, MD, Lalithapriya Jayakumar, MD, Snehal Patel, MD and Laryssa A. Patti, MD, have no relevant financial relationships to disclose. Planners, Brian Kessler, Esq, Laine Harmon, Esq, Gary Zarin, and Jed Zarin, have no relevant financial relationships to disclose. Center for Continuing and Outreach Education staff member, Patrick Dwyer, Director, Continuing Medical Education, has no relevant financial relationships to disclose. Off-Label Usage Disclosure This activity does not contain information of commercial products/devices that are unlabeled for use or investigational uses of products not yet approved. For Additional Information or Questions Zarin's Professional Liability Publications 45 Springfield Avenue, 2nd Floor, Springfield, New Jersey Subscriptions: (973) Main Office: (973) Fax: (973) Please direct CME related questions to CCOE at or Disclaimer The views expressed in this activity are those of Zarin s Professional Liability Publications. It should not be inferred or assumed that Zarin s Professional Liability Publications are expressing the views of Rutgers. Copyright 2014 Zarin s Professional Liability Publications and Rutgers, The State University of New Jersey. All rights reserved including translation into other languages. No part of this activity may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval systems, without permission in writing from Zarin s Professional Liability Publications and Rutgers. 2

3 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 1 SECTION 1 $2,433,000 VERDICT MISDIAGNOSIS OF BORDERLINE OVARIAN TUMOR UNNECESSARY CHEMOTHERAPY SEVERE CHEMO BRAIN DETERIORA- TION OF COGNITIVE ABILITIES. 1. Regarding the use of the exercise of reasonable medical judgment defense in order to avoid liability for an erroneous diagnosis resulting in injury to a patient, which of the following statements are true? a. Since a practitioner has the right to exercise their own medical judgment in arriving at a conclusion, the fact that the exercise of that judgment turns out to be erroneous at a later time will not normally incur liability. b. Practitioners have the right to exercise their own medical judgment in arriving at a diagnosis. The exercise of that judgment can never incur liability even where the practitioner s judgment may later turn out to have been inaccurate or inappropriate. c. Where a practitioner exercises medical judgment to do that which most physicians under the same conditions would not do, then they may not expect to avoid liability based on the defense that they were exercising their own reasonable medical judgment, primarily because such judgment cannot be said to have been reasonable under the circumstances. d. Since practitioners have the right to exercise their own medical judgment in arriving at a diagnosis, they cannot incur liability even when the exercise of that medical judgment cannot be considered reasonable. 2. Regarding a practitioner s right to exercise his or her own medical judgment in arriving at a diagnosis, which of the following statements are correct? a. Where a practitioner s judgment leads him or her to do that which most physicians under those circumstances would not do, they may not avoid liability by claiming that at the time, they were exercising their own judgment, because that judgment under the circumstances cannot be said to have been reasonable. a. A practitioner will always expect to avoid liability even where he or she is involved in a misdiagnosis if they can show that at the time, they were exercising their own medical judgment in doing so. c. Practitioners have the right to exercise their own medical judgment in the course of treatment of a patient, but can never avoid liability based upon their contention that they were exercising their own medical judgment which they conceived at the time to be reasonable. d. The exercise of medical judgment that can avoid liability for a practitioner having made a misdiagnosis can always be justified if the practitioner can establish that at the time, he or she was exercising their own individual medical judgment in doing so. $2,350,000 VERDICT FAILURE TO DIAG- NOSE KIDNEY BLOCKAGE RESULTING IN WIDESPREAD INFECTION AMPUTATION OF FOOT AND PART OF LEG MOST FIN- GERTIPS FALL OFF. 3. Where subsequent treating physicians in an emergency department fail to review patient records from an emergency room visit two days earlier, and then misdiagnose the patient s condition causing severe injury, which of the following statements are true? a. Subsequent treating emergency medicine physicians cannot be charged with the responsibility for being aware of the findings and determinations of prior treating emergency room physicians who rendered their own diagnosis two days earlier if they did not read the available record within the same emergency room containing those earlier findings and determinations. b. Subsequent treating emergency medicine physicians who fail to examine the patient s available emergency department records from a visit two days earlier, thereby causing a 12- hour delay in diagnosis and treatment of a severe infectious condition to the detriment of the patient, can normally expect to incur liability. c. Practitioners in an emergency department setting cannot be charged with the responsibility for having read all the relevant medical records existing within the same institution if they can prove that no such records were actually called to their attention. d. If practitioners who fail to read an appropriate medical record existing within the institution in which they are treating the patient and are not proven to have been directly responsible for the creation of that record, then they cannot be held liable. 4. Regarding the liability of a practitioner who renders a correct diagnosis, but does so after an unnecessary 12-hour delay resulting in significant additional injury to the patient, which of the following statements are correct? a. Practitioners so involved can incur no liability if they ultimately arrived at the correct diagnosis from which the patient was actually suffering. b. There can be no liability to a practitioner so involved if ultimately, even after a 12-hour delay, he or she arrives at the correct diagnosis and affords the patient appropriate treatment at that time. c. There can be no liability to the practitioner involved, particularly if the patient ultimately received the necessary treatment which their condition required. d. The fact that the patient ultimately received necessary treatment, but which treatment was rendered too late to avoid injury, will not excuse the defendant s deviation in failing to make a timely diagnosis so as to avoid injury to the patient due to a delay in a correct diagnosis. $1,500,000 VERDICT FAILURE TO PER- FORM LAPAROSCOPIC SURGERY UPON INDICATIONS OF ECTOPIC PREGNANCY TREATED MEDICALLY FOR ALMOST TWO WEEKS RUPTURED FALLOPIAN TUBE, EXTENSIVE INFAMMATION SCARRING OF REMAINING FALLOPIAN TUBE SIGNIFI- CANTLY REDUCED FERTILITY. 5. Where a practitioner undertakes to do that which most physicians under the same circumstances would not do, resulting in injury to the patient, regarding the liability of that practitioner, which of the following statements are not true? a. Practitioners in this situation can avoid liability by contending that at that time, they were exercising their own medical judgment in doing so. b. In order to avoid liability for having made a mistake by exercising their own medical judgment, that judgment exercised must be considered reasonable judgment. c. Exercising medical judgment that leads a physician to deviate from what most physicians would do under similar circumstances cannot be considered to be the exercise of reasonable judgment. d. Physicians who undertake to exercise unreasonable judgment in the course of treatment of a patient cannot avoid liability based upon the fact that at the time, they were exercising their own personal medical judgment. 6. Where evidence clearly indicates that a patient was suffering from an ectopic pregnancy of a size greater than 4 cm and the practitioner involved then waits for almost two weeks before performing laparoscopic surgery, causing the patient to suffer a ruptured fallopian tube, regarding liability, which of the following statements are incorrect? a. A treating ob/gyn cannot incur liability for any delay in affording laparoscopic surgical intervention, which was initially addressed medically with methotrexate, because it was his personal opinion that the ectopic pregnancy could be missed with laparoscopic surgery. b. Since the evidence indicated that the patient was suffering from an ectopic pregnancy of a size greater than 4 cm, the appropriate standard of care clearly mandates the performance of a laparoscopic surgical intervention which should be performed as soon as possible. c. The defendant practitioner clearly deviated in not performing a necessary procedure for almost two weeks to the point where the patient suffered irrevocable injury due to the rupture of the fallopian tube as a result of the delay. Continued on next page 3

4 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 1 SECTION 1 d. Undue delay in appropriately addressing a patient s condition can incur liability for all of the injuries sustained including, in this case, a ruptured fallopian tube, extensive inflammation within the abdomen involving the bowel and appendix, as well as injury to both fallopian tubes and ovaries. $1,370,000 VERDICT SURGERY NEGLI- GENCE FAILURE TO TIMELY DIAGNOSE AND TREAT BOWEL OBSTRUCTION NEGLIGENT DIAGNOSIS OF BOWEL OBSTRUCTION AS CANCER WRONGFUL DEATH OF 73-YEAR-OLD PATIENT. 7. Where a practitioner erroneously decides upon what he perceives to be the most serious potential threatening diagnosis without confirmation through appropriate testing, and thereby delays appropriate consideration of the actual on-going and treatable condition to the patient s peril, regarding liability, which of the following statements are false? a. Practitioners who simply decide upon what he or she perceives to be the more serious of the potentially threatening diagnoses without confirmation through appropriate testing can incur liability for having done so, particularly if such action inappropriately delays proper treatment of a treatable condition. b. Practitioners will be determined to have deviated from acceptable standards of practice for incorrectly diagnosing a patient with advanced stage colon cancer when the patient was actually suffering from a benign mass that was causing intestinal blockage, a treatable condition. c. Practitioners cannot incur liability if, in their medical judgment, the more threatening diagnosis decided upon can be considered more serious than the actual treatable condition which was ignored. d. Evidence clearly indicating that not only did the practitioner incorrectly diagnose the decedent with advanced stage colon cancer without appropriate testing and evaluation, but also seriously deviated by taking no action whatsoever to confirm or repute that erroneous diagnosis, will bring a finding of liability. 8. Regarding the responsibility of a treating practitioner in arriving at a correct diagnosis during the course of treatment of a patient, which of the following statements are incorrect? a. Treating practitioners are generally considered to be guarantors of initially arriving at a correct diagnosis in the course of treatment of their patients in every situation. b. Practitioners are not legally considered to be guarantors of arriving at a correct diagnosis in every particular treating situation. c. Treating practitioners are legally considered to be guarantors of abiding by all appropriate standards of care in arriving at a diagnosis. d. Where a diagnosis is erroneously arrived at for failure to appropriately confirm or refute the diagnosis with all available and appropriate testing, thereby perpetuating the misdiagnosis and causing injury to the patient, the practitioners so involved can clearly incur liability for having done so. $868,408 VERDICT FAILURE TO PROP- ERLY PERFORM SKIN RESURFACING PRO- CEDURE PLAINTIFF SUFFERS SEVERE BURNS TO HER FACE HYPERBARIC CHAMBER THERAPY PERMANENT FACIAL SCARRING. 9. Regarding a medical practitioner s legal responsibility in undertaking a medical procedure beyond their training and experience to handle adequately and safely, resulting in injury to the patient, which of the following statements are true? a. Since practitioners are not legally considered to be guarantors of a good result in every case they undertake, they normally would not be expected to incur liability in any medical situation involving a poor result to the patient. b. Although practitioners are not legally considered to be guarantors of a good result in every case they undertake, they do warrant that they have adequate training and experience to safely perform that procedure in accordance with the relevant standard of care. c. There can be no liability to the practitioner so involved if he undertook the procedure as a licensed plastic surgeon. d. The practitioner involved would not normally be expected to incur liability if a poor result occurred despite the fact that he had some awareness of the procedure as part of his plastic surgery training. 10. Where a practitioner undertakes to perform a medical procedure that is medically contradicted by the patient s medical history, regarding the liability of the practitioner involved, which of the following statements are not true? a. There can be no liability to the practitioner who performed a procedure where the practitioner can establish that he or she was not directly informed by the patient of the patient s prior keloid scarring, which contraindicated the performance of the procedure involved. b. The practitioner involved can incur liability for failing to appropriately read the patient s given history wherein the patient advised that she had previously sustained keloid scarring which is a known and clear contraindication for the performance of the procedure involved. c. When a practitioner undertakes a procedure that is contraindicated due to the patient s known prior medical history of keloid scarring, the practitioner may not avoid liability based on the argument that he or she was unaware of that prior history. d. Where there exists prior, readily available medical history indicating a patient s contraindication to a proposed procedure, the practitioner who proceeds without having consulted that available history will not avoid liability based upon the argument that at the time, he or she was unaware that the patient was not a suitable candidate for the procedure. 4

