Philadelphia Top Injury Lawyer Blog

Emotional damages are often an important part of my work as a Philadelphia birth injury lawyer. Cases involving injuries to infants and small children are emotionally compelling, of course -- and because the children are so young, there's no immediate income loss to claim as financial damages. However, when we handle this kind of case, it's almost always with emotional damages as a component of a claim for financial damages; an emotional claim alone is not typical. So I was very interested to see the Pennsylvania Supreme Court's ruling in Toney v. Chester County Hospital et al., in which Jeanelle Antoinette Toney filed what might be called a wrongful life case in other states. Toney sued for negligent infliction of emotional distress after an ultrasound failed to turn up severe physical abnormalities in her son.

Toney underwent her ultrasound four months before giving birth to a son with no limbs below his knees or elbows, a hernia, and deformations of the jaw, tongue and penis. All parties agree that the defendants -- including the doctor, the hospital and several medical organizations -- represented the results of the ultrasound as normal. Toney claimed in her lawsuit that this prevented her from preparing herself for the shock of seeing her son's abnormalities, leading to stress, anxiety, depression and other symptoms of emotional distress. She did not claim that the defendants caused the abnormalities; she clamed only damages for negligent infliction of emotional distress. Defendants successfully moved to dismiss the NIED claims, arguing that Toney failed to state a claim because her claims didn't fit existing theories of NIED and because the defendants did not cause bodily harm to her or the child.

The Superior Court reversed on appeal, finding that Toney adequately stated a claim for NIED based on a contractual or fiduciary duty -- the duty of care in the doctor-patient relationship. It also found that the distress to Toney was reasonably foreseeable and that physical symptoms from emotional distress meet the physical injury requirement. The defendants appealed to the Pennsylvania Supreme Court.

Making new law in Pennsylvania, the high court found for Toney. It divided the appeal into two questions. On the issue of whether NIED can be claimed based on a contractual or fiduciary relationship, the Supreme Court relied on the decisions of other states that have found a special-relationship basis for a NIED claim. This type of claim follows the lead of other NIED claims, in that it's limited to cases with a preexisting relationship with the potential for deep emotional harm from a breach; the potential emotional harm must be deep and extraordinary. In finding this implied duty for medical professionals, the court ruled that Toney's claim should survive summary judgment. On the issue of whether a physical effect was required, the court noted that caselaw has previously required this. However, it said, it has also allowed exceptions for the distress of bystanders or victims of near-misses, and sometimes awarded damages for negligible physical impacts masking serious emotional impacts. Concluding that physical impact is "a flawed tool," the court discarded the requirement. Thus, it found Toney had stated a claim and remanded her case for further proceedings.

As a Pennsylvania medical negligence lawyer, I am happy to see that my Pennsylvania clients will now be able to claim emotional damages even in the absence of physical harm. In cases like this, the emotional effect of the medical professionals' alleged failures is clear and obvious: Toney was confronted with an unexpected shock shortly after giving birth, not the healthy son she had come to expect. In addition, she was also likely asked to make difficult decisions about medical treatment for the child. Depression, which is already a risk for new mothers, must be substantially more likely in such a case. If the ultrasound had been misread in a way that prevented timely medical care, it would be an undisputed failure to meet basic standards of care in Pennsylvania. That the misreading did not create any physical harm in this case is nothing more than luck, and in my opinion as a Pennsylvania medical malpractice lawyer, not something we should condone by removing liability.

Continue reading "Pennsylvania Supreme Court Rules Plaintiff May Claim Emotional Distress Only in Medical Case - Toney v. Chester County Hospital" »

As a Pennsylvania medical negligence lawyer, I was alarmed to read about a Congressional bill that could rob families nationwide of their ability to hold negligent medical professionals responsible for life-changing mistakes. As the Wilkes-Barre Times Leader reported Nov. 28, Rep. Tom Marino, a Republican from Pennsylvania, has introduced legislation that would allow reporting of mistakes caused by electronic medical records without the report being used as an admission of wrongdoing. The bill applies to providers who accept Medicare or Medicaid, which the newspaper notes extends it to most providers. The bill also limits electronic discovery in such lawsuits and sets a statute of limitations that may be shorter than that of any particular state.

The goal of the bill, according to the newspaper, is to encourage medical providers to start using electronic records more often. Marino says many choose not to because they believe it will make them vulnerable to lawsuits. The Institute of Medicine recently released a report calling for a system to create a reporting system for records-related injuries and deaths, and Marino's bill would create such a system. In a statement, a spokesperson for the Institute said this would better protect patients. But critics of Marino's bill said it would actually leave patients less well protected by creating perverse incentives for providers. One Pennsylvania medical malpractice lawyer told the paper that granting legal immunity for reporting mistakes would take away consequences for providers' actions, giving them no incentive to correct problems.

I agree. The bill would not necessarily stop medical malpractice lawsuits, but by making the records impossible to use in court, it would limit plaintiffs' chances of winning. If the system for reporting mistakes is confidential, the public and reporters would also have no way to determine which providers are doing a good job and which are falling short. As a Philadelphia birth injury lawyer, I do not recommend that patients rely on medical providers (or any other institutions) to police themselves. Other aspects of the bill are also disturbingly anti-patient, including the provision that would sharply reduce the deadline to file certain claims. It would limit claimants' ability to claim punitive damages, and limit discovery of electronic records in lawsuits. I believe patients should have the same right to hold negligent doctors responsible that other victims of negligence enjoy, and this bill appears designed ot make that more difficult.

