Articles Posted in Medical Malpractice

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stop-this-watch-487816-mIn October of 2011, a pregnant Maureen Ogiemwonyi was taken to North Shore Medical Center for delivery of her baby.  During the ceasarean section that was performed, Ms. Ogiemwonyi was caused to sustain serious and severe personal injuries.  She brought suit against two doctors and the health care facility alleging medical malpractice.  Because one of the doctors was a federal employee, acting within the scope of her employment at the time of the alleged misconduct, the case was transferred to federal district court.  Additionally, because the doctor was a federal employee, the United States was added to the case as an additional defendant in the matter.  Thereafter, the Defendant moved to dismiss the case on the grounds that the Plaintiff, through her attorney, failed to comply with strict notice requirements in federal court.

Similar to the requirements in Massachusetts, in order to bring a tort action against the United States, a party seeking redress must timely provide notice of his or her claims in writing to the administrative body (agency) in which he or she is claiming is ultimately responsible for the alleged wrongful conduct.  Once this notice is sent to the appropriate agency, a party must wait six months prior to filing suit in federal district court.  This allows for the federal agency to make an attempt to resolve a potentially costly claim, and to do a thorough investigation of the matter in which there are allegations of liability.  Under 28 U.S.C.A. § 2401:

A tort claim against the United States shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues or unless action is begun within six months after the date of mailing, by certified or registered mail, of notice of final denial of the claim by the agency to which it was presented.

If the administrative body fails to make a denial in writing, the absence of a denial can be taken as a “constructive” denial for purposes of a party bringing forward his or her case.  While a party must wait six months for the denial of a claim, another clock starts to the tick:  the time in which a party has to file suit. Continue reading →

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psychAs we have discussed in an earlier post, a medical professional owes no duty to a third person arising from any claimed special relationship between the medical professional and a patient.  However, when the health care professional is a mental health professional, the situation is entirely different.  This particular issue was raised when a lawsuit was filed against mental health professionals claiming that they owed a duty to warn a potential victim of their patient.

Jason Potter had a longstanding history of mental health issues and was hospitalized at various times in 1997-1998.  At one particular hospitalization it was noted by professionals that he was disorganized, confused and depressed.  Mr. Potter was admitted to the hospital as a safety precaution.  It should be noted that this was a voluntary admission- meaning he had the capacity to check himself out.  During his stay doctors indicated that Mr. Potter was paranoid and experiencing racing thoughts.  Mr. Potter checked himself out after a two day stay at the hospital, against his doctors advice who recommended a longer stay.  Mr. Potter’s medical records indicated that he was impulsive and a noncompliance risk but not a danger to himself.

A licensed clinical social worker, Jean Semexant, performed an evaluation of Mr. Potter a day after his release.  Mr. Potter attended this meeting with his mother.  Semexant knew that Mr. Potter resided with his mother and stepfather, and that the stepfather had recently been released from jail for violating an abuse prevention order.  Medical records indicate that Mr. Potter denied having any suicidal thoughts or homicidal ideations.  Semexant did not intend to hospitalize Mr. Potter as a result.  Following this evaluation, Mr. Potter returned to his home where he brutally stabbed his mother and stepfather to death.  He was tried for two counts of murder and was found guilty by reason of insanity. Continue reading →

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hospital-corridor-1057587-mKimiyoshi Matsuyama went to his doctor’s office for a routine physical examination. Medical records of the visit indicate that Mr. Matsuyama complained of heartburn and difficulty breathing that was associated with eating and lifting. Mr. Matsuyama’s doctor, Dr. Birnbaum, did not order any tests to determine the origin or cause of his patients complaints. At a subsequent trial, Dr. Birnbaum testified that he was aware that Mr. Matsuyama had a history of smoking and was at significantly higher risk for developing gastric cancer than was the general population of the United States. Instead, the doctor diagnosed his patient with gastrointestinal reflex disease and recommended over the counter treatments.

Dr. Birnbaum treated Mr. Matsuyama for approximately three more years. Each time that Mr. Matsuyama complained of an ailment or discomfort he was experiencing (such as a suspicious mole), he was told that it was not something to be fearful of. Subsequently, a mass was found in Mr. Matsuyama’s stomach and he was diagnosed with infiltrative gastric adenoid carcinoma. He began treating with specialists for his condition and subsequently passed away due to the gastric cancer.

The Estate of Mr. Matsuyama brought a complaint against the Defendant Doctor alleging wrongful death. The complaint alleged that Dr. Birnbaum breached the applicable standard of care in evaluating and treating Mr. Matsuyama which resulted in his death. An expert retained by the estate opined that, “in light of Matsuyama’s complaints, symptoms, and risk factors, including the presence of H. pylori, his Japanese ancestry, his having lived in Japan or Korea for extended periods, his smoking history, and other well-known risk factors, an internist exercising the expected standard of care would have ordered an upper gastrointestinal series X-ray or an endoscopy, or referred Matsuyama to a specialist for endoscopy, beginning in 1995.” The Estate argued that had the doctor ordered the appropriate testing as early back as 1995, the cancer that Mr. Matsuyama ultimately died of would have been diagnosed and treated in a way where it may have been curable. Continue reading →

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recordsIn the electronic world we find ourselves in, many records from a variety of sources have gone digital.  In an effort to streamline and increase efficiency, records ranging from office visits to business transactions are scanned in for easy dissemination.  Additionally, records from offices are sometimes shipped to third parties for copying and scanning if a particular office does not have the capacity to do so.  While this may not have any real implication for some documents- when it comes to highly sensitive information such as medical records, litigation has boomed.