5 $2,433,000 VERDICT - ONCOLOGY - MISDIAG- NOSIS OF "BORDERLINE" OVARIAN TUMOR - UNNECESSARY OOPHERECTOMY - THREE ROUNDS OF UNNECESSARY CHEMOTHER- APY - SEVERE "CHEMO BRAIN" DETERIORA- TION OF COGNITIVE ABILITIES. This was a medical malpractice action in which the plaintiff contended that the defendant oncologist negligently misdiagnosed an ovarian tumor as adenocarcinoma when, in fact, the plaintiff suffered a "borderline" tumor or a "tumor of low malignant potential." The plaintiff maintained that chemotherapy would provide no benefit when addressing a borderline tumor and that the plaintiff was negligently subjected to unnecessary chemotherapy. The plaintiff contended that she suffered a very significant reaction of "chemo brain," which involved a dramatic deterioration of her cognitive abilities that is permanent in nature. The evidence reflected that after the plaintiff developed sharp pains in her side, which she believed was probably related to the stresses of ambulating with crutches after suffering a recent foot fracture; she underwent a CT-scan that showed ovarian growths. After multiple consultations she decided on the hospital with which the defendant oncological surgeon was affiliated for exploratory laparoscopy. This defendant performed the minimally invasive procedure. He removed portions of the tumor from a number of locations within the pelvis and sent them to pathology for frozen section analysis. A half hour later the defendant pathologist called the surgeon in the operating room and reported the tumor as "adenocarcinoma". The defendant oncological surgeon then told the husband that his wife had ovarian cancer and needed a total hysterectomy, including her tubes and ovaries removed in order to save her life and he consented. The defendant oncological surgeon returned to the operating room to perform that surgery while plaintiff was still under anesthesia. Three days following the surgery, the pathology department reported that the permanent section slides demonstrated adenocarcinoma. On that basis, the defendant surgeon ordered chemotherapy. At her first chemotherapy, the plaintiff had a violent reaction, and they had to modify the pre-medication and the rate of delivery of the drugs. The side effects plaintiff suffered from the chemotherapy were severe, and included all of the classic side effects such as night sweats, hot flashes, nausea, vomiting and hair loss, but to an exaggerated degree. After her second round of chemotherapy, the side effects were even worse so she sought out potential clinical trials at the non-party Memorial Sloan Kettering. She brought her pathology slides to Memorial. The day after her return from her third round of chemotherapy she received a call from Memorial Sloan Kettering advising her that she did not have adenocarcinoma, that all she had was a borderline tumor, and that chemotherapy should not be given because chemotherapy does not improve the patient's survival with borderline tumors. The plaintiff never returned for the fourth chemotherapy session. The plaintiff's expert pathologist contended that the slides reflected the absence of any frank invasion or other signs that would support a diagnosis of adenocarcinoma. The expert contended that the tumor was clearly a borderline tumor or tumor of low malignant potential. The defendant's expert pathologists maintained that the slides contained features that were consistent with adenocarcinoma and that the defendant exercised permissible medical judgment. The defendant further contended that the jury should consider that the plaintiff has remained cancer-free for some seven years. The plaintiff elicited testimony from a defense expert that in the case of borderline tumors, studies have established that the rates of recurrence or survival are not improved by chemotherapy. The defendant testified that the slides clearly reflected adenocarcinoma and that the plaintiff's position should be rejected. The plaintiff argued that this testimony varied substantially from the defendant's experts' conclusion that the defendant exercised reasonable medical judgment at coming to a difficult diagnosis. The plaintiff's expert used a digital microscope and projected the images during his testimony. The plaintiff argued that the images were particularly clear and maintained that his discussion of the slides and the absence of any signs reflecting adenocarcinoma should be given greater weight than the interpretations of the slides relied upon by the defendant, which the plaintiff contended were blurry because of the extensive magnification. The plaintiff's treating psychotherapist testified that the plaintiff suffered severe and permanent cognitive deficits as a result of the unnecessary chemotherapy. The plaintiff pointed out that prior to the discovery of the growths; she was a real estate asset manager responsible for a portfolio of multiple commercial properties throughout the United States. The plaintiff was a practicing attorney, and held a master's degree in real estate development from New York University where she graduated as the valedictorian of the class. The plaintiff claimed that since the chemotherapy she cannot even balance her checkbook, cannot focus on any business problems, and lacks the ability to have a cohesive plan of action in problem solving, which prior to the chemotherapy was her forte. The jury found for the plaintiff and awarded $2,243,000, including $1,500,000 for past pain and suffering, $183,000 for past lost wages, and $750,000 for future pain and suffering. During deliberations, the parties entered into a confidential high/low settlement. The plaintiff will receive the high. MEDICAL LIABILITY ANALYSIS In this case, involving the alleged use of unnecessary chemotherapy, a defense argument that the use of medical judgment was appropriate and that the challenge of such judgment by a survivor should be rejected, would generally have been very persuasive. The plaintiff overcame this factor, however, and the apparent contrast between the defense arguments regarding the utilization of medical judgment in coming to a difficult diagnosis, and the steadfast testimony of the defendant himself that the diagnosis was clearly accurate, was felt to be particularly significant. Additionally, the plaintiff rented an electron microscope for the day, projecting especially clear images of the slides during the plaintiff's expert pathologist's testimony. In this regard, it is felt that although costly, the use of such a tool was particularly effective in this case. Regarding damages, the plaintiff, who contended that the chemotherapy caused "chemo brain" that in her case resulted in severe and permanent cognitive deficits, underwent psychotherapy with the same therapist that had previously treated her husband. In this regard, the psychotherapist offered detailed testimony regarding the manner in which the plaintiff, a practicing attorney involved in real estate development, was previously extremely productive, contrasting this history with the manner in which she now cannot even balance her checkbook. In this case, the defendant attempted to avoid liability by testifying during trial that the slides in question clearly reflected andocarcinoma, therefore, the plaintiff's position in this regard should be rejected. However, the plaintiff's experts successfully argued that this testimony varied substantially from the defense expert's conclusions that the defendant exercised reasonable judgment in coming to a difficult diagnosis. The erroneous conclusion by the defendant was also rejected by the opinion of the non-party Memorial Sloan Kettering's experts who, after examination of the pathology slides, concluded without question that the plaintiff did not have any form of andocarcinoma and who opined that she was actually suffering from a borderline tumor, with a further admonition by these experts that chemotherapy as prescribed by the defendants should not have been administered and should certainly not have been continued to be given since such administration is known not to improve survival rates in patients with borderline tumors. Practitioners should take interest in noting that the plaintiff demonstrated through expert testimony that the images were, in fact, particularly clear and reflected a total absence of any frank invasion or other signs that would support a diagnosis of andocarcinoma. In this regard, the plaintiff's experts effectively utilized a digital microscope in court in front of the jury clearly demonstrating clear images unequivocally indicating the absence of any signs reflecting the presence of andocarcinoma. This demonstration before the jury was thought to have been particularly effective to counter the defense presentation of blurred images presented without any discernible or documentary conclusions in furtherance of their position. Another aspect of this case was the defense experts' continuing insistence of relying on the defense of the exercise of reasonable medical judgment to justify the actions of the defendant practitioners in this case in having reached and acted upon an erroneous medical conclusion. This defense strategy was soundly rejected by the judge and jury. Practitioners are once again reminded that the utilization of the exercise of reasonable medical judgment defense so as to justify a practitioner having made an error in a conclusion that later turns out to be erroneous can only be effective where a practitioner's actions, although subsequently determined to be erroneous, were reasonable under all the circumstances involved when that medical judgment was exercised. In this case, the judge and jury clearly determined, despite the qualification of the defense experts to the effect that reaching any conclusion in that regard was difficult, that the actions of the defendants were not reasonably justified under all the circumstances then prevailing. The plaintiff's ex- 5

6 perts' demonstration on an electron microscope projecting especially clear images of the slides during the expert's pathology testimony indicating the unequivocal and total absence of any andocarcinoma on such telltale slides, together with the Sloan-Kettering expert testimony to the exact same conclusion, was thought to be particularly effective in this case in rejecting the defense position. Practitioners can indeed be reminded by this aspect of the case that although practitioners in exercising their reasonable medical judgment are not guaranteeing arriving at a correct conclusion in every case, they will be held responsible if in coming to that conclusion, they ignored clear signs and symptoms that cannot be considered medically reasonable under the circumstances then and there involved. In that event, they can, in fact, incur liability for a misdiagnosis under those prevailing circumstances, which is exactly what happened in this case. Also in this case, the evidence clearly indicated that the patient suffered a severe reaction to the repeated and unnecessary chemotherapy which the physicians at Memorial Sloan-Kettering and the plaintiff's experts opined should not have been prescribed by the defendants in accordance with acceptable standards of practice. The evidence further indicated that as a result of this repeated and unnecessary chemotherapy despite the violent reactions experienced by the patient, the plaintiff suffered severe and permanent cognitive deficits according to the plaintiff's treating psychotherapist, physicians and advisors from Memorial Sloan-Kettering. Practitioners are reminded by this aspect of the case that when they continue to prescribe medication that is clearly unwarranted with serious reactions to that medication on a repeated basis, they may not be able to avoid liability for doing so based upon the argument that they were not initially aware of the patient's sensitivity to the medication being administered. In this case, the evidence that the medication was repeatedly administered despite the patient's negative reactions and complaints to the defendants created a clear path for a finding of liability by the lay juror. EXPERTS Plaintiff's oncologist expert: Lawrence Stone, MD from Lansing, MI. Plaintiff's pathologist expert: Debra Heller, MD from Newark, NJ. Plaintiff's psychotherapist expert: Allen Frank, LCSW from New York, NY. Kings County, NY. Vizzini vs. Mt. Sinai Hospital, et al. Index no /07; Judge Michelle Weston. Attorney for plaintiff: Richard A. Gurfein of Gurfein Douglas LLP in New York, NY. $2,350,000 VERDICT - EMERGENCY DEPART- MENT - FAILURE TO DIAGNOSE KIDNEY BLOCKAGE RESULTING IN WIDESPREAD IN- FECTION - AMPUTATION OF FOOT AND PART OF LEG - MOST FINGERTIPS FALL OFF. In this medical malpractice matter, the plaintiff alleged that the defendants were negligent in their care and treatment of the plaintiff, failed to diagnose a kidney blockage which caused a widespread infection that resulted in loss of appendages. The defendants maintained that the plaintiff was treated appropriately and there was no deviation from acceptable standards of care. The 24-year-old female plaintiff went to the hospital emergency room on August 1, 2006 complaining of pain in her left side. She had no health insurance. The plaintiff was diagnosed by the defendants as suffering from a kidney stone. She was sent home with pain medication the following day. The plaintiff woke on the morning of August 3rd with a jarring pain in her abdomen. She was transported by ambulance back to the same hospital room. She informed the defendants that she was in the emergency room two days earlier and was diagnosed with kidney stones. The plaintiff came under the care of the defendant physicians who determined that the plaintiff was either suffering from a gallbladder problem or an ectopic pregnancy that had ruptured. The plaintiff in actuality was suffering from a septic infection. The defendants failed to timely diagnose the infection which spread throughout the plaintiff's body. It was 12 hours before she was diagnosed with the kidney blockage and a urologic surgeon removed the blockage through a surgical procedure. Gangrene had set in, however, and a few weeks later the plaintiff had to undergo amputation of part of her left leg and part of her right foot. The plaintiff also sustained auto-amputation of most of her fingertips. The plaintiff brought suit against the defendants alleging negligence in failing to timely diagnose the kidney blockage and resulting septic infection resulting in the loss of her appendages. The defendants denied the allegations and maintained that the plaintiff was properly treated and received appropriate fluids and appropriate treatment for septic shock. The matter was tried over a period of ten days. At the conclusion of the trial, the jury deliberated for three and one-half hours before returning its verdict in favor of the plaintiff and against the defendants. The jury awarded the sum of $2,350,000 in damages. MEDICAL LIABILITY ANALYSIS The female plaintiff was a single mother of two at the time of the incident, employed as a maid after emigrating from El Salvador when she was eight years of age. The plaintiff spent six months in a hospital and then underwent intense physical therapy at a nursing facility. The plaintiff requires the use of prosthetics to ambulate and has been unable to return to any type of work since the incident. The plaintiff had incurred $190,000 in medical expenses as a result of the incident. The award consisted of: $1,500,000 for pain and suffering; $360,000 in lost wages; $296,000 for lost household services; and $190,000 in past medical specials. The evidence in this case indicated that the 24- year-old female plaintiff had initially presented to the defendant hospital's emergency department on August 1, complaining of pain in her left side and advising that she had no health insurance. The plaintiff was diagnosed as suffering from a kidney stone and was sent home with pain medication the following day. The evidence further indicated that two days later, the plaintiff awoke with a jarring pain in her abdomen. She was transported by ambulance back to the same hospital emergency department where she informed the subsequently treating defendants that she had been in the emergency room two days earlier and was diagnosed as having kidney stones. The plaintiff came under the care of the defendant physicians who determined that she was, in fact, suffering from a gall bladder problem or an ectopic pregnancy that had ruptured. However, the evidence presented indicated that the plaintiff was, in actuality, suffering from a septic infection caused by kidney blockage. Unfortunately, the subsequently treating emergency room physician failed to contact the prior emergency room physician in the same institution to determine the basis of the determination that the plaintiff was suffering from kidney stones and further failed to examine the medical records from the E.D. visit two days earlier which would have shown basically the same complaints, although less severe. Practitioners can be reminded by this case of the importance of rendering a timely and accurate diagnosis, particularly when there exists a potential for an ongoing infection which, if not timely addressed, can spread throughout the body, as it did in this case. The evidence indicated that it was 12 hours later before the plaintiff was actually correctly diagnosed with ongoing kidney blockage and underwent the necessary surgical procedure by a urologist to remove that blockage. However, the delay in treatment had caused gangrene of a significant nature to set in, which in turn, a few weeks later, necessitated the amputation of part of the plaintiff's left leg and part of her right foot in addition to the plaintiff sustaining auto amputation of most of her fingertips as a result of the ongoing and unaddressed septic infection and progression of the disease. The plaintiff successfully brought suit against the defendants alleging negligence in failing to timely diagnose the kidney blockage, creating the resulting septic infection which ultimately resulted in the loss of her appendages. At trial, plaintiff's counsel, through expert testimony, successfully argued deviation from acceptable standards of practice for failing to timely diagnose the ongoing kidney blockage and resulting septic infection resulting in the loss of the plaintiff's appendages. Practitioners are reminded by this case that even in situations where the accused practitioners ultimately render an appropriate diagnosis and take remedial action, this will not excuse an undue delay in coming to that correct diagnosis, particularly in situations where a correct diagnosis is critical to the patient's well-being. The fact that the patient ultimately received necessary treatment which was rendered too late to avoid injury to the patient does not in any way excuse the defendants' negligence and deviation in failing to appropriately and timely diagnose the kidney infection at a much earlier time. EXPERTS Plaintiff's critical care expert: Harold Palevsky, M.D. from Philadelphia, PA. Plaintiff's emergency medicine expert: Kenneth Larsen, M.D. from Warrenton, VA. Plaintiff's radiology expert: Lawrence Holder, M.D. from Jacksonville, FL. Plaintiff's urology expert: Kenneth Ring, M.D. from Westfield, NJ. Defendant's critical care expert: Phillip Dellinger, M.D. from Camden, NJ. Defendant's 6