Continue reading "Pennsylvania Congressman Introduces Law Barring Lawsuits Over Electronic Records Errors" »

As a Philadelphia birth injury lawyer, I was saddened to read about how one family's malpractice case could be affected by the Pennsylvania "apology law" working its way through the state legislature. The Philadelphia Inquirer reported Nov. 6 on the lawsuit by Ricardo Blake and Erica Allen-Blake, who lost their baby daughter Destinee LoToya Blake at just six days old. Destinee's death was caused by a medical error, and the article says officials at Abington Memorial Hospital explained the error and apologized at a meeting. The couple later sued, using the information they got at the meeting for much of the lawsuit. Though their case ultimately settled, the lawsuit raises a question that current Pennsylvania legislation tries to answer: Should families injured by medical malpractice be able to use this kind of meeting in court?

Destinee was born prematurely at 29 weeks, and weighed just one pound, nine ounces. The hospital needed to feed her intravenously, but because she was so small, they needed to use the biggest vein in her body to safely dissolve the nutritional fluid she received. That meant they needed to run a catheter into her biggest vein, stopping just before it reached the heart. Unfortunately, there was an administrative error with the chest X-ray required to make that delicate judgment, and it wasn't read in time. The catheter went a few millimeters too far, entered Destinee's heart and allowed fluid to seep into the sac surrounding her heart, stopping it. In their lawsuit, Blake and Allen-Blake said the hospital admitted fault in the death and described their meeting in detail. The hospital objected in court, arguing that the meeting was confidential, but the case settled before a trial could take place.

That objection is at the heart of the two bills in the Pennsylvania legislature on apologies in medical malpractice cases. The bills would make apologies inadmissible in medical malpractice cases. More controversially, they would also protect explanations of what happens. The bills are stalled because the state senator in charge of their current committee doesn't care for that second provision. Neither do Pennsylvania medical malpractice attorney groups, who argue that the bill shields doctors from the consequences of their actions. Doctors' groups say the apology law encourages doctors to apologize without fear of lawsuits, a fear that has created a culture of silence in the medical community. That's unfortunate, since one attorney told the newspaper that studies show apologies lead to fewer lawsuits and less cost for the medical professionals.

As a Philadelphia medical malpractice lawyer, I agree with the state senator who would prefer to keep explanations of fault admissible in court. No other category of defendant is permitted this kind of advantage in litigation -- to hide the main evidence of wrongdoing. Indeed, without the ability to bring up the kind of meeting Destinee's parents had, there's no guarantee of any other evidence, since explanations for medical events don't always make it into records. It may be difficult for people who don't work in this field to believe that medical professionals don't necessarily apologize when their mistakes hurt or kill a patient, the definition of medical malpractice. But unfortunately, doctors are so afraid of lawsuits that they may actually encourage them by seeming to turn a cold shoulder to malpractice victims. As a Philadelphia medical negligence lawyer, I think we can do better.

Continue reading "Death of Philadelphia Baby Raises Questions as Apology Law Moves Through Legislature" »

One common area of practice for me as a Pennsylvania medical negligence lawyer is failure to diagnose. When the disease is a serious one that benefits from early intervention, a doctor's failure to diagnose it can be quite damaging. And when the failure to diagnose is so unprofessional that it fails to meet ordinary standards of care for the Pennsylvania medical community, it absolutely is a form of medical malpractice. That was the allegation in Sawicki v. New Britain General Hospital, a Connecticut Supreme Court ruling. Brenda Sawicki sued a medical corporation, Mandell & Blau, P.C., for failure to diagnose her breast cancer. After trial, improper pre-deliberation juror discussions led Sawicki to allege juror misconduct and request a new trial. This was denied at the trial court level, but reversed by the Appellate Court and affirmed by the state's high court.

Sawicki had a routine mammogram in August 2000 that uncovered unusual masses. The radiologist recommended a followup ultrasound, but another radiologist ordered another mammogram instead and, deciding that it was inconclusive, recommended that she come for an exam on her normal schedule. Ten months later, Sawicki returned and was diagnosed with malignant breast cancer. She quickly underwent a single masectomy and reconstruction. In 2002, she sued, alleging that the failure to perform the sonogram and the failure to follow up on the inconclusive mammogram were malpractice. The defendant argued that Sawicki herself was negligent in failing to come to a followup appointment in December 2000 or follow recommended therapies after her masectomy.

The jury in her 2006 trial found for the defendant. However, Sawicki was approached after the verdict by two jurors, P and G, who alleged that a juror named M had sworn he was biased against Sawicki within two days of the trial's start. This juror was permitted to stay on the jury despite having said as much to the judge. A later misconduct hearing found that multiple jurors had discussed the case before it was closed. Sawicki moved for a new trial, and after the misconduct hearing, the trial court agreed that there was misconduct. However, it disagreed that any prejudice to Sawicki resulted. Sawicki appealed to the Appellate Court, which reversed, finding that the trial court improperly relied on the jurors' statements that they kept open minds despite the discussions. The defendant appealed.

The Connecticut Supreme Court upheld the Appellate Court, finding that Sawicki had been prejudiced by the jurors' discussions. It agreed with the defendants that the trial court applied the proper test to determine whether the juror misconduct had prejudiced Sawicki. However, it also found that the trial court was wrong in its results for that test -- that Sawicki had indeed been prejudiced. Indeed, the high court found that "the repeated instances of misconduct... were so severe and egregious that no reasonable fact finder could have concluded that the plaintiff had failed to establish prejudice." Two jurors had outright taken positions against the plaintiff very early in the case; others had made statements suggesting they had taken sides. This presents a danger that the jurors will pay attention only to the facts that strengthen their case, the court noted. Furthermore, there were so many such remarks from so many jurors that the bias was clearly not isolated, the court said. Thus, it reversed the trial court's decision to deny a new trial.