In some situations patients have been apprised by hospitals, clinics, or doctors’ offices that there has been an unauthorized disclosure of their medical records.  Sometimes this comes in the form of requested medical records being sent to the wrong office, or an office receiving the wrong medical records, or even a mistake as to a name.  For instance, if Jane Doe (born in 1967) requests her medical records and she receives the medical records belonging to Jane Doe (born in 1990)- there has been an unauthorized access of medical records.  Medical records contain some of our most highly personal, sensitive, and confidential information- and as such- when those records are disseminated without our permission, this can be actionable.

Under M.G.L. Chapter 214 § 1B:

A person shall have right against unreasonable, substantial or serious interference with his privacy.  The superior court shall have jurisdiction in equity to enforce such right in connection therewith to award damages.

Continue reading →

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hallwayIn March of 2008, Frank Battaglia was a resident and patient of the Concord Health Care Center in Concord, Massachusetts.  Mr. Battaglia alleged that the Defendant Health Care Center had a duty to provide competent nursing and other care to the Plaintiff.  Additionally, the Plaintiff alleged that the Defendant negligently failed to provide proper and competent care, it carelessly and negligently failed to design and adhere to an appropriate plan of Care, it negligently failed to provide a safe living facility and environment to the Plaintiff, it failed to provide adequate and proper supervised care as needed, and it failed to properly assess and monitor the Plaintiff’s underlying medical condition.  As a result of the purported negligence by the Health Care facility, the Plaintiff alleged that he was caused to suffer permanent loss of function and mobility and ultimately filed a suit that proceeded to the United States District Court in Massachusetts.

In addition to the negligence claims brought above, the Plaintiff claimed a violation of Massachusetts General Law Ch. 93A, the consumer protection statute.  The Plaintiff alleged that while the Defendant was engaged in a trade or commerce (as defined by the statute) the Defendant misrepresented the quality of the services it would provide and failed to provide services in compliance with existing state and federal statutes, rules, and regulations.  As such, it was alleged that these actions (or inactions) rose to the level of unfair or deceptive trade practices for purpose of the statute, which allows for triple damages and the possibility of attorney’s fees in certain circumstances.  The Defendant filed a motion for summary judgment in response to the Plaintiff’s 93A claim.

The Health Care facility argued that the Chapter 93A claim should be dismissed based on a previous ruling by the Supreme Judicial Court in Darviris v. Petros, 812 N.E.2d 1188 (Mass. 2004).  In that case, the court held that medical malpractice was not remediable under Chapter 93A.  However, the court did hold that a Chapter 93A case may be allowed in certain circumstances.  Specifically, the court wrote: Continue reading →

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cancerA Worcester jury recently returned a verdict for $1.95 million dollars against two doctors practicing out of Saint Vincent Hospital in Worcester.  The allegations were as follows: in 2003 the Plaintiff went for a lung biopsy at Saint Vincent Hospital.  The lung biopsy resulted in a determination that the Plaintiff had cancer.  The Plaintiff was concurrently being treated for an immunodeficiency condition, but this information was not relayed from the oncologist to the hematopathologist who ultimately diagnosed the cancer.  After detailing to the Plaintiff-patient that he had Stage III cancer, he was advised to undergo chemotherapy and a bone marrow transplant.

The patient received multiple cycles of chemotherapy and ultimately received a bone marrow transplant.  After weeks of this grueling treatment it was discovered that the patient did not have cancer.  His underlying immunodeficiency condition mimicked cancer in the lung.  Had the appropriate health care providers communicated and exercised due diligence in the care and treatment of the Plaintiff, his treatment would have been reduced from chemotherapy to a manageable monthly medication.  Instead he went through the strenuous process of chemotherapy and an unnecessary bone marrow transplant.  The transplant included various complications that ultimately caused the Plaintiff to succumb to a graft versus host disease which resulted in his death.

In awarding the Plaintiff’s estate $1.95 million dollars, the claims were predicated on a medical malpractice cause of action known as lack of informed consent.  Under the theory of lack of informed consent, a patient must consent to treatment even in a life threatening situation.   In order to recover in an informed consent action, the Plaintiff must prove the duty of the physician to disclose the information to the patient. This is further broken down into four components: Continue reading →

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1334532_48594781As the shades go up and windows open to begin the annual task of spring cleaning, many individuals face only the trouble of allergies and dust mites as a hindrance to this accomplishment.  This was not the case for Geraldine Moran.  As she began her annual spring cleaning routine in 2005, she used a six foot tall ladder to accomplish her mission.  As she was cleaning, Ms. Moran fell and broke several ribs.  She was immediately taken to, what was previously known as, Jordan Hospital in Plymouth, Massachusetts.  Doctors evaluated Ms. Moran and made the decision to transport her to Massachusetts General Hospital as that facility would seemingly have the appropriate staff, equipment, and facilities to help treat Ms. Moran.