7 critical care, ER expert: Michael Seneff, M.D. from Washington, DC. Defendant's emergency medicine expert: Robert Rothstein, M.D. from Bethesda, MD. Defendant's radiology expert: John Reeder, M.D. from Pikesville, MD. Defendant's urology expert: Thomas Jarrett, M.D. from Washington, DC. Defendant's vocational rehabilitation expert: Trudy Koslow from Alexandria, VA. Montgomery County, MD. Yesenia Rivera vs. Dr. T., et al. Case no V; Judge Marielsa Bernard. Attorneys for plaintiff: Julia R. Arfaa and Emily C. Malarkey of Salsbury Clements Bekman Marder & Atkins in Baltimore, MD. Attorneys for defendant: Benjamin S. Vaughn and Andrew Marter of Armstrong Donohue Ceppos Vaughn & Rhodes in Rockville, MD. $1,500,000 VERDICT - OB/GYN - FAILURE TO PERFORM LAPAROSCOPIC SURGERY UPON INDICATIONS OF ECTOPIC PREGNANCY TREATED MEDICALLY FOR ALMOST TWO WEEKS - RUPTURED FALLOPIAN TUBE - EX- TENSIVE INFLAMMATION - SCARRING OF RE- MAINING FALLOPIAN TUBE - SIGNIFICANTLY REDUCED CHANCE OF FUTURE PREG- NANCY. The 20-year-old plaintiff contended that the defendant ob/gyn negligently failed to perform laparoscopic surgery when she presented with an ectopic pregnancy of greater size than 4 cm because treating the ectopic pregnancy medically carried a great risk of fallopian tube rupture. The plaintiff contended that she suffered such a rupture less than two weeks after first presenting to the defendant. The plaintiff, who lost the fallopian tube, also maintained that because of extensive inflammation, the other fallopian tube sustained substantial scarring. The plaintiff was also left with very significant surgical scarring. The plaintiff presented to the defendant ob/gyn on Friday, May, 2005 with a history of abdominal pains and vaginal bleeding. A home pregnancy test had been positive for pregnancy. The defendant confirmed the pregnancy through a urine test and a Beta hcg test. A trans-vaginal ultrasound at the doctor's office revealed a 10.1 cm. x 5.8 cm mass in the patient's right adnexa. No intrauterine pregnancy was seen. The impression was to rule out ectopic pregnancy. The plaintiff contended that although the ultrasound did not directly visualize the ectopic pregnancy, it was clear from the size of mass in the adnexa, that the ectopic mass was equal to or greater than 4 cm and should only be treated laparoscopically. The defendant advised the patient to meet him at the hospital the following day because the physicians' office was closed on the weekend. The plaintiff took a voluntary dismissal as to the hospital prior to jury selection. The defendant ob/gyn opted to address the ectopic pregnancy medically with methotrexate, but the drug was not available at the hospital. The plaintiff was told to return to the hospital the following day. Prior to the defendant's arrival, the patient was in a gown and was prepared by the hospital staff for surgery. Her abdominal pain was again noted to have increased from the prior day. The defendant arrived at the hospital, said there would be no surgery and told the patient the best treatment was methotrexate. The defendant told the patient that laparoscopic surgery was not the treatment of choice because in his experience, the ectopic pregnancy could be missed with laparoscopic surgery. He told the patient that she would receive a methotrexate injection at his office the next day, a Monday, with the expectation that such a course would result in a progressive decrease in pregnancy hormones and ultimately terminate the pregnancy. The plaintiff contended that as of the next day, her abdominal pain had increased and that such a sign was further indication of the potential emergent nature of the situation. Over the course of the next several days, the patient returned, and although the hormonal levels were decreasing, it was clear, based upon the increasing pain, that laparoscopic surgery was immediately necessary. The evidence disclosed that on Friday, May 27th, she was told that the Beta hcg level had decreased and that she should return to the office the following week. The plaintiff maintained that she continued to suffer severe abdominal pain. She returned to the office on June 2, 2005 and a sonogram was performed. A right adnexal mass was found measuring 9.6 cm x 6.4 cm. The defendant's partner, who saw her that day, concluded that this was the same mass that was seen by ultrasound on the patient's first office visit. The plaintiff was found to have a ruptured fallopian tube and was taken to the hospital by ambulance. The defendant maintained that the decision to treat the ectopic pregnancy with methotrexate was appropriate, pointing to the decreasing hormonal levels. The defendant further pointed to the fact that an ultrasound taken in the hospital two days after her first office visit did not reveal the mass in the right adnexa. The plaintiff maintained that the absence of such a finding was inconclusive and contended that repeat ultrasounds were necessary. The plaintiff also contended that the jury should consider that a partner of the defendant had concluded that the same mass had been present at the time of the first visit. The plaintiff was found to have a ruptured fallopian tube and extensive inflammation within the abdomen involving the bowel, appendix, both fallopian tubes and ovaries. The subject fallopian tube was excised as was the appendix. The plaintiff contended that the other fallopian tube sustained very significant scarring and that it is doubtful that she will be able to conceive in the future. The plaintiff has no children. The plaintiff further maintained that she is at increased risk of developing further adhesions and future bowel obstruction that would necessitate additional surgery. The plaintiff also contended that the large abdominal scar is permanent. The plaintiff contended that had the defendant performed laparoscopic surgery prior to the rupture, she would not have suffered the decreased chance of becoming pregnant in the future and that she would only have a very small scar near her navel. The jury found for the plaintiff and awarded $1,500,000, including $500,000 for past pain and suffering and $1,000,000 for future pain and suffering. MEDICAL LIABILITY ANALYSIS The defendant had maintained that treating the ectopic pregnancy with methotrexate was proper, pointing to the continuing decreasing levels of pregnancy hormones and denying that any signs or symptoms of an impending rupture were present. The plaintiff, who maintained that she experienced continuing increasing abdominal pain during this approximate two-week period, stressed that although the defendant denied that she was having such symptoms, the records lent significant support to her position. Additionally, the evidence that when the plaintiff visited the hospital the day after her first office visit, she was prepped for surgery, but that the defendant declined to perform surgery, was undoubtedly very significant. In this case, the plaintiff successfully contended that the defendant ob/gyn deviated from acceptable standards of practice in failing to perform laparoscopic surgery when the plaintiff presented with an ectopic pregnancy of greater than four centimeters, primarily because, and in accordance with acceptable standards of practice, failing to treat an ectopic pregnancy surgically at that point carried a great risk of fallopian tube rupture. The plaintiff presented evidence that she ultimately suffered such a rupture less than two weeks after first presenting to the defendant. The plaintiff's experts opined that this occurred primarily because of the failure of the defendant ob/gyn to appropriately and timely perform necessary laparoscopic surgery. As a result of the undue and unwarranted delay in the performance of necessary laparoscopic surgery, the plaintiff sustained a ruptured fallopian tube and extensive inflammation within the abdomen involving the bowel, appendix and both fallopian tubes and ovaries. Regarding damages, the plaintiff successfully contended that her other fallopian tube sustained very significant scarring and that it was now doubtful that the injured plaintiff would be able to conceive in the future. The evidence indicated that at the time of trial, the plaintiff had conceived no children. The plaintiff's experts successfully contended that had the defendant performed laparoscopic surgery prior to the rupture in accordance with the acceptable standard of care, the plaintiff would not have suffered the decreased chance of becoming pregnant in the future and that she would only have a very small scar near her naval as a result of that procedure which was recommended, but not carried out, by the defendant. The evidence adduced at trial indicated that after the almost two weeks of delay in the performance of the absolutely necessary laparoscopic surgery, the plaintiff suffered a ruptured fallopian tube causing very severe abdominal pain. When she returned to the defendant's office, a sonogram was performed determining the existence of a right adnexal mass measuring 9.6 centimeters by 6.4 centimeters, together with a ruptured fallopian tube which required immediate emergency hospitalization and surgery. The plaintiff's experts contended that the jury should consider evidence that a partner of the defendant had actually concluded that the same mass that was ultimately discovered was, in fact, present and was the same mass that was seen on ultrasound at the patient's first office visit with the defendant, but not acted upon at that time 7

8 by the defendant, to the patient's peril. Practitioners are reminded by this case that when they perform ultrasounds, they have a duty to observe and act upon not only positive findings on the ultrasound, but also any and all potentially positive findings requiring further investigation and evaluation. This became particularly relevant in this case where the plaintiff successfully contended that a partner of the defendant had actually concluded that the same mass that was ultimately discovered too late had, in fact, been present on ultrasound at the time of the plaintiff's first office visit with the defendant. Practitioners are also reminded by this case that where a physician who deviates in failing to do that which most physicians under those particular circumstances involved would do in accordance with the acceptable standard of care, then they cannot escape liability based upon the contention that at the time, the practitioner so involved was exercising his or her own medical judgment. In this regard, practitioners are reminded that their right to exercise their own reasonable medical judgment in the course of treatment of a patient must, in fact, be reasonable judgment. A medical judgment that leads a physician to deviate from what most physicians would do under similar circumstances cannot be considered to be reasonable medical judgment. Furthermore, practitioners should take note that whereas an attending practitioner may delay doing that which most physicians would do under the particular circumstances, they cannot expect to avoid liability by arguing that the necessary and appropriate treatment was, in fact, ultimately rendered, but only too late to avoid injury to the patient. In this regard, appropriate and necessary treatment in accordance with acceptable standards of care must be treatment that is rendered in a timely manner so as to avoid injury or further injury to the patient. Practitioners are also reminded by this case that when treating a patient, they have a duty to avoid unnecessary risk to the patient which could be reasonably avoided by making the decision to choose the appropriate choice of procedure that most physicians would choose to undertake in view of the circumstances and the patient's condition at that time and do so in a timely manner. In this case, where the evidence clearly indicated that the plaintiff was suffering from an ectopic pregnancy of a size greater than 4cms., the standard of care clearly mandates the performance of a laparoscopic surgical intervention as soon as possible. In this regard, the defendant practitioner had clearly deviated in waiting almost two weeks to perform the necessary intervention to the point where the patient suffered irreparable injury due to the ruptured fallopian tube and extensive inflammation within the abdomen involving the bowel, appendix, as well as injury to both fallopian tubes and ovaries, which the evidence indicated would have been avoided had the defendant performed laparoscopic surgery in a timely manner prior to the rupture. Finally, in support of the plaintiff's claim of permanent injury and an inability to conceive as a result of the defendant's deviation, the plaintiff presented evidence that she has, in fact, been unable to conceive during the time between the deviation and trial. EXPERTS Plaintiff's ob/gyn expert: Martin Gubernick, M.D. from New York, NY. Bronx County, NY. Gonzalez vs. Dr. G., et al. Index no /05; Judge Sharon A.M. Aarons. Attorney for plaintiff: Edward J. Sanocki, Jr. of Sanocki Newman & Turret, LLP in New York, NY. $1,370,000 VERDICT - PRIMARY CARE - HOS- PITALIST NEGLIGENCE - SURGERY NEGLI- GENCE - FAILURE TO TIMELY DIAGNOSE AND TREAT BOWEL OBSTRUCTION - NEGLIGENT DIAGNOSIS OF BOWEL OBSTRUCTION AS CANCER - WRONGFUL DEATH OF 73-YEAR- OLD PATIENT. In this medical malpractice matter, the plaintiff alleged that the defendants were negligent in failing to properly diagnose the decedent's symptoms of a bowel obstruction which resulted in her untimely death. The defendants denied the allegations and disputed that there was a deviation from acceptable standards of care. The plaintiff's decedent, a 73-year-old female, presented to the defendant's emergency room and came under the care of the defendant hospitalist. The decedent presented with complaints of shortness of breath, poor appetite, nausea, vomiting, diarrhea and a single episode of vomiting blood. She had a complicated medical history which included peptic ulcer and COPD. Diagnostic testing determined that the patient suffered from severe anemia and a lesion in the esophagus. The defendant hospitalist initially suspected esophageal cancer. A repeated gastroscopy two weeks after her initial visit to the emergency room continued to demonstrate a lesion in the esophagus. The decedent returned to the defendants two days after the second gastroscopy with the same complaints as on her first visit. Additional testing determined a small bowel obstruction which was diagnosed by both defendants as colon cancer. Both defendants incorrectly diagnosed the decedent with advanced stage colon cancer. No further testing was done to confirm or repute this diagnosis. Over the next few days at the hospital the decedent continued vomiting and the vomit was foul smelling and brown. The decedent was vomiting fecal matter which aspirated into her lungs. She suffered respiratory arrest and was intubated. Her condition deteriorated and life support was withdrawn by the family. An autopsy determined that the decedent had died of a benign mass which caused an intestinal blockage. No cancer was found in either the esophagus or the colon as diagnosed by the defendants. The plaintiff brought suit against the defendants alleging negligence in failing to properly diagnose the decedent's bowel obstruction and timely perform surgery to relieve the obstruction. In addition, the plaintiff alleged that the defendants were negligent in misdiagnosing the decedent's condition as colon cancer which was advanced and required surgery. The matter was tried. The jury deliberated for eight hours and returned its verdict in favor of the plaintiff and against the defendants. The jury awarded the plaintiff the total sum of $1,370,000 in damages. Practitioners, when rendering a diagnosis, have a continuing duty to take all appropriate steps and testing to rule out the more serious of the potential threatening diagnoses and must do so with dispatch and without undue delay. In this regard, practitioners who simply decide upon what is perceived to be a more serious of the potential threatening diagnoses without confirmation through appropriate testing, as was done in this case, can be considered to have committed a serious deviation, particularly if in doing so, such action delays consideration of the actual ongoing and treatable condition which was ignored to the patient's peril. In this case, the accused practitioners were ultimately determined to have deviated from acceptable standards of practice by incorrectly diagnosing the decedent with advanced stage colon cancer when she was actually suffering from a benign mass which caused the intestinal blockage involved and was actually treatable had the practitioners undertook the treatment in a timely manner. The evidence further indicated that not only did the practitioners incorrectly diagnose the decedent with advanced stage colon cancer, but also seriously deviated by taking no action whatsoever to confirm or repute that erroneous diagnosis. A subsequent autopsy determined that the decedent had, in fact, died of a clearly benign mass which was causing intestinal blockage. In addition, the evidence clearly indicated that no cancer whatsoever was found in either the esophagus or the colon as was the diagnosis by the defendants. Furthermore, the evidence in this case clearly indicated that the defendants failed to question the erroneous diagnosis of colon cancer and negligently failed to perform any further testing to confirm or refute this erroneous diagnosis. Therefore, the patient was deprived of an opportunity to appropriately treat the benign mass that was causing an intestinal blockage. As a result, over the next few days, the decedent unfortunately continued vomiting fecal matter which eventually aspirated into her lungs, causing her to suffer respiratory arrest. Practitioners are reminded by this case that whereas they are not guarantors of arriving at a correct diagnosis in every situation, they are considered to be guarantors of abiding to all appropriate standards of care in arriving at a diagnosis. In this case, these standards specifically and irrevocably demanded that the practitioners involved had a clear obligation to confirm or refute the diagnosis arrived at by available and appropriate testing, which was not done in this case, all of which led to the erroneous diagnosis of non-existent colon cancer, depriving the plaintiff of what could have been a reasonable chance of recovery by appropriate and timely treatment of the benign mass that was causing the intestinal blockage, unquestionably prolonging her life had there been no such deviation. Hampden County, MA. Boyer vs. Dr. M., et al. Case no B; Judge Cornelius J. Moriarty. Attorneys for plaintiff: Andrew C. Meyer, Jr. and Benjamin R. Novotny of Lubin & Meyer in Boston, MA. 8