As a Pennsylvania medical negligence lawyer, I'm pleased that Sawicki's family will get the new trial -- although the opinion notes that Sawicki has died during the pendency of the appeal. Though any justice may be too late for her family, I still believe this case sends an important message about the way juries behave. Jurors are not permitted to discuss cases before they're fully presented for good reason: It creates prejudice through which they are likely to filter all of the facts being presented to them. This makes it impossible to have a fair trial, and thus, justice is not really done. (Of course, one might also say it's a waste of the time of the people presenting facts on both sides.) As a Philadelphia birth injury lawyer, I will take vigorous steps to protect my clients from this kind of juror prejudice.

Continue reading "Connecticut Supreme Court Finds Jury Misconduct Tainted Original Failure to Diagnose Trial - Sawicki v. New Britain Gen. Hosp." »

As a Pennsylvania medical negligence lawyer, I was interested to see a recent article about a classic case of alleged malpractice in Pittsburgh. According to the Pittsburgh Post-Gazette, Christa Mecannic and Michael Yocabet are suing UPMC Presbyterian Hospital for failure to notice or disclose that Mecannic was hepatitis C positive before transplanting her kidney into Yocabet. The article says Mecannic was summoned for what she thought was a routine post-operative checkup, only to discover that UPMC had finally caught the hepatitis C results that workers had apparently missed at least six times in the two months before the transplant.

Yocabet was a truck driver before diabetes and diabetic nephropathy forced him to retire. He and Mecannic had been together for 21 years before she agreed to donate a kidney to him. Mecannic believes she contracted hepatitis C as a result of her work as a licensed practical nurse, which she quit to care for Yocabet and go back to school. However, she said UPMC gave her the diagnosis by quietly taking her into an exam room and asking whether she had ever used cocaine or cheated on Yocabet. As a result of the hospital's failure to catch the diagnosis, they said, Yocabet faces an increased risk of disease. Healthy people can live with hepatitis C for years, but Yocabet is taking drugs to suppress his immune system so the kidney will not be rejected. If they had known about the diagnosis, the couple said they would not have chosen the surgery, and Mecannic would still have both kidneys. A doctor and a nurse were disciplined because of the case, which also caused UPMC to suspend its living donor program for two months and sparked a federal investigation. UPMC acknowledges the error but denies any cover-up.

As a Pennsylvania medical malpractice lawyer, I am pleased that this case is getting media attention. This kind of mistake is rare, and for good reason -- there are very real health implications for both of the people involved. There are no allegations that UPMC doctors missed red flags in other people's blood work, but given the systematic failures that created this case, it's a question worth asking. It's also the likely reason the organ transplant program was temporarily suspended. This kind of failure fits very neatly into the standard definition for medical malpractice: failure to meet a basic standard of care. Most medical malpractice cases come down to a judgment call, but in this case, it should be easy for the plaintiffs to find doctors willing to testify in their favor. As a Philadelphia birth injury lawyer, I hope they reach a favorable settlement and avoid any long-term health consequences.

Continue reading "Pittsburgh Couple Sues Hospital for Failure to Disclose Disease Before Transplant" »

As a Philadelphia medical malpractice lawyer, I occasionally handle claims with the unusual allegation that a child should not have been conceived. This may sound sad and ironic for couples struggling with infertility, but for those who sought a vasectomy or other sterilization, or have a high risk of birth defects, it's a serious matter. Such a claim was behind the New Mexico Supreme Court's decision in Provencio v. Wenrich, in which a woman sued a doctor who accidentally ligated a ligament instead of her one Fallopian tube. Cynthia Provencio had asked for a tubal ligation along with the Caesarian section that delivered her fourth child. Dr. Steven Wenrich informed Provencio of the mistake, but Provencio nonetheless conceived a fifth child. The Supreme Court found that the disclosure distinguished the case from a two-decade-old case in which the doctor did not inform the patient, and thus, Wenrich was entitled to judgment on the law.

The Caesarian and attempted tubal ligation took place in December of 2002. At a followup appointment a week later, Wenrich told Provencio that he had not "gotten" the Fallopian tube and said only a test would show how fertile she might still be; he provided her the forms for that test. However, Provencio declined to return to Wenrich; she took the necessary test in November of 2003, and it was revealed that she was still fertile. She and her husband conceived another child five months later and eventually gave birth to a healthy baby. In 2005, the Provencios sued Wenrich for wrongful conception and battery, seeking to recover the costs of raising the fifth child as well as punitive damages. They did not ask for any damages related to the cost of the failed sterilization or another such surgery. After a trial, Wenrich moved for judgment as a matter of law on the wrongful conception claim. The trial court granted it, finding that the Provencios knew they were fertile at the time of conception and the doctor had not failed to inform them, as required by the New Mexico Supreme Court in 1991's Lovelace Medical Center v. Mendez. The Provencios declined an invitation to request damages for the failed sterilization. They appealed to the Court of Appeals, however, which reversed, finding failure to inform was not a prerequisite for recovering wrongful conception damages.

