Medical Malpractice Wrongful Death

Posted on August 29, 2008 by Paula Strand

Wrongful death in a medical malpractice.

Medical malpractice is a serious issue in our hospitals and is a leading cause of wrongful death. Over 225,000 people die from medical malpractice related injuries in a single year. A US Department of Justice report in 2007 noted that the number of payouts stemming from medical malpractice cases increased 40%. According to a new study by the Department of Health and Human Services (DHHS) Agency for Healthcare Research and Quality (AHRQ) one of every ten patients nationwide who died within 90 days of surgery did so because of a preventable medical error. The study also found that those same errors cost nearly $1.5 billion annually. We are taught to trust doctors and follow their advice as it pertains to our health. After all, doctors go through an extensive course of training, pass a medical board exam and complete several years of residency, which thoroughly prepare them to treat and protect our health. Unfortunately, despite all of these safeguards, medical errors are all too common.

Medical error may turn a routine medical procedure into a tragedy. Generally, a medical error is not necessarily medical malpractice. A deviation from the standard of care is what makes a medical mistake a potential malpractice claim. This is known as medical negligence. Some medical errors include surgical malpractice, medication errors, bacterial infections, birth injuries, dental malpractice and diagnosis errors. Often, preventable medical mistakes result from staff failure to follow standard policies and procedures. Some suggest that medical errors occur due to lack of sleep. Others believe that the doctors service too many patients in too short a time. After being on duty for many hours, physicians, nurses and other medical workers may not communicate well due to fatigue, or time constraints with the numerous patients.

Many states have enacted “apology laws” for healthcare workers. These laws provide for open expression of regret, sympathy or compassion by physicians and other healthcare providers without fear of such apology being used against them in a malpractice suit. These laws are purportedly designed to diminish the number of lawsuits against medical workers by providing families and friends of victims with a sense that the medical provider regrets the unfortunate or tragic outcome of the medical error. The apology laws are designed to encourage healthcare providers to speak candidly with the victims. These laws conflict with the advice given to medical providers by their malpractice insurance carriers who advise doctors not to admit any errors unless they are protected by legislation. Moreover, many hospitals waive costs of medical bills when involving medical errors with the patient.
 

When a victim dies as a result of a medical malpractice, the decedent’s family may bring two distinct claims. One is an action brought on behalf of the personal representative of the deceased, claiming recovery for the injuries suffered by the victim. (“survival action”). This action is for compensation to the victim’s estate for pain and suffering and other damages, as well as for actual expenses incurred by the victim that were suffered up to the moment of death. The other action is a “wrongful death action” brought by the relatives of the victim who are seeking compensation for their relative’s death. In survival action, damages are measured in terms of harm to the victim. The personal representative serves as the victim’s agent. In a wrongful death action, damages are measured in terms of harm to loved ones as a result of the loss of the victim. The surviving relatives do not serve as agents for the decedent nor act on their own behalf for their own loss. While Maryland and the District of Columbia allow the victims to bring both actions, Virginia law allows to bring only one of the actions, leaving the victim’s family or the decedent’s estate without any compensation (Virginia only allows one recovery for a single injury).

The main difference between survival action and wrongful death action is that if death is instantaneous, there can be no cause of action except for medical bills and funeral expenses under the survival statute. This limitation creates a fundamental unfairness, as a parent who does not get to see their children grow up has suffered a great loss, just as children who grow up without their parents have suffered. The survival action law gives that claim to the children and not to the parents under the survival statute.

One question families who have lost a loved one by medical malpractice ask is what is the maximum recovery they can receive for their loss? Assuming no problems with insurance or collectability, Metro Verdicts Monthly reports that the median settlement and verdict in Maryland for wrongful death medical malpractice cases over the last 20 years is $900,000. This is far more than the verdicts in Virginia and the District of Columbia, which range between $750,000 and $665,000. However in 2005, Maryland legislature reversed that trend by enacting a cap on non-economic damages in wrongful death actions which is currently $650,000, regardless of how much the jury award is. Virginia and the District of Columbia do not place the same limitations on the verdicts. Maryland provides for $650,000 as the maximum recovery in a death case when there is only one wrongful death beneficiary. The wrongful death cap with two or more beneficiaries in Maryland today is $812,500. Moreover, the cap combines wrongful death and survival actions, even though in Maryland one can bring both survival and wrongful death actions. The non-economic recovery is capped at $650,000 or $812,500 accordingly. The new cap on non-economic damages in wrongful death malpractice cases has had an impact on the amount of verdict awards in Maryland.

There are no caps on economic damages. Economic damages include not only medical expenses associated with the victim’s treatment, but also lost wages from the time of the accident/malpractice and death, as well as future lost wages. A future lost earnings award is allowed for earnings “reasonably certain” to result from the injury and are awarded by the jury (or judge) in a lump sum. But, obviously, the computation of future lost earnings is not exact and to some degree requires speculation about the decedent's life expectancy and expected work experience.
 