9 $868,408 VERDICT - PLASTIC SURGERY - FAIL- URE TO PROPERLY PERFORM SKIN RESUR- FACING PROCEDURE - PLAINTIFF SUFFERS SEVERE BURNS TO HER FACE - HYPERBARIC CHAMBER THERAPY - PERMANENT FACIAL SCARRING. In this medical malpractice matter, the plaintiff alleged that the defendant plastic surgeon was negligent in failing to be properly trained in the skin resurfacing procedure that was undertaken on the plaintiff. As a result, the plaintiff sustained severe burns to her face which required hyperbaric chamber therapy. The defendant denied the allegations and maintained that the treatment rendered to the plaintiff was proper. The female plaintiff came under the care of the defendant plastic surgeon for a skin resurfacing procedure. The procedure was to be simple and safe, using plasma from a handheld device to lightly burn the skin which would then peel off leaving a new layer of skin. Almost immediately upon commencing the procedure, the plaintiff began to have unexpected and painful burning. Over the next month it was determined that the plaintiff had developed severe burns as a result of the procedure which were undiagnosed by the defendant. When the burns became infected, the plaintiff had to undergo treatment in a hyperbaric chamber and with a specialist. As a result of the incident, the plaintiff has permanent facial scarring. The plaintiff alleged that the defendant was not qualified to perform the treatment. Investigation disclosed that the defendant had only one day of training on the machine prior to using it on the plaintiff. As a result, the plaintiff alleged that the defendant burned too deeply into the plaintiff's skin. The plaintiff also alleged that the defendant failed to properly inform the plaintiff of the risks associated with the procedure and failed to read her history where she had advised that she had keloid scars. Keloid scars are a contraindication of the procedure. The plaintiff brought suit against the defendant plastic surgeon alleging negligence. The plaintiff alleged that the defendant was negligent in performing the procedure and in failing to properly advise the plaintiff of the risks associated with the procedure so that she could give informed consent. Further, the plaintiff alleged that the defendant was negligent in failing to review the plaintiff's medical history which clearly indicated that she was not a candidate for the procedure. Moreover, the plaintiff alleged that the defendant failed to treat the burns that he had created, causing them to become infected. The defendant denied the allegations of negligence. The defendant maintained that the treatment was proper, that there was no infection and he referred the plaintiff to a specialist in the proper manner. He alleged that the result was poor, but possibly due to a complication. The matter proceeded to trial. All of the experts on both sides, acknowledged the extent of the damages that the plaintiff had sustained. The defendant's own expert testified that the scarring was the worst that he had ever seen. At the conclusion of the trial, the jury returned its verdict in favor of the plaintiff and against the defendant. The jury awarded the plaintiff the total sum of $868,408 which consisted of $364,533 in economic damages and $521,875 in non-economic damages. Practitioners are indeed reminded by this case that although they are not legally the guarantors of a good result in every case that they undertake, they are warranting that they have the adequate training and experience with the particular procedure involved to safely undertake all appropriate and reasonable actions in performance of that procedure in accordance with the relevant standard of care. The plaintiff in this case successfully maintained at trial that the defendant plastic surgeon did not, in fact, have the adequate training and experience to safely handle the particular skin resurfacing procedure that was undertaken on the plaintiff. In support of the claim that the defendant lacked the adequate qualifications and experience to safely perform the particular treatment involved, the plaintiff presented evidence that the defendant had only one day of training on the machine used for the procedure prior to employing its use in the treatment of the plaintiff. As a result, the evidence indicated that the defendant burned too deeply into the plaintiff's skin, although the plaintiff had been assured prior to the procedure that the procedure was simple and safe and was intended to lightly burn the skin which would then encourage a peeling process, leaving a new layer of the skin, which was the objective of the procedure. However, the evidence revealed that almost immediately upon commencing the procedure, the plaintiff experienced unexpected and painful burning and developed severe burns which, in fact, went undiagnosed by the defendant for an extended period. Furthermore, when the burns became infected, the plaintiff was forced to undergo additional treatment in a hyperbaric chamber involving the services of a specialist to help limit the effects of this unfortunate and wrongful application of the procedure by the defendant. The plaintiff maintained that she sustained severe and permanent facial scarring as a result and the defendant's own expert testified during trial that the scarring sustained by the plaintiff was, in fact, the "worst that he had ever seen." Also in this case, the evidence indicated that the defendant had failed to appropriately read the plaintiff's history wherein the plaintiff had advised that she had previously sustained keloid scars, which scarring is known to be a clear contraindication for the performance of the proposed procedure. In this regard, the plaintiff argued that the defendant had clearly deviated in failing to appropriately inform her of this particular risk associated with the procedure, thereby denying her the option of refusing to proceed, which would have been reasonable and expected under the circumstances of facing the potential for a poor result due to the plaintiff's prior history of keloid scarring. Practitioners are reminded that when they perform a particular procedure which has associated known risks, they have the duty to inform the patient well prior to the performance of the procedure of the possibility or even probability of the risks if the patient has a history showing a propensity to suffer the adverse result. A failure to do so would be considered to be a clear deviation from acceptable standards of practice to the potential peril of the patient in accordance with the jury's finding in this case. Practitioners should take note that when they undertake a procedure that is contraindicated because of the patient's known medical history that is recorded and available to the practitioner, in this case indicating that the patient had previously suffered keloid scarring, they cannot avoid liability based upon the argument that they were unaware of that prior history or, in the alternative, that they were unaware of the contraindication for the performance of the procedure involved in view of the patient's history. For this reason, where a practitioner recommends a particular procedure without making any inquiry of the patient as to whether or not he or she suffered any prior condition that would render the procedure contraindicated, they can be considered to have deviated from acceptable standards of practice in not only failing to read the history presented, but further, for failing to even be aware that the prior condition presented a clear contraindication to the performance of the procedure. This case also demonstrates a clear case of lack of informed consent on the part of the patient. Practitioners are once again reminded that where they deviate from acceptable standards of practice in failing to properly and timely inform a patient of the potential for the occurrence of a known risk to a recommended procedure, they can, in fact, incur liability for the occurrence of that risk simply by failing to appropriately advise the patient of the potential for the occurrence of that known risk prior to the performance of the procedure and, therefore, failing to obtain a valid informed consent. Finally, the evidence in this case clearly indicated that the defendant practitioner had failed to treat the burns that he had created after performing the contraindicated procedure, causing the burns to become infected and increasing the injury to the patient. In this regard, the jury found that the very failure to treat the condition brought about by the performance of an inappropriate and contraindicated procedure in a timely manner, causing additional injury to the patient, which was considered to be an additional deviation from acceptable standards of practice. EXPERTS Plaintiff's damages expert: Jeff Stegner, C.P.A. from Danville, CA. Plaintiff's dermatology expert: Richard Fitzpatrick, M.D. from San Diego, CA. Defendant's economics expert: Mark Cohen from Lafayette, CA. Defendant's plastic surgery experts: David Hopp, M.D. from Beverly Hills, CA, and Ronald Iverson, M.D. from San Ramon, CA. Contra Costa County, CA. Winter vs. Dr. J., et al. Case no ; Judge Laurel Brady. Attorney for plaintiff: Bradley Bowles of Bowles & Verna in Walnut Creek, CA. Attorney for defendant: Robert Hodges of McNamara Ney Beatty Slattery Borges & Ambacher, LLP in Walnut Creek, CA. 9

10 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 2 SECTION 1 $58,600,000 VERDICT FAILURE TO PERFORM TIMELY C-SECTION AFTER BIG DROP IN AMNIOTIC FLUID TWO DAYS BEFORE LABOR COMMENCES BREECH POSITION WOULD HAVE MANDATED C- SECTION C-SECTION PERFORMED NEG- LIGENTLY HYPOXIC ENCEPHALOPATHY CEREBRAL PALSY PROFOUND MEN- TAL RETARDATION FEEDING TUBE SPASTIC QUADRIPARESIS. 11. Where the signs and symptoms indicate a clear need for the performance of a C-section on an urgent basis in order to avoid injury or further injury to the patient, regarding liability for an unnecessary delay in the performance of that procedure, which of the following statements are true? a. There can be no liability to the practitioner involved if the necessary procedure is ultimately performed. b. There can be no liability to the practitioner involved if the necessary procedure was performed by the practitioner with only a two-day delay. c. There can be no liability to the practitioner involved if, in their medical judgment, he or she saw no urgency to perform the procedure immediately. d. If the patient s signs and symptoms indicate the need to perform a C-section immediately to avoid injury to the fetus, then a failure to perform that procedure on a STAT basis can incur liability to the practitioner for all of injuries suffered by the infant as a result of any undue delay in performing the c-section. 12. Where a practitioner is faced with accusations of clear liability in a case involving debilitating, permanent injuries to a newborn which can be expected to exceed the practitioner s available insurance coverage, the practitioner so involved should avoid doing which of the following? a. Being aware that lay juries have frequently been known to render enormous verdicts in cases involving debilitating injuries to a child that can go well beyond a practitioner s available insurance coverage. b. Consider the option of entering into a reasonable settlement agreement with the plaintiff within the available insurance coverage limits when faced with accusations of serious, permanent and debilitating injuries to a child with a likely jury award potentially well beyond their available coverage. c. Enter into a settlement with plaintiff which can often have the advantage of putting the matter to rest within the existing insurance coverage and thereby avoid a judgment being assessed beyond the available insurance coverage. d. Reasonably rely on counsel provided by the insurance carrier to undertake and successfully defend the case against them, thereby avoiding all liability, and do nothing further. $7,875,000 RECOVERY EMERGENCY DEPARTMENT PLAINTIFF IS TREATED AND SENT HOME TWICE FOR SHOULDER AND KNEE PAIN PLAINTIFF PRESENTS THIRD TIME WITH SAME COMPLAINTS AND EXHIBITS MENTAL STATUS CHANGES SPINAL TAP DONE BACTERIAL MENINGI- TIS STROKE SEIZURES HEARING LOSS UNABLE TO RETURN TO WORK. 13. Regarding the legal responsibility of an attending practitioner in arriving at a correct diagnosis, which of the following statements are incorrect? a. Practitioners have the responsibility to take all appropriate steps to initially rule out the more serious of the potential threatening diagnoses before deciding upon a less serious diagnosis simply because it is more common and expected. b. It is the serious and threatening nature of the potential condition involved that requires that it be ruled out even where that condition can be considered less likely and expected than the less serious condition erroneously arrived at. c. Practitioners involved in the treatment of a patient initially can generally be considered as being guarantors of arriving at a correct, initial diagnosis in all circumstances. d. Practitioners are not considered guarantors of arriving at a correct initial diagnosis in every case, but are considered to be guarantors of abiding by the appropriate standard of care in ruling out of the more serious of the potentially threatening diagnoses initially before deciding upon a less serious condition because it is more common and expected. 14. Regarding the significance of an attending practitioner s addressing of a potential serious complaint of a patient in a timely manner, which of the following statements are false? a. Practitioners can incur liability even though the patient s complaints were ultimately addressed, if the patient is permitted to deteriorate to a point where she exhibited mental status changes. b. The fact that the practitioners ultimately procured the necessary consult from a specialist does not in any way excuse the practitioners for not having appropriately done so earlier, thereby avoiding the deterioration of the patient as a result of the delay. c. Where the evidence unequivocally indicates that if the practitioners had performed appropriate testing at either of the patient s first two visits, the patient would in all probability have avoided suffering a stroke, seizures, and hearing loss, the fact that the condition was ultimately diagnosed too late to avoid her suffering permanent injury will not excuse the delay in diagnosis. d. There can be no liability for the practitioners involved if the patient s serious complaints were ultimately addressed by hospital physicians. $2,604,224 VERDICT BOWEL PERFORA- TION RESULTING FROM MIGRATION OF SURGICAL TACK INTO SMALL BOWEL FOL- LOWING HERNIA OPERATION FAILURE TO RECOGNIZE PRESENCE OF TACK IN SMALL BOWEL DURING SURGERY FAILURE TO REMOVE TACK FROM WALL OF BOWEL MULTIPLE SURGERIES REQUIRED ON 21- YEAR-OLD MALE PLAINTIFF. 15. Regarding the liability of an attending surgeon in failing to appropriately monitor the location of a surgical tack during a procedure and in failing to realize that the surgical tack had migrated to the small bowel, and failing to take immediate and appropriate action to remove the tack prior to the completion of the surgery, which of the following statements are correct? a. A practitioner can incur liability for failing to monitor the location of a surgical tack in order to appropriately realize that it had migrated into the wall of the small bowel and take immediate action to remove the tack before the conclusion of the surgical intervention. b. In accordance with the court ruling in this case, even in a situation where an adverse event can be said to have occurred by the very nature of the procedure itself, if the practitioner involved fails to take appropriate and timely action to correct such an untoward event, then they can incur liability. c. The fact that the patient signed an informed consent to the procedure and thereby assumed the potential for the occurrence of a known risk to that procedure, they do not legally assume the risks that may be involved for a failure of the practitioner involved to take all appropriate and necessary corrective action to remedy the effects of a particular adverse event. d. All of the above. 16. Where it can be established that a medical practitioner, in the course of the performance of a surgical intervention, deviates from acceptable standards of practice, which of the following statements regarding the practitioner s liability are not true? a. The practitioner involved can be held responsible for all the adverse events that occur in the course of attempting to repair the damage caused by the initial deviation. b. The practitioner involved could incur liability for only those damages or injury to the patient which are immediately and directly attributable to the deviation involved. Continued on next page 10

11 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 2 SECTION 1 c. The practitioner involved can be held responsible for all the medical and surgical complications that subsequently occur which can be attributed to the initial deviation from the acceptable standard of care. d. The practitioner involved can be held responsible for all subsequent surgical interventions that can be attributed directly or indirectly to the initial deviation, as well as any additional complications that might occur during those subsequent surgical repairs. $1,000,000 RECOVERY ONCOLOGY PROSTATE CANCER BIOPSY RESULTS MIS- TAKEN FOR THOSE OF OTHER PATIENT SUFFERING ADENOCARCINOMA UNNECESSARY REMOVAL OF PROSTATE. 17. Where the evidence indicates that a patient underwent an unnecessary radical prostatectomy as a result of the biopsy results of another patient being mistakenly mixed up with that of the patient, regarding liability, which of the following statements are incorrect? a. The practitioner so involved can be held responsible for all of the emotional and physical trauma suffered by the patient for being wrongfully advised that he was suffering from a potentially fatal disease and then undergoing an unnecessary prostatectomy. b. The practitioner so involved can be held responsible for having deprived the patient of a reasonably good chance of successfully resolving any prostate issues through the use of medications without having to undergo an unnecessary surgical intervention including the permanent effects of having his prostate removed. c. The practitioner so involved can be held responsible for performing a significant surgical intervention involving a totally unnecessary removal of the patient s prostate. d. The practitioner so involved will be only liable for the limited costs of the surgical intervention performed by the practitioner. 18. Where a medical practitioner fails to take routine steps to properly identify the patient s test results, and then engages in a significant surgical intervention on the wrong patient, regarding the potential liability of the practitioner involved, which of the following statements are not true? a. The practitioner involved can incur punitive damages at the hands of the judge and jury involved in addition to incurring liability for all of the injuries sustained to the patient. b. Practitioners should be aware that where their conduct is deemed to be sufficiently outrageous, punitive damages can be assessed which may not be dischargeable in bankruptcy. c. Practitioners should be aware that punitive damages can often become the personal obligation of the errant practitioner and may not be payable by the existing liability insurance policy due to the outrageous and personal nature of the conduct involved. d. The fact that a medical practitioner involved in serious medical malpractice litigation can prove that he was insured at the time of the events in question can, in itself, avoid all potential personal liability. $1,500,000 GROSS VERDICT LAPARO- TOMY PAD AND RING RETAINED DUR- ING C-SECTION FAILURE TO X-RAY DURING SEVERAL POST-HOSPITALZA- TION COMPLAINTS OF UNUSUAL PAIN ADHESIONS NON-SETTLING PHYSICAN FOUND 60% NEGLIGENT. 19. Regarding the liability of a practitioner who fails to keep an appropriate count of the pads utilized during surgery and to properly supervise the attending hospital staff to correctly and appropriately check for the retention of any foreign objects at the conclusion of the intervention, which of the following statements are not true? a. A practitioner can reasonably expect to avoid liability by maintaining that he or she had a right to rely upon the count being kept by the count nurse who has the responsibility for insuring that all objects used during an intervention were accounted for at the conclusion of that intervention. b. A practitioner should reasonably expect to incur liability for failing to order appropriate post-surgical testing if the patient s pain not only persists, but seems to be worsening, which should have prompted a referral for x- rays which would have clearly disclosed the presence of a foreign object. c. Since the evidence indicated that the ring that was ultimately discovered was constructed of material that can be readily observed on x-rays, in order to avoid the exact situation as occurred in this case, the failure to order such x-rays was found to be a clear deviation from acceptable standards of care. d. The liability of the ob/gyn was emphasized by evidence that when the patient ultimately visited her general practitioner for the continuing pain, this physician, when confronted with the history and severity of the patient s pain following the procedure, immediately ordered x-rays whereupon a foreign object was detected and surgically removed, all of which could have and should have been done far earlier in this case. 20. Where a practitioner encounters unusual and continuing patient complaints post-procedure not otherwise explained and not addressed for over four months, and which were ultimately diagnosed by another physician as a retained laparotomy pad and ring, which of the following statements regarding the accused practitioner s liability are incorrect? a. An attending practitioner who is performing surgery has a primary duty to not only keep an appropriate count of pads and other instruments utilized in the procedure to be sure that they are appropriately removed, but also has the continuing responsibility of supervising the hospital staff involved in that regard. b. A failure on the part of a practitioner to monitor the hospital staff, particularly with regard to insuring that no foreign objects were retained prior to the culmination of a surgical intervention, is a significant failure that materially contributed to the retention of the foreign object that caused injury to the patient in this case. c. The defendant ob/gyn could reasonably expect to avoid liability by maintaining that he had a right to rely upon the operative count being kept by the surgical nurse indicating an absence of any retained objects following the surgery. d. A count kept by a surgical nurse should be considered as simply a safety net to reduce the chances of retention of foreign objects and should not be solely relied upon by operating physicians, who have the ultimate responsibility to take all appropriate steps to avoid the retention of instrumentation such as laparotomy pads and rings. 11