The New Mexico Supreme Court reversed the case again, finding that informing the Provencios about their continued fertility was enough to meet the standard of care. Wrongful conception is a part of medical malpractice or medical negligence, the court said, and medical negligence is defined as failing in the duty to meet the standard of care. Thus, the high court found that the question in this case is whether Wenrich met the standard of care in his actions with Provencio. Mendez does not clearly define Wenrich's duty, the court said -- so it looked to general medical malpractice law to decide that the relevant duty is the duty to inform. New Mexico is one of only a handful of states that allow complete recovery for all of the costs of raising a child in a wrongful conception case, and the high court found that there should be a high bar to this recovery. Thus, the court said the standard for recovering these damages must be a failure of the duty to inform. In this case, the Provencios were informed that there might be a problem a week after the failed tubal ligation, and confirmed it 11 months later, well before they conceived their fifth child. Thus, the Supreme Court found the trial court was correct in granting judgment for the defendant.

As a Philadelphia birth injury lawyer, I handle the more typical birth injury cases, which allege that a doctor's bad decision hurt the baby or mother during birth. In Pennsylvania, we do not permit plaintiffs to recover damages for wrongful conception or wrongful birth. However, plaintiffs are certainly free to sue a doctor for the failure of a sterilization surgery, just as they would be in any state.

Continue reading "New Mexico Supreme Court Rules Wrongful Life Lawsuits Only Permitted When Doctor Fails to Warn -Provencio v. Wenrich" »

As I've recently discussed, Pennsylvania has a requirement in medical malpractice cases to submit a written affidavit from a medical professional whose specialty is similar to that of the defendant. This is intended to weed out frivolous medical malpractice cases, but as a Pennsylvania medical negligence lawyer, I dislike that it also erects another barrier to seeking justice. A similar requirement exists in Connecticut, and it's the subject of that state's Supreme Court's decision in Morgan et al. v. Hartford Hospital et al.. In this case, Winston and Edna Morgan sued a surgeon over the death of Una Morgan, of complications from heart surgery. The defendants, argued that the Morgans' case should be dismissed because they submitted an affidavit from the wrong type of medical expert. But the Connecticut Supreme Court found that by waiting more than 19 months to make that argument, the defendants had waived it.

Una Morgan underwent a heart catheterization on Jan. 3, 2005, and developed bleeding and an abdominal hematoma afterward. The next morning, Dr. Robert Lowe examined Morgan, noticed signs of bleeding and "recommended an interventional approach." Later on the same day more examination found an area of active bleeding, and metal coils were placed to help the blood clot. Nonetheless, Morgan died of multiorgan failure on Jan. 5. The plaintiffs, executors of her estate, sued Lowe and the hospital in March of 2009 for failure to timely diagnose and treat Morgan, causing her death. Connecticut law required a written opinion from a similar health care provider; they attached an opinion from a board-certified internal medicine specialist with a subspecialty in cardiac disease. Lowe is a thoracic surgeon with a subspecialty in vascular surgery. An amended complaint in April of 2008 included a written opinion from a vascular surgeon. Litigation proceeded until November of 2008, when the defendants successfully moved to dismiss the case on the basis that the written complaint was not from a similar health care provider.

On appeal to the Connecticut Supreme Court, the Morgans argued that the original opinion was adequate; that the opinion attached to the amended complaint was also adequate; and that the law requiring a written opinion is unconstitutional. The issue of whether the defendants raised their defense in a timely manner arose in oral arguments, after which the high court requested briefing. In the end, the Supreme Court agreed with the plaintiffs' argument that the defense was waived because the written opinion is a requirement of process that should be challenged within 30 days of filing an appearance. The legislature's wording clearly showed that it contemplated dismissal for failure to submit a valid opinion early in the case, the high court said. Furthermore, under Connecticut caselaw, it said, the failure to attach a written opinion from an appropriate health care provider is insufficient service of process. That means it falls squarely under the 30-day requirement of Connecticut's Practice Book Sec. 10-30. Thus, it reversed the dismissal motion and remanded the case for further proceedings.

As a Philadelphia medical malpractice lawyer, I appreciate that the court has ruled in this way because it has taken away an incentive for defendants to waste substantial time and resources. If defendants were permitted to move to dismiss months or years after the written opinion was submitted, they would be able to drain plaintiffs' resources by drawing out many hearings and depositions, only to have them all swept under the table by a dismissal. This would make it harder for the plaintiffs to file again (if that's even possible) because they would have less money with which to pursue the case. This might be a great outcome for malpractice insurance companies and their doctors, but it does nothing for people who have been injured by the negligence of a medical professional. As a Philadelphia birth injury lawyer, I believe injured families don't deserve any more obstacles to seeking justice.

Continue reading "Connecticut Supreme Court Rules Medical Malpractice Defendants Waived Defense By Sitting on It - Morgan v. Hartford Hospital et al." »

Recently I wrote here as a Philadelphia medical malpractice lawyer about a Maryland case that turned on the sufficiency of an affidavit of merit. This requirement, a version of which also exists in Pennsylvania, asks the plaintiff in a medical malpractice case to file a written document from a medical expert attesting that the defendant did violate or could have violated the community's standard of care. Such a requirement also exists in our neighboring state of New Jersey, and that requirement was the issue in the New Jersey Supreme Court ruling in Buck v. Henry. In this case, defendant Dr. James Henry moved to dismiss a case because the affidavit of merit filed was written by a doctor who specialized in a different area of medicine from Henry's. The lower courts allowed the case to be dismissed, but the New Jersey Supreme Court remanded it for a status conference it said the plaintiff should have had.