Geraldine Moran subsequently presented to Massachusetts General Hospital for her injuries.  While at the hospital, the doctors evaluated Ms. Moran and determined that she cracked her ribs in an unusual manner.  One rib in particular was noted as being cracked in such a way that it’s fine tip was close to Ms. Moran’s aorta.  The aorta is the largest artery in the body which stems from the left ventricle of the heart.  This is vital to the human body as it distributes oxygenated blood to all parts of the body.  Hospital staff did not treat Ms. Moran immediately.  Instead, she was kept overnight for evaluation and was given an epidural for pain. It was also noted that the time of her stay at MGH, she had a persistent cough.  At some point at night or in the early morning hours, the cracked rib with a razor point edge punctured the balloon like aorta during a coughing fit.  Ms. Moran went into cardiac arrest in the early morning hours.  She was pronounced dead at 9:49 am.  An autopsy revealed a 1 centimeter hole in her aorta by the jagged edge of her broken rib.  She was 62 at the time of her death and left three children behind. Continue reading →

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booksMany cases in Massachusetts rise and fall on the testimony of an expert who has been commissioned by either the Plaintiff or the Defendant to help prove (or defend) their position.  Often times an expert is most commonly used in either a medical malpractice or products liability case.  A medical expert (normally a physician or a nurse) is brought in to discuss the standard of care applicable in a given case and whether the potential Defendant met or failed to meet the standard.  In a products liability case, an expert is most likely retained to discuss the feasibility for an alternative design and whether the absence of such safe guards caused or contributed to an injured Plaintiff’s damages.

In a recent decision out of the Appeals Court in Massachusetts, Jessica Christian, a Plaintiff, brought suit against an anesthesiologist at the Beth Israel Deaconess Medical Center.   The Plaintiff, who received anesthetic care from the Defendant as part of her hysterectomy, claimed that she suffered from numbness in her hand and forearm after the surgery.  She consulted with a neurologist who causally related her injury to the anesthesia she received by the Defendant.  The Defendant filed a motion with the court claiming that there were no issues of material fact in dispute that rise to a triable level.  Put another way, the Defendant asked for the case to be dismissed based on the facts of the case.  The court looked at the information presented on both sides and ultimately dismissed the suit due to a failure of the Plaintiff to establish proof of negligence and causation.

Under the Massachusetts common-law of evidence, there are five foundational requirements for the admissibility of expert testimony. A party seeking to introduce expert testimony must show: Continue reading →

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emergency-room-65898-mThe Emergency Medical Treatment and Active Labor Act, passed by the United States Congress in 1986, ensures that the public receive access to emergency medical services, without regard as to whether or not that individual has sufficient funds to pay for those services. Congress enacted EMTALA, in part, after a growing number of allegations in which private hospitals had refused to treat individuals that did not have the resources to pay for medical services. These hospitals would “dump” patients on publicly funded hospitals that were already overcrowded with sick patients.

 Under EMTALA, hospitals with an emergency department are required to:

  1. provide an appropriate medical screening examination to any individual who comes to the emergency department;· to provide necessary stabilizing treatment to an individual with an emergency medical condition or an individual in labor;
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medicationsIn the past few years, more and more litigation has ensued concerning pharmaceutical drugs and the potential hazards associated with those medications.  In a typical situation, a consumer has been prescribed a certain medication and after taking the recommended dosage (by the prescribing physician), the consumer develops some side effect that was omitted from the warning.  As a result, the consumer brings suit against the drug’s manufacturer alleging a cause of action predicated on negligence.  The consumer must show that the potential Defendant had a drug that it put into the stream of commerce, that there was a negligent design due to the manufacturer’s omission of a meaningful warning, that had the consumer been made aware of the warning he or she would have avoided the product, and that the consumer has been harmed as a result.

With the growing cost of prescriptions, generic drug manufacturers have stepped up to offer alternatives to the high price of name brand drugs.  Name brand drugs carry a cachet associated with their usage due to the rigorous testing and studies their drugs go through in order to get approval from the Food and Drug Administration (FDA).  After this testing is complete, and the beneficial effects of the drugs are substantiated, the drugs are allowed to be placed on the market for direct buy or prescription.  Generic drug manufacturers can circumvent the costly testing process by showing the FDA that they have drugs that are the bio-equivalent of the already approved name brand drug.  In addition to showing bio-equivalence (meaning that the substance of the pills are identical), the generic drug manufacturer must agree to have the same label information- including the same warnings. Continue reading →