12 $58,600,000 VERDICT - FAILURE TO PER- FORM TIMELY C-SECTION AFTER BIG DROP IN AMNIOTIC FLUID TWO DAYS BEFORE LABOR COMMENCES - BREECH POSITION WOULD HAVE MANDATED C-SECTION - C- SECTION PERFORMED NEGLIGENTLY - HY- POXIC ENCEPHALOPATHY - CEREBRAL PALSY - PROFOUND MENTAL RETARDATION - FEEDING TUBE - SPASTIC QUADRIPARESIS. This medical malpractice action involved a fetus who was conceived by in vitro fertilization after several prior failed attempts. It was undisputed that, with the exception of a breech position which would have mandated a C-Section, that even without other complications, the pregnancy progressed normally until two days before the C- Section was ultimately performed, when it was determined that the plaintiff lost a great deal of amniotic fluid at 38 weeks six days into the pregnancy. The plaintiff contended that because the mother, who would have nonetheless required a C-Section, was at term, and because the pregnancy was considered high risk because of the in vitro fertilization, a C-Section should have been performed at that time, which was a Friday. The mother had a bicornuate uterus and had gone into labor over the weekend. When the surgery was ultimately performed on Sunday, the ob/gyn realized that the fetus had been compressed into the uterus, rendering it more difficult and taking much longer to complete the section. The plaintiff contended that as a result of the prolonged C-Section, the child suffered the oxygen related injuries. The plaintiff's expert ob/gyn contended that the precipitous drop in amniotic fluid was a clear danger sign, and that in view of the fact that the mother was already at term, a C-Section on Friday was mandated. The defendant contended that hospital policy precludes an elective C-Section before 39 weeks. The plaintiff countered that the procedure should not have been considered elective. The plaintiff also contended that the gestational age was an estimate and that in view of the evidence that the mother was so close to 39 weeks into term, the defendant's position should clearly be rejected. The plaintiff maintained that if the C-Section had been performed on Friday, such injury would have been avoided. The plaintiff further maintained that the mother's bicornuate uterus contributed to the fetus being situated significantly farther to the left right than would normally be the case, and that the performance of a midline incision that would usually be appropriate was not indicated in this situation, rendering the C-Section longer to complete and making it more difficult to extract the baby. The plaintiff's expert further contended that the fetus was compressed extensively into the uterus after the mother went into labor and that emergency steps to remove the baby more rapidly were not made. The evidence reflected that the birth was taped, and although the camera did not focus on the mother and child, the audio reaction by the defendant physician upon observing that the baby was "stuck" in the uterus was "holy shit." It was undisputed that the event that caused the hypoxia injury occurred shortly before the birth. The defendant contended, however, that it was unrelated to the C-Section and caused by an infectious process. The plaintiff countered that all of the subsequent treating physicians had ruled out infection and the plaintiff argued that it was clear that the child suffered a hypoxic insult. The plaintiff contended that the child will permanently be profoundly mentally retarded, will be unable to walk or talk and will permanently require a feeding tube. The plaintiff's proofs reflected that the child will be expected to reach years of age. The plaintiff contended that the costs of care and earnings loss will approximate $8.6 million. The plaintiff further contended that the child recognizes his parents, shows signs of frustration and is experiencing very significant pain and suffering. The jury found for the plaintiff and awarded $58,600,000, including $50,000,000 for pain and suffering and loss of enjoyment of life and $8,600,000 for the costs of care and impairment of earning capacity. MEDICAL LIABILITY ANALYSIS The jury awarded $50,000,000 for pain and suffering and loss of enjoyment of life. The plaintiff emphasized that although the child is profoundly mentally retarded and needs a feeding tube, he is capable of recognizing his parents and expressing emotions and it is felt that the evidence that the child cannot understand the reasons for his distress may well have heightened the jury's response. Additionally, the parents offered detailed descriptions of the day-to-day difficulties and the infant plaintiff was produced in court for a very brief period only, avoiding the risk of the impact being diluted by a more prolonged presence of the child before the jury. Moreover, it is felt the contrast between the horrendous nature of the pain and suffering on the one hand, and the ease at which the difficulties could have been avoided by performing the C- Section on Friday when the mother suffered the precipitous loss of amniotic fluid, heightened the jury response. Further, the evidence that when ultimately performed on Monday, the pressures from labor resulted in the fetus becoming compressed into the uterus, rendering it much more difficult and time consuming to complete the section, clearly also caused a strong jury reaction. Finally, it was undisputed that until the loss of amniotic fluid the Friday before the Monday C- section, there were no abnormalities in the pregnancy. The plaintiff effectively countered the defense position that the child's difficulties were related to an infectious process that started near the time of birth by stressing that all of the subsequent treating physicians had ruled out an infection. In this case involving an alleged failure to timely perform a C-section and an alleged negligent performance of the C-section, it was undisputed that with the exception of a breech position, the pregnancy had progressed normally until two days before the C-section was ultimately performed. The evidence revealed that the decision to perform a C-section was made as a result of a determination that the plaintiff mother had lost a great deal of amniotic fluid at 38 weeks and 6 days into the pregnancy. However, the defendant failed to order a C-section until two days after this determination was made. The plaintiff, through expert testimony, successfully argued that because the mother was at term and because the pregnancy was considered "high risk" due to in-vitro fertilization, the C- section should have been performed on the Friday when it was apparent that the mother had lost amniotic fluid, a full two days prior to when it was actually performed. When the C-section was finally performed on Sunday, the defendant ob/gyn came to the realization that the fetus had been compressed into the uterus, rendering it far more difficult to complete the C-section, extending the length of the procedure significantly to the detriment of the infant plaintiff. Through their experts, the plaintiff successfully contended that as a result of the prolonged nature of the C-section, the fetus suffered oxygenrelated injuries. These experts opined at trial that it was the precipitous drop in amniotic fluid that created a clear danger sign and that in view of the fact that the mother was already at term, the performance of an immediate C-section was absolutely mandated. The evidence further revealed that the event which caused the hypoxia injury had, in fact, occurred shortly before the delivery of the fetus on Sunday, which would have clearly been avoided had the C-section been performed two days earlier. Practitioners are indeed reminded by this case that in situations where the signs and symptoms indicate a clear need for the performance of a medical procedure on an urgent basis to avoid injury or further injury to the patient, then the failure of the practitioner involved to perform that procedure on a STAT basis cannot be excused simply because the procedure was ultimately performed at a later time. It is the urgency of performing the procedure to protect the patient that prevails in these types of cases. Regarding the damages awarded in this case, the jury's unusual rendering of $58,000,000 verdict for the plaintiff's pain, suffering, and loss of enjoyment of life was undoubtedly precipitated by several factors. One factor can be found in the catastrophic injury suffered by the innocent plaintiff child involving permanent and profound mental retardation and the need for a continuous, lifetime feeding tube. Another important factor was the fact that the injuries suffered were undoubtedly heightened by the liability issue in this case indicating how easy it would have been to have avoided all of the catastrophic injuries suffered by the simple performance of the clearly mandated immediate C-section on Friday when the mother first suffered the precipitous loss of amniotic fluid. It is felt that the contrast between the horrendous nature of the injuries suffered by the minor plaintiff and the relative ease with which these injuries could have been avoided by the performance of a timely C-section created the necessary, emotional jury response for an award of this magnitude. Practitioners are again reminded by this aspect of the case that lay jurors sitting in judgment of medical malpractice litigation have been known to render enormous verdicts, oftentimes beyond the ability of the accused practitioner to pay, or more particularly, beyond their available insurance coverage, due to the emotional aspects of the case that are readily apparent to the lay jury. The emotional aspect of a case can often be precipitated by sympathetic reactions on the part of lay jurors for injuries of a very severe, permanent and disabling nature. This is particularly true when the case involves such injuries to a child. In this case, 12

13 the emotional jury reaction was clearly aggravated by the evidence that all of the injuries suffered could have been easily avoided if only the practitioner involved had taken reasonably prompt action in performing a necessary and mandated intervention. Said another way, practitioners would do well to note that in the event their deviation from acceptable standards of practice causes injury to a child, the evaluation of liability and the determination of the amount of damages to be awarded to that innocent child will often be determined, in most cases, by a lay jury, who will not infrequently render huge awards on behalf of a child, particularly when the results of the deviation could have been avoided had the practitioner taken the time to exercise proper medical treatment in a timely manner. Practitioners who might find themselves involved in such a situation are advised, when faced with accusations of serious, debilitating injuries affecting a child, to consider with counsel the option of entering into a reasonable settlement agreement with the plaintiff, rather than chancing a trial with its potential for a strong emotional reaction on the part of the lay jury. As stated earlier, such an emotional jury reaction to cases involving avoidable, catastrophic injuries to children, can often result in the rendering of a devastating damages award. In view of these factors, coming to a settlement has the advantage of rendering a final disposition of the matter fairly and within the existing liability coverage of the accused practitioner involved, thereby avoiding the practitioner from being exposed, as the defendant practitioner was in this case, to a damages award that is undoubtedly well beyond the practitioner's available insurance coverage as well as his ability to personally satisfy. New Haven County, CT. D'Attlio vs. Dr. V. Case no. X10 UWY-CV (CLD); Judge Kevin Dubay. Attorneys for plaintiff: Kathleen Nastri and James D. Horowitz of Koskoff Koskoff & Bieder, PC in Bridgeport, CT. $7,875,000 RECOVERY - EMERGENCY DE- PARTMENT - PLAINTIFF IS TREATED AND SENT HOME TWICE FOR SHOULDER AND KNEE PAIN - PLAINTIFF PRESENTS THIRD TIME WITH SAME COMPLAINTS AND EX- HIBITS MENTAL STATUS CHANGES - SPINAL TAP DONE - BACTERIAL MENINGITIS - STROKE - SEIZURES - HEARING LOSS - UN- ABLE TO RETURN TO WORK. In this medical malpractice case, the plaintiff brought suit against the defendant hospital for failure to diagnose bacterial meningitis despite repeated visits to the emergency department. On March 26, 2005, the 64-year-old female plaintiff went to the defendant emergency department complaining of right shoulder pain. She was treated by physicians there and discharged the same day. Two days later, the plaintiff was transported by ambulance to the defendant hospital with the same right shoulder pain and left knee pain. She was diagnosed with gout and released. The next day, the plaintiff was again rushed by ambulance to the defendant hospital. While at the hospital, the plaintiff exhibited metal status changes. Physicians then performed a spinal tap and the plaintiff was diagnosed with bacterial meningitis. As a result of the bacterial meningitis, the plaintiff suffered a stroke, seizures, and hearing loss. The plaintiff was unable to return to her occupation of nurse educator at the defendant hospital. The case settled before trial for $7,875,000, including $262,356 in past loss of income. MEDICAL LIABILITY ANALYSIS A significant reason that this case settled instead of going to trial was that the plaintiff was a nurse who had significant medical experience and education. She had always felt that there was something more seriously wrong with her. It turned out that she was right. The plaintiff was left with severe injuries as a result of being sent home twice from the E.R. If the defendant hospital had run the proper tests on the first two visits, the plaintiff more than likely would not have suffered the stroke, seizures, and hearing loss. The fact that the plaintiff was unable to return to her occupation and normal life played a large role in the settlement. The fact that the plaintiff was a well-respected nurse who was denied the proper testing and diagnosis would have been a very significant negative for the defendant had the case gone to trial. The degree and severity of complaints emanating from the plaintiff, who was herself an experienced nurse who felt that there was something seriously wrong with her, should have, according to the plaintiff's experts, alerted the emergency department personnel to the potential for an ongoing, serious condition that was not being addressed appropriately and which needed to be addressed immediately, such as the bacterial meningitis which was ultimately determined to have been causing the plaintiff's symptoms. In this regard, the plaintiff's experts submitted reports indicating that affirmative steps should have been taken to rule out the more serious of the potentially threatening diagnoses before deciding upon a far less serious, but far more common and expected condition, such as the initial diagnosis of gout, which was erroneously arrived at in this case. Practitioners are once again reminded by this case of their duty to initially rule out the more serious of the potentially threatening diagnoses before arriving at a diagnosis of a far less serious but more common diagnosis. This duty emanates from the seriousness of that potential condition that could be involved which requires that such a condition be initially ruled out. Practitioners are also reminded that this is so even where the more serious of the potentially threatening diagnoses is far less likely or expected than the less serious condition erroneously arrived at. Although practitioners are not considered the guarantors of arriving at a correct initial diagnosis in every case, they are considered to be guarantors of abiding by the appropriate standard of care required by practitioners in such a situation when arriving at a diagnosis. Practitioners are also reminded by this case of the duty of attending practitioners, before arriving at an initial diagnosis, to take the time to understand and appreciate the significance and degree of the patient's complaints. This may have been particularly relevant in this case because the patient was a medical professional, a nurse with significant experience and education, who was continuing to complain with increasing severity of a potentially serious condition that was not being timely addressed during the two prior visits to the emergency room. Practitioners should take note of the fact that although the patient's complaints were ultimately addressed after the patient was permitted to deteriorate to a point where she exhibited mental status changes, it did not necessarily, from a legal point of view, excuse the defendant emergency department personnel for not conducting a consult sooner to the peril or increased peril of the patient. The evidence in this case further indicated that as a result of the delay in arriving at a correct diagnosis, the plaintiff was left with permanent and severe injuries after having been sent home twice from the E.D. with indications of an increased severity of an ongoing condition needing urgent treatment. Additionally damaging to the defense was the evidence indicating that if the defendant hospital had run the proper tests at either of the first two visits to the E.D. by the plaintiff, the plaintiff would most likely have avoided suffering the stroke, seizures and hearing loss that she ultimately suffered, to her permanent peril. Furthermore, the very fact that the plaintiff is unable, because of her ongoing disability, to return to her occupation and normal life, played a significant role in instigating the settlement of this case. In this regard, the potential effect on a lay jury had they been called upon to decide this case involving a plaintiff who was, in fact, a well-respected nurse who, because of the defendants' deviations, was denied proper testing and diagnosis in accordance with expert testimony, would have been a very significant negative for the defense to overcome had the case actually gone to a trial and verdict on the issues presented. The fact that the plaintiff's statements to the accused practitioner repeatedly indicating her belief as an experienced registered nurse that she was suffering from a serious condition that was not being properly addressed by the treating practitioners undoubtedly contributed to the relatively significant settlement in this case. Cook County, IL. Rosemary Mittenthal and Robert Mittenthal vs. Swedish Covenant Hospital, et al. Case no. 05 L Attorneys for plaintiff: Mark E. McNabola and Adria E. Mossing of Cogan & McNabola, P.C. in Chicago, IL. Attorneys for defendant: Mark Lura, Esq. and Steve Swanson, Esq. of Anderson, Rasor & Partners in Chicago, IL. $2,604,224 VERDICT - BOWEL PERFORATION RESULTING FROM MIGRATION OF SURGI- CAL TACK INTO SMALL BOWEL FOLLOWING HERNIA OPERATION - FAILURE TO RECOG- NIZE PRESENCE OF TACK IN SMALL BOWEL DURING SURGERY - FAILURE TO REMOVE TACK FROM WALL OF BOWEL - MULTIPLE SURGERIES REQUIRED ON 21-YEAR-OLD MALE PLAINTIFF. 13