James is a family medicine specialist whose patients used to include plaintiff Robert Buck. He diagnosed insomnia and depression in Buck and prescribed an antidepressant and the sleep aid Ambien. Ambien is known to cause people to behave oddly in their sleep. One evening, Buck alleges he fell asleep while inspecting his gun, then was awakened by what he thought was the phone ringing. Still holding his gun, he reached for the phone and somehow put the gun in his mouth, discharged it and sustained permanent injuries not described in the opinion. Buck later sued for medical malpractice, and retained a licensed psychiatrist, Dr. Larry Kirstein, to write an affidavit of merit saying Henry's treatment fell outside acceptable standards. Henry's counsel objected because Kirstein came from a different specialty. Due to a clerical error, the trial court told the litigants that all affidavit issues were addressed and there was no need for a conference to decide the issue, called a Ferreira conference. Buck was granted a deadline extension and got another affidavit, this time from an emergency medicine specialist. Nonetheless, Henry moved for summary judgment because neither affidavit was from a family medicine specialist and the case had passed a deadline for Buck to submit any further paperwork. The judge dismissed the case with prejudice and the Appellate Division affirmed.

Buck appealed to the New Jersey Supreme Court. That court's opinion not only reversed the lower courts, but set new standards for medical malpractice affidavits in New Jersey. A Ferreira conference is a conference to determine whether there are flaws in an affidavit of merit, created by a 2003 medical malpractice case that the Supreme Court said addressed the very same issue. The high court found that the trial court should have held a Ferreira conference and indeed, noted that it is required. If the trial court in this case had done so, the court said, Buck would have had time to file an affidavit of merit that me the standards of New Jersey state law. The affidavits he did file were not technically correct, the court said, but were filed in good faith. If Henry was a general practitioner, a psychiatrist's affidavit should have been sufficient; the emergency medicine affidavit grew out of Henry's board certification in emergency medicine. Furthermore, the court said, doctors answering future medical malpractice complaints should now indicate which specialty, if any, was involved in the disputed treatment. It sent the case back to trial court for a Ferreira conference. Two dissenting justices argued that this decision defies the intent of the Legislature.

I'm pleased with this decision. The affidavit of merit requirement is an attempt by the state legislature to weed out cases that are not meritorious. As a Philadelphia medical negligence lawyer, I can assure you that few frivolous medical malpractice cases exist, because they are too long and expensive to bring without any realistic chance of success. As a result, the affidavit of merit really serves to erect another roadblock for plaintiffs attempting to win financial compensation for their injuries. This case does not eliminate the roadblock, but it does require future cases to have both a Ferreira conference and a clear answer as to which specialty the affidavit should reflect. As a Philadelphia birth injury lawyer, I think requiring defendants to provide clear information is reasonable and not at all burdensome, unless they believe dealing with the consequences of their mistakes is an unreasonable burden.

Continue reading "New Jersey Supreme Court Orders New Conference for Affidavit in Medical Malpractice Case - Buck v. Henry" »

Here in Pennsylvania, our legislature requires each legal claim for medical negligence against an individual doctor to be followed within 60 days by a certificate of merit written by a medical expert witness. As a Pennsylvania medical malpractice lawyer, I was therefore interested to see a ruling about a similar state law in Maryland. In Breslin v. Powell, the Maryland Court of Appeals ruled that Dr. Jeffery Breslin should not have been granted summary judgment in a medical malpractice case filed by the family of Jackie Powell. Instead, the Powells' case should have been dismissed without prejudice when the trial court found that his Certificate of Merit did not meet legal standards. The decision still ends the case, but allows the Powells to try again if they choose and can produce a proper Certificate of Merit.

Powell was admitted to Good Samaritan Hospital in Baltimore for renal surgery that was intended to keep him off dialysis. Unfortunately, the anesthesia caused a spinal cord injury that paralyzed Powell from the waist down, and his family alleged that this led to his death 15 months later. The family filed suit against the hospital and the anesthesiologist, a Dr. Monford Wolf; they later added more hospital defendants and Breslin. In support, they filed a Certificate of Merit authored by a Dr. Ronald Burt, an anesthesiologist. At deposition, Burt acknowledged that he was not qualified to testify as an expert about Breslin's specialty, vascular surgery. Breslin moved to dismiss or, in the alternative, for summary judgment.

The Powells had other experts waiting in the wings, but this was not enough for the trial court, which granted summary judgment. The Powells then moved to reconsider, arguing that Maryland law requires dismissal without prejudice, not summary judgment, which is essentially dismissal with prejudice. This too was denied. The Powells appealed to the Maryland Court of Special Appeals and won a reversal. Breslin appealed to the Maryland Court of Appeals. On appeal, the court reviewed the history of medical malpractice laws in Maryland, then turned to the task of interpreting the statute. Its plain language says a claim "shall be dismissed, without prejudice, if the claimant or plaintiff fails to file a certificate of a qualified expert[.]" Breslin argued that this passage refers to failure to file any certificate at all, but caselaw, legislative intent and the plain language of the statute all say otherwise, the Court of Appeals said. Thus, it upheld the special appeals court.

As a Pennsylvania medical negligence lawyer, I can hardly see how the appeals court could have come to any other conclusion, given the language of the law. This is a good reminder that even when a trial court makes a mistake, you can and often should keep asking higher courts to reverse that mistake. It is also a reminder that it's best to have an attorney's help preparing required legal documents like this certificate, to ensure that the case is not delayed unnecessarily and its costs don't spiral out of control through mistakes. While the Powells are entitled to a second chance at their case, their first chance could have succeeded with a better expert. As a Philadelphia birth injury lawyer, I work hard to ensure that my clients' cases are free of procedural problems and can be considered on the merits.

Continue reading "Inadequate Expert Certificate Requires Dismissal of Case, Not Summary Judgment, Maryland Court Rules - Breslin v. Powell" »

As a Pennsylvania medical malpractice lawyer, I was interested to read a federal medical malpractice appeal about a veteran who claimed a Veterans' Administration hospital in Illinois failed to recognize and take steps to prevent his stroke. Gerald Morisch and his wife, Bette Morisch, sued under the Federal Tort Claims Act for medical malpractice and loss of consortium. A federal district judge held a bench trial on the malpractice claim and the Morisches lost. They appealed to the Seventh U.S. Circuit Court of Appeals, but the court ruled in Morisch v. United States that the appeal was waived for procedural reasons and in any case, the VA's actions were not the proximate cause of Gerald's stroke.

Gerald went to the emergency room in 2003 with pain in his jaw and neck. A doctor prescribed pain medicine and sent him to the dentist, suspecting he had a bone problem called Eagle's syndrome. A follow-up appointment with his primary care doctor produced a recommendation to go to an ear, nose and throat specialist. The primary care doctor also counseled Gerald about controlling his weight, blood pressure and cholesterol, all of which are stroke risk factors. The ENT specialist found a mass in Gerald's neck and ordered a CT scan for about two weeks later. The doctor who interpreted the CT scan suggested an ultrasound, but this recommendation was not followed up. On the way home from both appointments, the plaintiffs said Gerald began experiencing symptoms of mini-strokes; Bette testified that she called the VA about it both times. About two weeks later, Gerald went to a local emergency room with stroke symptoms. He was transferred to a Kentucky hospital, where he underwent emergency surgery to remove plaque in his arteries, but the damage of the stroke was already done. Two days after the emergency room visit, Bette received a call from the VA suggesting an ultrasound for the neck problem.

The Morisches sued, alleging that the VA doctors breached the standard of care by not following up earlier with the ultrasound or noticing the stroke symptoms. At trial, an expert witness for the government testified that the neck ultrasound was unlikely to have found the stroke symptoms. The Morisches' own witness testified that it could have helped, but the real problem was the VA's failure to act on Bette's phone calls. Phone records showed no such calls, even after Bette changed her story about which phone she used. Thus, the trial court found no breach by VA personnel and, in a footnote, no proximate causation allowing the tests for the neck mass to prevent the stroke.

The Morisches appealed their Federal Tort Claims Act claim. On appeal, however, the Seventh Circuit found a fatal mistake by the couple: They did not submit a transcript of the entire bench trial (only the testimony of the government's expert), or submit a statement of issues they intended to present on appeal and serve it on the government. To make matters worse, the Seventh said, Gerald had ample time to correct the problem and did not. The filings submitted were not enough to overcome the highly deferential standard applied to findings of fact in bench trials, the court said. It deemed the appeal forfeited. It then examined the merits of Gerald's claim based on the record and found none. Under the FTCA, Illinois law on medical malpractice should control this case, the court said, and Gerald's claim fails under that standard. Bette was not a credible witness due to contradictions in her testimony. And in any case, nothing in Gerald's CT scan or neck exam could have prevented or lessened the effects of the stroke. The Seventh upheld the federal district court's judgment in favor of the VA.

As a Pennsylvania birth injury lawyer, I know suing for medical malpractice is a very fact-intensive job that requires a strong case and a lot of research. As a rule, if you have a medical malpractice claim, you can expect the attorneys for the medical provider to build a very strong defense. For that reason, it's vital to ensure that your claim is strong and you don't get upset or flustered enough to give contradictory testimony. Medical care is big business, and the people who provide it are unlikely to concede a malpractice case without a fight.

Continue reading "Seventh Circuit Dismisses Appeal of Failure to Diagnose Stroke Lawsuit at VA Hospital - Morisch v. United States" »

As a Pennsylvania medical malpractice lawyer, I was interested to read a case that ultimately allowed an adult woman to go forward with a malpractice claim stemming from when she was nine years old. In Unruh v. Cacchiotti, Lisa Unruh sued her former orthodontist, Dr. Dino Cacchiotti, for negligent dental work that eventually caused her teeth to fall out, requiring her to get implants as a young woman. Unruh was born in 1986 and began orthodontic treatment at the age of nine, in part because she had a severe underbite. She saw Cacchiotti, who started her on braces for her upper teeth in 1995, added lower braces in 1996 and removed both sets in 1999. During this treatment, many of Unruh's permanent teeth suffered a type of damage called root resorption and fell out, causing her to need permanent implants. When the family asked Cacchiotti about this, he told Unruh's stepmother that Unruh probably had a genetic predisposition that the braces exacerbated.

However, several dentists later told Unruh and her family that root resorption is caused by braces being kept on too long. In 2006, when Unruh was 20, the family started looking for an attorney. In the same year, the Washington legislature added an eight-year statute of repose for medical malpractice, and separately eliminated the tolling of the statute of limitations for minors in medical malpractice cases. Unruh filed a notice of intent to sue and Cacchiotti agreed to mediate in early 2007, tolling the statute of limitations by a year. He later backed out of mediation and Unruh continued her suit. In trial court, Cacchiotti successfully moved for summary judgment in the grounds that the statute of limitations had passed. Unruh appealed, and the case was joined by numerous amici, who were Washington state medical, insurance and trial lawyers' groups. The Court of Appeals eventually certified the case to the state Supreme Court for review.