14 In this medical malpractice matter, the plaintiff maintained that the defendant hospital and surgeon were negligent in allowing surgical tack to move into the plaintiff's small bowel during hernia surgery and in failing to take action to recognize and remove the tack. The plaintiff suffered a perforated bowel which required multiple surgeries to repair. The defendant denied the allegations and alleged that the injury the plaintiff suffered was a known risk of the procedure to which he had given informed consent. The 21-year-old male plaintiff was a patient at the defendant hospital under the care of the defendant surgeon for laparoscopic hernia surgery. After the surgery, it was determined, based upon the plaintiff's symptoms, that surgical tack from the procedure had migrated into the plaintiff's small bowel, causing a perforation. As a result of the incident, the plaintiff was required to undergo a total of eight additional surgical procedures. The plaintiff brought suit against the defendants alleging negligence. The plaintiff alleged that the defendants were negligent in failing to properly monitor the location of the surgical tack during the procedure, in failing to realize that the surgical tack had made its way into the plaintiff's small bowel and remove it; and in failing to properly suture the lining of the plaintiff's stomach. The defendants denied the allegations of negligence. The defendants contended that the migration of surgical tack is a known complication of this type of surgery. The defendants maintained that there was no deviation from acceptable standards of care and the plaintiff gave informed consent for the procedure with its inherent and known risks. The matter was tried over a period of three days. The jury deliberated for nine hours and returned its verdict in favor of the plaintiff and against the defendants. The jury determined that the defendants were both liable. The jury awarded the plaintiff the total sum of $2,604,224 in damages consisting of $2,000,000 for pain and suffering; $586,244 for medical expenses and $17,880 for loss of earning capacity. MEDICAL LIABILITY ANALYSIS Due to the migration of the surgical tack, the plaintiff had to undergo eight more surgical procedures. As a result of the blockage, he developed another hernia which caused another bowel obstruction. Due to an infection that developed following the surgery, the plaintiff was a patient in the intensive care unit on a breathing tube. He also alleged to have undergone an ileostomy and had an open abdominal wound for a week. The plaintiff contended that each subsequent surgery brought more problems to the plaintiff. The second surgery caused another bowel obstruction, and during the third surgery, the defendant was negligent in failing to properly repair a tear which was causing the plaintiff's bowel contents to leak into his abdomen. As a result of the numerous surgeries and resulting complications, the plaintiff maintained he was at an increased risk for additional bowel obstructions from surgical adhesions. This could cause the plaintiff to undergo even more abdominal surgery in the future. Moreover, as a result of the defendants' negligence and the complications following the surgeries, the plaintiff lost seven months from his job as a mechanic. The defendants maintained that it is a known surgical risk that the titanium tack which is used to close abdominal wounds can become loose over time. The defendants maintained that there was no deviation from acceptable standards of care and rather, the injury sustained by the plaintiff was a known complication of the procedure he underwent. In this case, the 21-year-old male plaintiff patient came under the care of defendant surgeon for laparoscopic hernia surgery at the defendant hospital. The evidence indicated that it was only after the surgery was completed that it was determined, based upon the patient's symptoms, that a surgical tack used in the procedure had, in all probability, migrated into the plaintiff's small bowel, causing a significant perforation. The evidence further indicated that as a result, the plaintiff was required to undergo a total of eight additional surgical procedures. The plaintiff instituted legal action against the defendants based upon the allegation that the defendant operating surgeon deviated in failing to properly monitor the location of the surgical tack during the procedure, particularly in failing to timely realize that the surgical tack had migrated into the plaintiff's small bowel and then failing to take immediate and appropriate action to remove the tack from the wall of the bowel. The defendant surgeon attempted to avoid liability by presenting expert testimony to the effect that the migration of the surgical tack is a known complication to this type of surgery and in itself, presented no particular evidence of deviation from acceptable standards of practice, but rather, was an acceptable complication to the intervention. Plaintiff's counsel, through expert testimony, successfully argued that the defendants were nonetheless negligent and had deviated from acceptable standards of practice by failing to properly monitor the location of the surgical tack during the procedure so as to appropriately and timely realize that the surgical tack had migrated into the wall of the small bowel and then take appropriate action with that realization to remove it before the conclusion of the surgical intervention. The evidence clearly indicated that the realization that the surgical tack had, in fact, migrated into the patient's small bowel, causing a perforation, was only made after the surgery had been completed and the surgical site had been closed. The plaintiff's expert opined that this constituted clear evidence that the defendants were, in fact, negligent for failing to properly monitor the location of the surgical tack during the procedure and in further failing to realize that the surgical tack had already made its way into the plaintiff's small bowel and remove it in a timely manner before the completion of the surgery. Nonetheless, the defendants continued to deny these allegations with their own contention that the migration of the surgical tack is a known complication of the surgery involved that can and does occur as a result of the very nature of the procedure itself in the absence of any deviation. However, the plaintiff's experts countered by pointing out that in accordance with acceptable standards of practice, even where such an adverse event can and does occur by the very nature of the procedure itself, if the practitioner involved actually fails to take appropriate and timely action to correct such an untoward event, they can, in fact, incur liability for such a failure. The defense had also attempted to avoid liability by pointing out that the plaintiff had given his informed consent to the procedure and, therefore, automatically assumed all of the known risks inherent in that procedure. Practitioners should take note that this case clearly points out, in accordance with the judge's rulings and the ultimate decision, that even in situations where a patient signs an informed consent and thereby assumes the potential for the occurrence of the known risks to that particular procedure, they do not legally assume the risks that may be involved for any failure on the part of the practitioner involved to take all appropriate and necessary corrective actions to remedy the effects of that particular adverse event. On damages, the evidence indicated that as a result of the defendants' alleged deviations, the patient had to undergo eight more surgical interventions and that further, as a result of the blockage involved, developed another hernia which caused another bowel obstruction. In addition, the evidence indicated that as proximate cause to the initial deviation, the infection that developed following the surgery resulted in the patient's admission into the intensive care unit and had to be placed on a breathing tube for an extended period of time. Based upon this evidence, the plaintiff successfully contended that as a result of defendants' deviation, each subsequent surgery the patient underwent brought additional problems to the plaintiff's overall well-being. In this regard, the second surgery caused another bowel obstruction, and during the third surgery, the defendant was deemed to have deviated in failing to properly repair a tear which was causing the plaintiff's bowel contents to leak into his abdomen. The plaintiff's expert opined that as a result of the numerous surgeries and their resulting complications, the plaintiff is at an increased risk for additional bowel obstruction due to surgical adhesions. Practitioners are indeed reminded by this case that where it can be established that a defendant practitioner had deviated from acceptable standards of practice in the performance of a surgical intervention, he or she can be held responsible for all of the adverse events that occur as a result of attempts to repair the damage caused by the initial deviation, including all of the medical and surgical complications that subsequently occur that can be attributed to the initial deviation from acceptable standards of care. EXPERTS Plaintiff's general surgery expert: Steven I. Cohen, M.D. from Providence, RI. Defendant's infectious disease expert: Philip C. Carling, Jr., M.D. from Dorchester Center, MA. Defendant's surgery expert: Matthew H. Hutter, M.D. from Boston, MA. Worcester County, MA. Jorge Rosado vs. UMASS Memorial, et al. Attorney for plaintiff: Gregg J. Pasquale of Keches Law Group in Taunton, MA. 14

15 $1,000,000 RECOVERY - PROSTATE CANCER BIOPSY RESULTS MISTAKEN FOR THOSE OF OTHER PATIENT SUFFERING ADENOCARCI- NOMA - UNNECESSARY REMOVAL OF PROSTATE. The plaintiff, whose blood test showed his prostate serum antigen (PSA) level was elevated at 4.5, and whose PSA had increased from 1.9 slightly more than one year earlier, was referred to a non-party urologist who noted urinary tract symptoms including weak and intermittent stream and nocturia, and who recommended a prostate biopsy. It was undisputed that the biopsy was indicated and properly performed. The results were positive and the plaintiff underwent a radical prostatectomy with a robotic approach. It was determined shortly thereafter, that the plaintiff's biopsy results were mixed up with another patient and that although the plaintiff had a potentially pre-cancerous condition, the surgery was not indicated. The evidence disclosed that the plaintiff had undergone a 12 core prostate biopsy under ultrasound guidance. The defendant pathologist reported that 2 of the 12 cores were positive for adenocarcinoma. The plaintiff then underwent a radical prostatectomy with a robotic approach. The prostate was sent to pathology and it was found that instead of cancer, the plaintiff had high grade prostatic intraepithelial neoplasia (HGPIN) throughout the prostate gland. Although potentially a precursor to cancer, HGPIN is a common condition which does not warrant prostatectomy. No invasive carcinoma was present. The plaintiff would have pointed to the defendant hospital's investigation that reflected that the plaintiff's prostate biopsy results were originally resulted and attributed to the wrong patient. The proofs reflected that the pathologist was reviewing two prostate biopsies, each with 12 slides and that when documenting the findings, the requisitions were transposed, and the findings were attributed to the wrong patient. The plaintiff would have contended that the physical and emotional turmoil associated with being advised that he had a potentially fatal disease and needed radical surgery warranted a very significant recovery in and of itself. The defendant would have maintained that the damages were minimal in that the plaintiff did not have cancer, and therefore did not suffer any delay in diagnosis of cancer, and in fact had a normal life expectancy. The defendant further contended that the plaintiff's complaints of erectile dysfunction and urinary leakage were noted to exist even before the prostate biopsy and maintained that the symptoms were not causally related to any negligence or mix up in reporting of the pathology results. The plaintiff would have maintained that the symptoms were more severe after the surgery. The plaintiff would have also argued that the jury should consider that he was deprived of the chance of successfully resolving the issues through medication. The case settled prior to trial for $1,000,000. MEDICAL LIABILITY ANALYSIS The defendant would have contended that the plaintiff had the same symptoms prior to the removal of the prostate and would have contended that the damages that were causally related to the mistake were minimal in nature. It is felt that if the case had not settled, a jury, presented with undisputed evidence of such a negligent mistake as the biopsy results becoming mixed up with that from another patient probably would have responded strongly and that by resolving the case, the parties were able to avoid the uncertainty in the jury result, which, in a case of this manner, was thought to be especially unpredictable. In this case, the evidence unequivocally indicated that the plaintiff patient underwent an unnecessary radical prostatectomy as a result of biopsy results of another patient being mistakenly mixed up with the plaintiff's, and that the significant surgery, therefore, was clearly unnecessary and was not in any way indicated. In this regard, the hospital's subsequent investigation into the matter came to the conclusion that the plaintiff's prostate biopsy results were, in fact, attributed to the wrong patient. In this regard, the defendant pathologist was apparently reviewing two prostate biopsies, each with 12 slides, and that when documenting the findings, the requisitions were negligently transposed and the findings were attributed to the wrong patients. As a result, the evidence unequivocally indicated that the plaintiff patient suffered the totally unnecessary removal of his prostate due to the absolute deviation of the oncologist who negligently transposed the biopsy results when they were really from another patient suffering from endocarcinoma, resulting in permanent injury to the plaintiff. The plaintiff, through his experts, successfully argued that the physical and emotional trauma associated with initially being advised that he was suffering a potentially fatal disease and, therefore, was in dire need of radical surgery, was significantly aggravated by the fact that subsequent to the performance of this surgery, he was informed that it was unnecessary. The plaintiff successfully claimed that he was deprived of the chance of successfully resolving any prostate issues he may have been suffering through the use of medication without having to undergo surgery and suffering the permanent effects of having his prostate unnecessarily removed. Practitioners would do well to note that there can be little question in this case that had it not been settled and a jury was presented with the undisputed evidence of such a grossly negligent mistake being made, where the biopsy results acted upon were mixed up with that of another patient, to the permanent detriment of the plaintiff patient, the lay jury would have undoubtedly responded strongly on behalf of the plaintiff patient by rendering an absolutely significant verdict. In this regard, practitioners should also be aware that had a case of this type gone to a full trial, the court, upon request of plaintiff's counsel, would have, in all probability, advised the jury of the potential for the finding of punitive damages, which in itself could involve, in a case of this nature, a punitive award many times the actual compensatory award. In this regard, practitioners are again reminded that in the course of treating a patient, if they fail to take routine steps, such as proper identification of a patient's test results to avoid committing horrendous error by engaging in a significant surgery on the wrong patient, they could be rendered responsible for this conduct in the form of punitive damages at the hands of the judge and jury. Punitive damages, once assessed, are not dischargeable in bankruptcy in most jurisdictions because of the intentional nature of the conduct being sufficiently egregious, and will often become the personal obligation of the errant practitioner incurring such punitive damages. Of significance is the fact that punitive damages are generally not covered by the average medical liability insurance policy. This is primarily due to the intentional nature of the act involved, or alternatively, the seriously indifferent nature of the act involved that brought about the charge of punitive damages. Such punitive damages can warrant disclaimer of insurance otherwise available on the basis of the fact that the act committed bringing about the assessment of punitive damages, by its nature, may be said to be tantamount to intentional disregard for the rights of the patient. Finally, practitioners are advised that even in the absence of the invocation of punitive damages, which was clearly possible in this case had it not been settled, it is clear that the undisputed nature of the particular negligence involved of mixing up the biopsy results with that of another patient resulting in unnecessary, radical surgery being performed, would undoubtedly have caused a strong jury response if the matter had gone to trial. Typically, such strong jury responses are often reflected in the size of the award rendered. Therefore, the advisability of reaching a settlement if at all possible, as was arrived at in this case for a significant sum, will avoid the possibility that a jury sitting in judgment of the case might, as they have been known to do, render an emotionally charged verdict that is so high that it would cause the court to intercede, which in turn can result in a long and drawn out appeals process. Settlements of these types of cases can often benefit both the plaintiff and the defendant by avoiding the potential alternative of an extremely large and emotionally charged jury verdict requiring court intervention and subsequent drawn out appeals process. Suffolk County, MA. Case info omitted upon request. Attorneys for plaintiff: Andrew C. Meyer and William J. Thompson of Lubin & Meyer PC in Boston, MA. $1,500,000 GROSS VERDICT - LAPAROTOMY PAD AND RING RETAINED DURING C-SEC- TION - FAILURE TO X-RAY DURING SEVERAL POST-HOSPITALIZATION COMPLAINTS OF UNUSUAL PAIN - ADHESIONS - NON-SET- TLING PHYSICIAN FOUND 60% NEGLIGENT. This action involved a plaintiff, 39 at the time, who had undergone a planned C-section for the delivery of twins. The babies were born healthy. The plaintiff contended that the defendant ob/gyn negligently failed to keep count of the pads and negligently failed to supervise the hospital staff. The plaintiff further contended that she complained about unusual pain in two or three office 15