The Supreme Court started by analyzing the three-year statute of limitations. This normally starts running with the last negligent act or omission, the court noted, which in this case could have been when Unruh's braces came off in 1999. However, because she did not turn 18 until 2004, it was tolled under the law of that time. Thus, the three-year statute of limitations began running in 2004 and ended in 2007. Because Cacchiotti agreed to mediation in 2007, the statute was tolled by another year. Thus, her suit filed in late 2007 was timely, the court said. It refused to apply the 2006 nontolling law to Unruh's case retroactively, saying new laws are applied prospectively unless the legislature intends otherwise. Because Unruh was no longer a minor when the nontolling law passed, it did not apply. For the same reason, it also rejected Cacchiotti's argument that the statute of repose should bar her claim; the new statute should begin when the law passed, the court said. Thus, Unruh's suit was timely and should go forward, it ruled.

This is good news for plaintiffs in Washington, because it gives them extra time to make the important decision about whether to file a medical malpractice claim. As a Pennsylvania medical negligence lawyer, I understand how important that decision is. A medical malpractice lawsuit is generally a long time investment, because it is very fact-intensive and likely to be fought hard by the doctor and his or her insurance company (as this case was). It's important for injured families to be sure they want to pursue a case before filing. This is likely even more important when the injured person was very young and, as in this case, does not fully understand her injuries. As a Philadelphia birth injury lawyer, I hope other people who were injured as minors in Washington act quickly to protect their rights to sue.

Continue reading "Statute of Limitations Correctly Tolled in Malpractice Case Involving Minor - Unruh v. Cacchiotti" »

As a Pennsylvania medical negligence lawyer, I frequently file cases alleging mental and emotional suffering as part of the damages my clients suffered. So I was interested to see a medical malpractice case from the Kentucky Supreme Court in which a plaintiff was required to turn over psychiatric records because she made the same allegations. In Dudley v. Jefferson Circuit Court, Sarah Dudley is suing a doctor and a medical center over an allegedly botched injection of anesthetic to her shoulder. As part of discovery in the medical malpractice lawsuits, the defendants requested medical records, including psychiatric records. The Supreme Court and lower courts all agreed that the psychiatric records were not protected by the psychotherapist-patient privilege.

Dudley alleges that her bupivacaine injection left her without full use of her arms and legs, and with pain, spasms and decreased strength and mobility. Her original complaint listed damages including "mental, physical and emotional pain and suffering and a loss of enjoyment of life." The defendants then sought her psychiatric and psychotherapy records. Dudley moved to deny this under psychotherapist-patient privilege, but the judge denied it. She then filed for a writ of prohibition against the release of the records, and the Court of Appeals denied it, saying the majority of the records are not privileged. She then appealed to the state Supreme Court.

That court gave her no relief. Under Kentucky law, psychotherapist-patient privilege is waived when, among other things, the patient asserts mental condition as part of a legal claim or defense. This waived the privilege, the Supreme Court said. The trial judge in the case found that "physical and mental conditions are at the heart of her claims," and the Supreme Court agreed that her claim for "mental... pain and suffering" makes her mental state open to discovery. It disagreed that her records should be protected because she claimed only "garden-variety" mental and emotional damages, rather than a specific mental condition. Citing caselaw from around the country, the Supreme Court disagreed. It would be "fundamentally unfair," the court said, to allow Dudley to allege mental suffering without opening records related to her mental state. Thus, the court upheld the lower courts' orders requiring the records to be discovered.

This case interests me as a Philadelphia birth injury lawyer because mental anguish claims are quite common in medical malpractice and other injury claims. I work frequently with people who have sustained permanent, disabling injuries because of someone else's carelessness, and this truly does create mental anguish -- feelings of sadness, anger, helplessness and more. These feelings clearly have nothing to do with any other psychiatric problems or treatment the injured person may have had before the injury, though the new injury could reawaken or exacerbate those feelings. However, opening those records could embarrass or upset a plaintiff who thought depression, substance abuse or other problems were buried in the past. Thus, I am not sure, as a Pennsylvania medical malpractice lawyer, whether it's a good idea to make those records discoverable in all cases.

Continue reading "Kentucky Supreme Court Rules Plaintiff in Medical Malpractice Case Must Turn Over Psychiatric Records - Dudley v. Jefferson Circuit Court" »

My goal as a Pennsylvania medical malpractice lawyer is to help my clients get the compensation they need to treat their injuries and adapt to life after a serious medical error. So I was interested to see a recent Pennsylvania Supreme Court decision in a case about who was responsible for paying a victim of medical malpractice. In Heim v. Medical Care Availability and Reduction of Error Fund, the underlying medical malpractice case was filed by Stephen Heim, whose wife died as a result of an alleged medical error by two doctors in a family practice. Heim won a judgment against them in 2000, but their malpractice insurance had gone bankrupt, and the insurer that inherited the policy did not pay enough to cover the entire amount. A state fund, called the CAT fund, existed to make up the shortfall, but it denied any responsibility to pay. Heim sued the doctors to recover from their personal assets.

One of the doctors, and his medical group, filed their own lawsuit against the CAT fund, seeking a declaratory judgment that it had to pay the shortfall. The doctor then settled with Heim by assigning his claim against the CAT fund to Heim. Thus, Heim became the plaintiff in that matter. The trial court found that the CAT fund was liable. The fund then filed this appeal, arguing that it was not liable for shortfalls that come from the bankruptcy of a primary insurer. The Pennsylvania Supreme Court disagreed. Using the plain language of the statute, as it applied at the time, the court found that the CAT fund is responsible for covering judgments in excess of the insured's own primary coverage. Because joint and several liability applied in the case, that responsibility to cover extends to any liability the insured assumes on behalf of another party -- in this case, the second doctor. Thus, the CAT fund is obligated to pay the shortfall.