16 visits in the approximate four-month period following the birth, and that the defendant ob/gyn negligently failed to take an X-ray, which would have disclosed the foreign object. The pad and ring were detected approximately four and a-half months after the C-section when the plaintiff visited her general practitioner who ordered an X-ray. The plaintiff contended that she developed adhesions and will suffer permanent pain that is heightened upon ovulation. The plaintiff also named the hospital as a defendant. The case against this defendant settled prior to trial for an undisclosed sum. The defendant ob/gyn maintained that he had a right to rely upon the count kept by the nurse and denied that he was negligent. The plaintiff contended that the jury should consider that a physician performing surgery has the primary duty to keep track of his "work tools," much like the responsibility had by a worker such as a carpenter. The plaintiff maintained that such a count by a nurse should be considered a "safety net" to reduce the chances of retention. The plaintiff further contended that the defendant physician had the duty to supervise the hospital staff and had he discharged such responsibility appropriately, the foreign objects would not have been retained. The defendant's ob/gyn contended that the hospital staff's negligence was a significantly greater cause of the incident than claimed by the plaintiff. The plaintiff elicited testimony from the plaintiff's expert during cross examination that the physician had the primary duty to keep track of the pads. The plaintiff further contended that the defendant physician should have ordered X-rays at one of the visits over the ensuing approximate fourmonth period in which the plaintiff complained of very significant pain. The plaintiff argued that the jury should consider that the pain was sufficiently severe to prompt a referral for physical therapy. The plaintiff also pointed out that, in order to help avoid similar situations, the rings are constructed of material that would be seen by X-ray. The plaintiff related that upon the continuation of pain, she ultimately visited her non-party general practitioner who immediately ordered X-rays and the foreign object was detected and removed. The plaintiff maintained that the delay in diagnosis caused an indolent infection and the gradual development of scar tissue around the retained objects, as well as adhesions. The plaintiff related that before the pad and ring were detected, she could feel a lump in her abdomen. The plaintiff contended that scar tissue and adhesions had formed around the foreign object and that the plaintiff will permanently suffer extensive pain that is heightened upon ovulation. The plaintiff had retired from the New York Police Department prior to the C-section, relocated to Florida to be close to her extended family, and was a homemaker. The plaintiff maintained that the jury should consider that she has great difficulties performing everyday activities such as housework. The jury found the non-settling defendant ob/gyn 60% negligent and rendered a gross award of $1,500,000, including $850,000 for past pain and suffering and $650,000 for future pain and suffering. MEDICAL LIABILITY ANALYSIS The jury assessed 60% liability against the non-settling defendant ob/gyn, notwithstanding this defendant's argument that he had the right to depend upon the nurse's count. The plaintiff, who maintained that the primary responsibility rests with the physician, and that the nurse's count should be used as a safety net, analogized the physician's duty to that of a carpenter or other craftspeople who have the obligation to keep track of their tools. Additionally, the plaintiff underscored her contentions by eliciting testimony from the defense expert, who indicated on direct examination that the duties of the settling hospital staff were very significant, and that the ob/gyn's responsibilities included supervising the hospital staff. Finally, the evidence that the defendant failed to order an X- ray despite several visits over the four-month period following the birth, and that the presence of the pad and ring were only detected after the plaintiff visited her non-party doctor who ordered an X-ray, was clearly especially significant. In this case, the plaintiff's experts successfully opined that the defendant non-settling practitioner had clearly deviated in failing to order x-rays at any one of three office visits over an approximate four-month post-procedure period. During this time, the patient's pain not only persisted, but seemed to be getting worse. In this regard, although the pain was sufficiently severe to prompt a referral for physical therapy, the defendant negligently failed to take any x-rays, which it was contended would have disclosed the presence of a foreign object. The plaintiff's experts successfully pointed out that the ring which was discovered is specifically constructed of material that can be readily seen on x-rays in order to avoid this exact situation. The evidence further indicated that the patient ultimately visited her non-party general practitioner for the continuing pain. This physician, when confronted with her history and the severity of the patient's pain following the procedure, immediately ordered x-rays whereupon the foreign object was quickly detected and surgically removed. The plaintiff's medical experts maintained that the delay in diagnosis and removal of the ring caused an indolent infection and a gradual development of scar tissue around the retained object, in addition to significant adhesions. The experts opined that the scar tissue and adhesions will cause the patient to suffer permanent, extensive pain at that site upon ovulation in the future. Practitioners are indeed reminded by this aspect of the case that when they encounter complaints from a patient regarding unusual, continuing pain following a procedure which is not otherwise explained, a failure to take any further action to diagnose the cause of that pain can well be deemed, as it was in this case, a serious deviation from acceptable standards of practice. This determination of deviation leaves the accused practitioner responsible for all the adverse results and circumstances that occurred as a result of the undue delay in diagnosis and corrective treatment. In situations such as this, practitioners have the affirmative duty to take all appropriate action to determine the cause of a patient's unexplained and continuing symptomatology. Also in this case, the defendant ob/gyn attempted to avoid liability by maintaining that he had, in fact, a right to rely upon the operative count being kept by the nurse and denied that he was in any way negligent or had deviated from acceptable standards of practice which caused injury to the plaintiff. However, the plaintiff's experts countered that the jury should consider that any physician who is performing surgery has a primary duty to not only keep an appropriate count of the pads and other instrumentation utilized in the procedure to be sure that they are appropriately removed, but also has the responsibility of supervising the hospital staff involved in the intervention in that regard. Practitioners should take note of the plaintiff's expert's contentions that a failure of a practitioner to properly monitor the hospital staff, particularly with regard to making sure that no foreign objects were retained prior to termination of a surgery, is a significant failure that materially contributed to the retention of the foreign object and caused injury to the plaintiff in this case. In this regard, the plaintiff's expert successfully maintained that a count kept by a nurse should be considered as simply a safety net to reduce the chances of retention of foreign objects and should not, in itself, be solely relied upon by the physician, who has the ultimate responsibility to take all appropriate steps to avoid the retention of instrumentation such as laparotomy pads and rings. EXPERTS Plaintiff's ob/gyn expert: Michael Plotnick, MD from Johnstone, CO. Plaintiff's radiological expert: Marc Hamet. Defendant's ob/gyn expert: Mark Mendelowitz, MD from Tarrytown, NY. Bronx County, NY. Santiago vs. Dr. G. Index no. 7682/06; Judge Sharon AM Aarons. Attorney for plaintiff: Steven T. Halperin of Halperin & Halperin, P.C. in New York, NY. 16

17 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 3 SECTION 1 $36,737,660 VERDICT INCLUDING $18,000,000 PUNITIVE AWARD FAILED ABORTION RESULTS IN CHILD BORN AT 22 WEEKS WITH SEVERE CERE- BRAL PALSY WRONGFUL BIRTH CLAIM FOR PAST MEDICAL AND FUTURE LIFE CARE EXPENSES FOR CHILD PUNI- TIVE DAMAGES CLAIM. 21. Where an attending practitioner fails to be in attendance over an extended 11-hour period during an on-going late-term abortion procedure, bringing about the ultimate delivery of a profoundly and permanently disabled child, which of the following statements are true? a. A practitioner so involved can be held responsible in compensatory damages for all of the past and future lifetime medical costs incurred for the necessary care of the seriously injured and impaired child. b. A practitioner can also be held responsible for any emotional injury to the mother precipitated by the defendant s deviations where the mother is caused to bear and raise a severely impaired child that otherwise might have been successfully aborted, or alternatively, delivered appropriately and successfully. c. Where a practitioner s conduct is clearly outrageous and unwarranted for failing to be in attendance over an 11-hour period, resulting in an unintended delivery of a child suffering significant hypoxia and severe cerebral palsy, the practitioner so involved can incur punitive damages in addition to compensatory damages which can become the personal obligation of the practitioner. d. All of the above. 22. Where an accused practitioner s conduct can be said to be sufficiently outrageous as to justify the awarding of punitive damages, which of the following statements are false? a. Practitioners should be aware that where their conduct reaches the necessary criteria for the awarding of punitive damages, such damages will be awarded in addition to the compensatory damages award. b. Because punitive damages are only awarded in instances of wrongful conduct that is sufficiently outrageous as to be considered tantamount to being intentional, they may not be covered by the average medical malpractice liability insurance policy. c. In many jurisdictions, punitive damages may be payable only individually by the practitioner him or herself and not by any existing malpractice insurance policy primarily because of the intentional nature of the wrong doing which brought about the awarding of punitive damages. d. Practitioners can expect that they may be rendered immune from any and all punitive damages awarded by appropriately filing of a petition of personal bankruptcy, particularly involving those punitive damages. $3,000,000 CONFIDENTIAL RECOVERY FAILURE TO TIMELY DIAGNOSE AND TREAT BRAIN BLEED ANEURYSM AND SUB- ARACHNOID HEMORRHAGE CATA- STROPHIC BRAIN INJURY. 23. Where a 29-year-old female patient is transported by ambulance with recorded symptoms of severe headache, vomiting and diminished consciousness, but a wrongful history is given that the patient was suffering from a migraine and the patient is then treated for migraine and released with no diagnostic testing performed, regarding liability, which of the following statements are incorrect? a. When undertaking to treat a 29-year-old patient in an emergency department setting for symptoms recorded as severe headache, vomiting and diminished consciousness, it is particularly important for the practitioner involved to obtain a complete and full history directly from the patient whenever possible, rather than relying on a history provided by ambulance personnel. b. There can be no liability to the practitioner involved if at the time of arriving at the erroneous diagnosis, the practitioner was relying on the history obtained from the ambulance driver to the effect that the patient was suffering from a migraine. c. Where a patient s history includes severe and unaccounted for headaches, vomiting and diminished consciousness, the practitioner should take appropriate steps to rule out the most threatening of the potential differential diagnoses prior to arriving at a diagnosis based upon an erroneous history given by ambulance personnel. d. Practitioners in an emergency department should be aware that not only do they have the duty to obtain the patient s history on their own, and order all appropriate testing that the history calls for, but they also have the duty to appropriately and timely make any referrals to specialists relevant to the patient s complaints, history and on-going symptoms. 24. Regarding the utilization of the Futility of treatment defense by an accused practitioner in an attempt to avoid liability for a clear deviation, which of the following statements are false? a. The futility of treatment defense will often be rejected where there is clear and unequivocal evidence that if the patient had been properly and timely diagnosed and immediately transferred to a larger medical facility for surgery, she would not have sustained the severe brain injury that she ultimately suffered. b. The futility of treatment defense is rarely effective when it can be shown that the accused practitioner had not performed timely and appropriate diagnostic testing and treatment, particularly where there exists expert testimony to the effect that such testing and treatment may well have altered the outcome. c. Jurors sitting in judgment of medical malpractice litigation generally tend to believe that patients are entitled to all reasonable attempts to ameliorate serious conditions even where there exists a less than full chance of total recovery. d. The futility of treatment defense to defend inappropriate care can generally expect to be effective in all cases where appropriate treatment not rendered may not have been 100% successful. $2,599,000 VERDICT NEGLIGENT FAILURE OF PEDIATRICIAN TO REFER TEN-YEAR-OLD PATIENT TO EMERGENCY ROOM UPON PRE- SENTATION WITH SYMPTOMS OF APPEN- DICITIS APPENDIX RUPTURES TWO DAYS LATER. 25. Regarding the legal responsibility of the attending physician in rendering a diagnosis, which of the following statements are incorrect? a. Practitioners in the course of arriving at a correct diagnosis have the duty and responsibility to take timely and appropriate action to rule out the more serious of the potential threatening diagnoses before deciding upon a less serious diagnosis simply because that diagnosis is more common and expected. b. When a practitioner fails to initially rule out the more serious of the potentially threatening diagnoses that may be involved in favor of a far less serious diagnosis, resulting in injury to the patient, they may avoid liability by arguing that at the time, they were exercising their own medical judgment. c. Practitioners should be aware that it is the potential danger to the patient resulting from a failure to rule out the more serious diagnosis initially that prevails. d. The more threatening and dangerous of the potential differential diagnoses must be initially ruled out even though they may be far less common or expected due to the severe consequences to the patient if they are not. 26. Regarding the legal responsibility of the attending practitioner in rendering a diagnosis, which of the following statements are not true? a. Attending practitioners can be legally charged with arriving at a correct diagnosis in every case they undertake. b. Practitioners in rendering a diagnosis are charged with the responsibility of initially ruling out the more serious of potential threatening diagnoses before deciding upon a less serious diagnosis even where that less serious diagnosis is far more common and expected. Continued on next page 17

18 MEDICAL LIABILITY ALERT TEST QUESTIONS TEST 3 SECTION 1 c. Practitioners should be aware that when in the course of arriving even at a correct diagnosis, if they engage in unwarranted delay, they can still incur liability for the resulting complications to the patient occasioned by that delay. d. Where there exists an unwarranted delay in rendering a correct diagnosis, the practitioner involved can be held responsible for any additional procedures, pain, suffering, or permanent disability suffered by the patient as a result of that unwarranted delay. $2,000,000 VERDICT DELAY IN DIAGNO- SIS AND TREATMENT OF COLON CANCER CLAIMED ERRONEOUS DIAGNOSIS OF BLEEDING HEMORRHOIDS CHEMOTHERA- PY RADIATION COLON SURGERY. 27. Regarding the importance of an attending practitioner to make full and complete entries into the record acknowledging that a significant recommendation was actually made, which of the following statements are false? a. A failure to enter into the medical record that a particular and significant recommendation for treatment was made can lead to the unfortunate conclusion that no such recommendation was actually made. b. Since practitioners can legally refer a patient for treatment, such as for a recommended colonoscopy, without making an appropriate entry in the patient s record to that effect, the actual verbal recommendation of referral for a colonoscopy can expect to be established by testimony of the accused practitioner even without any entry whatsoever being made in the patient s record to that effect. c. Since a practitioner s important recommendations to a patient are characteristically and usually entered into the medical record, a failure to make such an entry can lead to the inference that no such recommendation was actually made, otherwise it would have been entered into the record, which is generally required of all responsible physicians. d. From a safe practice and liability point of view, when a practitioner is involved with a patient in need of evaluation or testing which could be significant to their health and well being, the standard of care requires that such testing be performed in a timely manner and recorded in the medical record. 28. Regarding the legal responsibility of a patient who, as a trained nurse, failed to question her treating physician s inappropriate treatment, which of the following statements are correct? a. The fact that the plaintiff herself was a trained nurse does not, in accordance with the ruling of the court in this case, constitute contributory negligence for failing to question the trained physician s actions in failing to recommend a timely colonoscopy. b. A patient s experience as a trained nurse can, in fact, be seen to have particularly left her to rely upon the actions of the defendant physician, which in itself was not considered sufficiently unreasonable conduct to warrant a charge of contributory negligence against her for failing to question the decisions and actions of the practitioner. c. The court appropriately ruled that the patient s position as a registered nurse would not render her contributory negligent for her reliance upon the actions and opinions of a fully trained physician. d. All of the above. $450,000 RECOVERY NEGLIGENT PER- FORMANCE OF UNNECESSARY SURGERY ON THE DECEDENT FAILURE TO PROP- ERLY PERFORM COLON SURGERY, CAUS- ING A COMPLICATED POST-OPERATIVE COURSE RESULTING IN DEATH WRONG- FUL DEATH OF 58-YEAR-OLD FEMALE. 29. Regarding the liability of a practitioner for performing a clearly unnecessary surgical intervention, which of the following statements are incorrect? a. Where a practitioner is proven to have performed clearly unnecessary surgery, he or she can be held responsible for all the complications and poor results of that surgery regardless of whether or not there was any provable deviation in the actual performance of the surgical intervention. b. Where there is proof of the performance of an unnecessary surgery, the practitioner so involved can be held responsible for all the accepted complications to that surgical intervention that occurred by the very nature of the procedure itself. c. There can be no liability to the practitioner involved unless it can be proven that there was actual deviation in the performance of the procedure. d. Where there is no provable deviation in the performance of a surgery, if it can be proven that the surgery was unnecessary, then the practitioner involved can be held responsible for all the complications and poor results to that surgery. 30. Where an accused practitioner is found responsible for performing a clearly unnecessary surgical intervention for a condition the patient did not suffer from and failing to recognize and promptly treat signs of ischemic bowel and infection ultimately causing the patient s death, a practitioner so involved should consider doing which of the following? a. Practitioners so involved should be aware that this type of allegation, if proven at trial, can be clearly seen as being so outrageous by the judge and jury that the awarding of punitive damages against the practitioner may well be involved. b. Practitioners should be aware that punitive damages, if assessed due to the outrageous nature of the practitioner s conduct, can often be many times the amount awarded for compensatory damages. c. Practitioners so involved should be aware that punitive damages, if assessed, may not necessarily be payable by a responsible insurance carrier primarily because punitive damages bespeaks of outrageous conduct tantamount to intentional wrongdoing, which will often not be payable by the average medical malpractice insurance policy. d. All of the above. 18

19 $36,737,66 VERDICT INCLUDING $18,000,000 PUNITIVE AWARD - OB/GYN IS SUED AFTER FAILED ABORTION RESULTS IN CHILD BORN AT 22 WEEKS WITH SEVERE CEREBRAL PALSY - "WRONGFUL BIRTH" - CLAIM FOR PAST MEDICAL AND FUTURE LIFE CARE EX- PENSES FOR CHILD - PUNITIVE DAMAGES CLAIM. In this matter, a woman sued after an abortion procedure at an Orlando Medical facility tragically resulted in the premature birth of a child afflicted with severe cerebral palsy. On November 15, the plaintiff C.H. presented at the Orlando Women's Center in Orlando, Florida. After being examined by staff members, she was advised that she was 22.3 weeks into her pregnancy. Due to the gestational age and complications involved with a prior delivery of another child, the plaintiff decided to terminate the pregnancy. At 1:30 p.m., she was given the first of mg. injections of Cytotec, as well as one injection of RU The injections occurred over an 11-hour period without examination by a physician. After failing to have completed the abortion, the plaintiff left the facility. Several hours later, she presented to the Orlando Regional Medical Center, where a child was delivered via C-section. The child, F.H., suffers from severe cerebral palsy and cannot speak, walk or take care of herself. The plaintiff filed suit on her child's behalf in Orange County Circuit Court for medical malpractice, naming the Orlando Women's Center and its administrator James P. IV, as well as the attending physician Dr. Randall W. The plaintiff sought recovery for the child's medical damages in the past and future, as well as punitive damages for gross negligence. The defendant Dr. Randall W. was accused of negligent diagnosis, with James P. accused of negligent supervision, and the facility itself negligent through its staff members. The case was initially dismissed in That decision was reversed and the case was reinstated in The only settlement discussions were conducted in the initial suit, with mediation offers confidential. Dr. Randall W. was removed from the suit after filing for bankruptcy in 2010, leaving James P. and his facility as defendants. In the four-day compensatory damages trial, the plaintiff presented the argument that if she'd been seen by a doctor and given a sonogram, there was a reasonable expectation that the doctor would have determined that her fetus was viable and that abortion was no longer an option. There were, however, no medical personnel available at the facility. Testimony was presented by the plaintiff, as well as expert Ob/Gyn testimony and testimony from treating physicians. Additional testimony was heard from expert witness Sharon Griffen regarding the life care needs of the child. The defendant argued that if the plaintiff had stayed, the abortion would have been completed. Two expert Ob/Gyn doctors were deposed, but their deposition was not presented at trial. After an hour and a half, the jury returned with an award of $18,737, in compensatory damages to the plaintiff, including $462, for past medical damages and $18,275,355 for the child's future life care. The plaintiff then made her case in a one day punitive trial for the gross negligence of the plaintiffs. The jury deliberated for three and a-half hours on that matter before returning an additional $18,000,000 punitive damages verdict. The final award including interest amounted to $36,737,660. MEDICAL LIABILITY ANALYSIS At the time of incident, the defendant James P. was incarcerated at United States Prison after pleading guilty in 2004 to charges of obstruction of justice relating to a criminal investigation for extortion. Dr. Randall W. was in charge of the defendant facility at the time of the plaintiff's admission. There were no medical personnel on-site at the facility, according to plaintiff's counsel. At the time of trial, James P.'s medical license was suspended. Practitioners are reminded by this case that where a physician deviates from acceptable standards of practice, in this case for failing to be in attendance over an 11-hour period during an ongoing, intended late abortion procedure, causing the ultimate delivery of a profoundly and permanently injured child, they can indeed be held responsible in compensatory damages for all of the past and future lifetime medical costs incurred or which will be incurred for the care of the seriously injured and impaired child. Furthermore, the plaintiff in this case was, in fact, prepared to present qualified expert testimony to the effect that during the pre-abortion process, the mother had properly been seen by a physician and was given a sonogram when there was a reasonable expectation that the fetus may have been viable and that the otherwise intended abortion process may no longer have been an option. However, the evidence clearly indicated that the mother was deprived of this potential opportunity to have a successful delivery of a normal child by the defendant's literal 11-hour abandonment during the pre-birthing process. In this regard, practitioners should be aware that in many jurisdictions, the deviating practitioner can also be responsible for the emotional injury to the mother who, by virtue of the defendant's deviations, is caused to actually bear and raise a severely impaired child that otherwise may have been successfully aborted or alternatively, delivered appropriately and successfully if the accused practitioners had simply been in attendance and afforded the appropriate care in a timely manner. The jury in this case awarded $18,737,660 in compensatory damages to the plaintiff, including $462,305 for past medical expenses and $18,275,355 for the child's lifetime care. The jury also awarded an additional $18,000,000 in punitive damages, resulting in a final catastrophic verdict of $36.7 million for compensatory and punitive damages. The punitive damages award was based on the clearly outrageous and unwarranted conduct of the defendant practitioner in failing to be in attendance to the patient over an 11-hour period, resulting in the ultimate delivery of a child via C-section who had suffered significant hypoxia resulting in severe cerebral palsy with an inability to speak, walk or in any way take care of herself as a permanent affliction. Regarding punitive damages, practitioners should be aware that if they engage in conduct that can be said to have been outrageous or totally unwarranted to the peril of the patient, they may indeed be responsible for a punitive damages claim for proven gross misconduct, as was the situation in this case. Furthermore, practitioners should be aware that where their conduct reaches the necessary criteria for the institution of punitive damages, such damages will be awarded in addition to the compensatory damages award involved in the case. In addition, because punitive damages are only awarded in instances of wrongful conduct that is tantamount to being intentional in nature, they may not be covered or payable by the average malpractice liability policy covering the accused practitioner involved due to the intentional nature of the particular act that brought about a punitive award. Practitioners are again reminded that in many jurisdictions, punitive damages, under a significant number of insurance policies, be payable individually by the accused practitioner him or herself, rather than the outstanding insurance policy covering ordinary deviations of the practitioner. Furthermore, because of the intentional aspect of the wrongful conduct necessary for the assessment of punitive damages, such punitive damages may not be dischargeable in bankruptcy in most jurisdictions and can, therefore, remain the personal obligation of the practitioner involved whose conduct was judged to have been so outrageous as to warrant the assessment of punitive damages. EXPERTS Plaintiff's economics expert: Frederick Raffa from Orlando, FL. Plaintiff's life care planning expert: Sharon Griffin from Stuart, FL. Plaintiff's Ob/Gyn expert: Paul Gatewood from Akron, OH. Plaintiff's pediatric neurology expert: Jose Foradada from Tampa, FL. Orange County, FL. C.H., individually, and as Settlor of the J.F. Special Needs Trust, et al. vs. Orlando Medical Center, et al. Case no CA O; Judge John Marshall Kest, Attorney for plaintiff: Jennifer Fernandez of The Fernandez Firm in Tampa, FL. Attorney for defendant: Robert J. Nesmith in Orlando, FL. Attorney for defendant: Joseph P. Menello of Wicker Smith O'Hara McCoy & Ford P.A. in Orlando, FL. $3,000,000 CONFIDENTIAL RECOVERY - EMERGENCY DEPARTMENT - FAILURE TO TIMELY DIAGNOSE AND TREAT BRAIN BLEED - ANEURYSM AND SUBARACHNOID HEMOR- RHAGE - CATASTROPHIC BRAIN INJURY. In this malpractice matter, the plaintiff alleged that the defendant emergency room was negligent in failing to timely diagnose and treat the plaintiff's brain bleed, which resulted in a catastrophic brain injury. The defendant denied liability and maintained that the plaintiff's injuries would have occurred despite diagnosis and treatment. The 29-year-old female plaintiff was transported to the defendant's emergency room via ambulance with symptoms of a headache, vomiting and diminished consciousness. The ambulance personnel advised nursing staff in the emergency department that the plaintiff suffered from a history of 19

20 migraines, which was not accurate. The plaintiff was treated in the emergency room and released home. No diagnostic testing was performed, such as a CT-scan. The plaintiff became comatose at home and was transported via ambulance to a different emergency room. It was determined that the plaintiff suffered a subarachnoid hemorrhage. She suffered a major rebleed before the aneurysm could be clipped. The plaintiff then suffered several strokes. She has been diagnosed with catastrophic brain injury. The plaintiff brought suit against the defendant emergency department alleging negligence. The plaintiff alleged that if the hospital personnel would have performed diagnostic testing such as a CTscan, the aneurysm would have been diagnosed and could have been operated on prior to causing the extensive bleeding and strokes suffered by the plaintiff. The defendant denied the allegations. The defendant maintained that there was no deviation from acceptable standards of care and even if immediate diagnosis and treatment occurred of the bleed, the plaintiff would have suffered a similar long term result. The parties resolved the plaintiff's case at mediation for the sum of $3,000,000. MEDICAL LIABILITY ANALYSIS The plaintiff's injuries have left her dependent upon other people for daily activities. She is only able to ambulate and speak and not able to function at a higher level due to the brain injury suffered. The plaintiff asserted that if the plaintiff had been properly diagnosed and transferred to a larger medical facility immediately, she would not have sustained the brain injuries that she suffered. The defendant emergency physician argued that the extent of the plaintiff's aneurysm was so severe that most likely she would have suffered the same outcome despite earlier diagnosis and transfer to a larger facility. The defendant claimed, through expert testimony, that the plaintiff would not have been able to undergo immediate surgery due to the extent of her brain bleed and statistically her outcome would have been the same, whether or not treatment had been rendered in a more timely fashion. In this case, the evidence indicated that the 29- year-old female patient was transported to the defendant emergency department by way of ambulance for symptoms recorded as being headache, vomiting and diminished consciousness. However, the ambulance personnel wrongfully advised the nursing staff at the emergency room that the patient was suffering from a history of migraine. Apparently, it was later determined that such history was in no way accurate or relevant to the situation involved. In all probability, in reliance on that wrong history obtained from the ambulance drivers, the patient was unfortunately treated for migraine and released with no diagnostic testing performed whatsoever such as an appropriate CT scan. As a result, the patient subsequently lapsed into a coma at home requiring her transportation via ambulance to a different emergency room where it was determined that she had suffered a major subarachnoid hemorrhage. Practitioners are reminded by this case that when undertaking to treat a patient in an emergency department or similar type facility for symptoms recorded as severe headache, vomiting and diminished consciousness involving a 29-year-old patient, it is particularly important for the practitioner involved to obtain a complete, full history directly from the patient if possible, rather than simply relying on an alleged history provided by the ambulance personnel. A full and complete history should be obtained directly from the patient if possible, or a close family member if the patient is unresponsive, that is sufficient enough for the emergency department personnel to properly diagnose and treat the patient in an appropriate and timely manner. Furthermore, where such history includes severe and unaccounted for headaches, vomiting and diminished consciousness, the treating physician involved should take appropriate steps to arrange for testing to rule out the most threatening of the potential diagnoses prior to arriving at a diagnosis based upon an erroneous history given by ambulance personnel. In this regard, not only do emergency department practitioners have the duty to obtain their own complete history and order appropriate testing, but they also have the duty to appropriately and timely obtain any and all specialists relevant to the patient's complaints, history and ongoing condition as may be necessary. The failure to do so was deemed in this case to have been a serious deviation from acceptable standards of practice. In addition, the plaintiff's medical experts opined that if the emergency department personnel at the original hospital had performed appropriate diagnostic testing such as a CT scan, the aneurysm would have been detected and diagnosed and the patient could have been operated on prior to the extensive bleeding which caused the stroke. The defendant practitioners, in denying the allegations, maintained through expert testimony that there was no deviation from acceptable standards of care in the treatment of the plaintiff, and more importantly, that even if an immediate diagnosis had been made and appropriate treatment was rendered, the plaintiff would have nonetheless suffered the same long-term result. However, the plaintiff's experts emphatically argued that if the plaintiff been properly diagnosed and promptly transferred to a larger medical facility for immediate surgical intervention, she would not have sustained the particularly severe brain injury that she ultimately suffered to her permanent peril. The defendant emergency medicine physician countered directly and through his experts that the extent of the plaintiff's aneurysm was so severe that in all reasonable probability, she would have suffered the same severe outcome despite an earlier diagnosis and treatment. Practitioners should take note that by making this argument, the defendant emergency room physician was essentially raising a "futility of treatment" defense. In this regard, the defendant was claiming that the patient would not have been able to undergo immediate surgery due to the extent of her brain bleed and, therefore, statistically, her outcome may well have been the same regardless of whether treatment had been rendered in a more timely fashion. The plaintiff countered that this futility of timely treatment defense should clearly be rejected in this case through the clear and unequivocal assertion of the plaintiff's experts who stressed that if the plaintiff had been properly and timely diagnosed and immediately transferred to a larger medical facility for surgery, she would not have sustained the severe brain injury that she ultimately suffered. Apparently the judge and jury agreed as evidenced by the large plaintiff's award rendered. Practitioners are once again reminded by this aspect of the case that the "futility of treatment" defense of a practitioner who had not offered what turned out to be necessary treatment is often not a defense that is readily or frequently accepted by lay jurors. As a general rule, this defense is rarely effective when it can be shown that the accused practitioner had not performed timely and appropriate treatment, particularly where there exists expert testimony to the effect that such appropriate treatment if performed early enough may well have altered the outcome. Jurors in such cases often believe that patients are entitled to all reasonable attempts to ameliorate a serious condition despite the possibility that the treatment rendered may have been futile due to the underlying and ongoing serious condition, even where there exists a less than full and complete chance of total recovery. Withheld County, MA. Plaintiff Jane Doe vs. John Roe Defendant E.R. Physician. Attorney for plaintiff: Jeffrey S. Raphaelson of Raphaelson & Raphaelson in Boston, MA. $2,599,000 VERDICT - PEDIATRICS - NEGLI- GENT FAILURE OF PEDIATRICIAN TO REFER TEN-YEAR-OLD PATIENT TO EMERGENCY ROOM UPON PRESENTATION WITH SYMP- TOMS OF APPENDICITIS - APPENDIX RUP- TURES TWO DAYS LATER. This was a medical malpractice action in which the plaintiff contended that the defendant pediatrician negligently failed to conduct a sufficient examination and negligently failed to refer the infant plaintiff to the emergency room when she presented with signs and symptoms of appendicitis, including severe abdominal pain. The plaintiff contended that as a result, she suffered a ruptured appendix two days later and required open surgery instead of a laparoscopic procedure along with an approximate one week hospitalization, during much of which she was catheterized. The plaintiff further maintained that the need for an extended catheritization resulted in a urinary tract infection that mandated an additional one week hospitalization. The infant plaintiff also suffered a soft tissue infection at the surgical site and was discharged to home with a drain. The plaintiff maintained that when the infant plaintiff developed severe abdominal symptoms, the mother brought the child to the defendant pediatrician. The plaintiff maintained that the defendant conducted a very quick exam and gave the infant plaintiff a note that excused her from school for two days because of a stomach virus. The plaintiff contended that the defendant should have recognized a potential surgical emergency and should have immediately referred the infant plaintiff to the emergency room. The plaintiff also contended that the child was not very communicative and distraught even be- 20

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