As a Pennsylvania medical negligence lawyer, I'm always pleased to see injured people get the financial recovery they're entitled to. In this case, Heim originally filed his case in 1998, which means he has waited more than a decade for a resolution to his case. While long delays are not unusual in medical malpractice cases, it's a shame that squabbling over who was obligated to pay what held up his compensation. In a case with a seriously injured plaintiff who needs the money for medical care, adaptation to a disability or to make ends meet, this kind of delay is a serious hardship. As a Philadelphia birth injury lawyer, I work hard to ensure that my clients have their needs taken care of -- though never at the expense of a fair settlement.

Continue reading "Pennsylvania High Court Finds State Fund Must Pay Medical Malpractice Judgment - Heim v. Medical Care Availability and Reduction of Error Fund" »

As a Pennsylvania medical malpractice lawyer, I was interested to see an article about a new model for settling medical malpractice cases that could someday be used in our state. According to a June 12 article in the New York Times, the state of New York is trying out a system of early settlement talks in medical malpractice cases, with the goal of ending cases earlier and limiting the cost of malpractice liability insurance. In this system, judges with an above-average amount of medical knowledge are assigned to malpractice cases, then hold multiple early settlement conferences. A nurse is assigned to help the judge understand the medical issues involved, and all of the attorneys are required to have the authority to settle. Early statistics show that the judge handling the case settles 20 percent more cases than his peers.

The program is thus far being implemented in the Bronx, Brooklyn and Manhattan, with Buffalo courts likely to take it up this fall. It reverses the usual practice in malpractice cases, in which settlement conferences often come very late in the litigation process, close to trial. Instead, the program gathers attorneys for all of the parties in a room with a knowledgeable judge, who mediates the settlement conference with information about what juries are likely to do and the size of past settlements. New York officials say the approach limits the cost of litigation, to the parties as well as the state. Injured people tend to get less money than they would in a jury trial, the article said, but they may get that money sooner than in a traditional case. The federal government hopes the program could spread to other states as a way to limit the cost of malpractice cases, and estimates savings as high as $1 billion a year.

Because I represent injured patients and their families as a Pennsylvania birth injury lawyer, I think it's best to be cautious about anything that limits patients' ability to be fairly compensated. Nearly all medical malpractice cases are about an injury that killed or permanently injured the patient, so it's very important that these injured people get the money they need to adapt to their permanently changed lives. This system wouldn't necessarily stop that from happening, but by taking the decision out of a jury's hands and into a back room, it invites pressure and decisions with no accountability. Certainly, injured parties should retain their ability to choose a jury trial if they prefer one. As a Pennsylvania medical negligence lawyer, I hope lawmakers give this system a lot of time to create data with which to make a well informed decision before we try it here in Philadelphia.

Continue reading "New York State Experiments With Early Settlements in Medical Malpractice Lawsuits" »

As a Pennsylvania medical malpractice lawyer, I was interested to see an article suggesting that the number of medical malpractice lawsuits in our state has gone down for most of the last decade. As the Scranton Times-Tribune reported May 26, Pennsylvania court records show that new filings of malpractice cases continued to drop in 2010, continuing a trend that started in 2002. According to the Administrative Office of the Pennsylvania Courts, new cases declined by 45.4 percent over the numbers for 2000-2002, the most recent peak in filings. The article attributed the drop to two rule changes made by the state Supreme Court in 2002, which made medical malpractice cases harder to file. Chief Justice Ronald Castille was quoted in the Pittsburgh Tribune-Review suggesting that the state's medical malpractice "crisis is over."

The "crisis" Castille referred to was a peak in number of malpractice lawsuits in 2002, with 2,904 new filings. That number was 1,491 in 2010. Medical observers said the number of lawsuits made malpractice insurance high and encouraged new doctors to start their careers in other states. The state Supreme Court made two new rules to address this. One requires another doctor in the same field of medicine to sign off on a new lawsuit, to ensure the case has merit. The other prevents "venue shopping" by requiring claims to be filed in the same county where the injury occurred. Dr. Ralph Schmeltz, the leader of the Pennsylvania Medical Society, said the number of filings had gone down, but medical malpractice premiums haven't dropped. Attorneys told both newspapers that the decline in new lawsuits can be attributed in part to the growth of mediation, a form of private judging that settles disputes out of court. A Pennsylvania medical negligence lawyer told the Tribune-Review that medical malpractice cases are far less frivolous than the public may believe, since plaintiffs' lawyers usually get paid only if they win.

I couldn't agree more. As a Philadelphia birth injury lawyer myself, I know that medical malpractice is one of the most expensive types of injury cases to bring to trial. As a rule, medical negligence cases are very complicated because they have to take into account the victim's medical, personal and financial history and needs, then prove them in court, using experts. This can take months and months to do property -- and doing it properly is vital, because most plaintiffs only get one chance to make their claims. This means months of work for which my office will get paid only if we win. When you add in the cost of expert witnesses and other necessities, it's easy to see why one attorney told the Tribune-Review that he probably rejects 90 percent of his potential clients. With so many obstacles already between injured patients and a fair financial settlement, I don't believe there's an honest case to be made that malpractice premiums are driven by a glut of frivolous cases.

Continue reading "Court Records Show Rate of Pennsylvania Medical Malpractice Cases Continues to Drop" »