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Maryland Personal Injury--Tort Reform II

Posted on August 15, 2008 by Paula Strand

Tort Reform II

Tort reform ranges from legislation that directly affects certain areas of tort law, such as medical malpractice, to changes in various rules, defenses and limits applicable to cases that can impact how much an individual or a group receives in damages.  Some of the tort reform proposals to date and laws based on the idea of tort reform have involved limits on punitive damages or non-economic damages in personal injury cases, moving class action lawsuits from state to federal court, or limiting frivolous lawsuits. In February, President Bush signed a sweeping overhaul of the class-action lawsuit process (Senator Obama was one of the 18 Democratic senators who voted in favor of the bill when it was in the Senate). Only a minority of tort cases will be affected by these laws, but the people affected really need the compensation and/or have been done an egregious wrong. Reform opponents argue that the current legal system produce safer products and drugs. They claim that if the right to sue is restricted, it may result in people not having the resources to get into the courts and businesses will have much less incentive to provide safe products.In the area of medical malpractice, tort reform advocates claim that insurance premiums will decrease, making medical care more affordable and eliminating a disincentive for doctors to practice medicine. In contrast, tort reform critics contend that high medical malpractice insurance rates are a result of the cyclical nature of the insurance industry, lack of competition, mismanagement of reserves, and a decline in investment income. Here are some of the tort reform issues:

 

Noneconomic damage caps. Non economic damages compensate for injuries and losses not easily quantified by a dollar amount, such as loss of enjoyment of life, loss of consortium, or severe physical impairment. This compensation is for the family of the victims who have died or been severely injured. There has been a lot of publicity in connection with huge awards running into the tens of millions of dollars.  Noneconomic damage caps limit the amount for a victim who wasn't damaged economically. In contrast, if the same person's capacity to earn money were damaged as a result of noneconomic damages, there would be no limits on that figure.

Punitive damages caps. These awards are designed to punish outrageous behavior such as companies or individuals who knowingly injure others. Reform opponents argue that by capping punitive damages, there is less cost to companies who put out defective products. Those in favor of tort reform deny that companies would benefit in any way by manufacturing and marketing defective products.

Contingency-fee limits. In many tort cases lawyers do not charge their clients an up-front fee, but  receive a percentage of any monetary award the client receives. Limits on contingency fees would curb the large amounts some lawyers and law firms make on such cases, tort reform advocates say. On the other hand, anti-tort reform groups believe that many poor consumers who were wronged wouldn't have access to effective legal representation if such fees were capped because lawyers couldn't afford to spend the time and money necessary to win such cases.

Other tort reform issues include:

·         Limits on prejudgment interest that would either abolish or greatly restrict the amount of interest on a consumer's award between the time the suit is filed and when a judgment is rendered.

·         Restrictions on a company's liability to compensate victims when several companies are found at fault. In this case, if one or more of the at-fault companies goes bankrupt, consumers who were wronged could receive substantially less than awarded by a judge or jury. While under the current system, consumers may recover the amount of full award from a single defendant regardless of whether the other defendants are solvent.  

·         Rules that would allow juries and judges to reduce the amount of compensation by the amount of any insurance or disability coverage the victim will get.

A factor often overlooked by the proponents of tort reform is not what judicial awards cost the big companies, but what injury and accidents cost the economy and society in terms of lost productivity and the impact on family members who have to take care of the disabled. Some opposed to tort reform claim that accident costs dwarf the costs in the tort system.

Most states have instituted some type of tort reform during the past 10 years. Virginia has done a lot over the last 25 years to enact liability reform. The state has a cap on liability, which has gone from $750,000 to $1 million to $1.6 million. The cap covers economic and non-economic grievances. Furthermore, those caps cover all providers involved in an alleged incident of malpractice, so if the hospital, doctor and nurse are each sued, the caps apply to all parties taken together, not individually. Maryland initiated tort reform in 1986, limiting the amount of non-economic damages patient may receive in medical malpractice cases. The current cap of $1.4 million increases with inflation. These reform efforts has had mixed success, but proponents are working at the federal level to pass laws dealing with class action lawsuits, medical malpractice and asbestos-related claims, among others.

Although The United States is a country with more tort lawsuits than most other countries, in most countries that have lower tort lawsuits, there is a more extensive social safety net. Our country has a free market approach to health care, disabilities and other social issues which also become economic problems. Our tort system is designed with our economic system considered in order to compensate for the lack of social services. In many countries with tort reform, there are more stringent regulation and provisions for health care, disability, and wage replacement, leaving its citizens with basic necessities if injured. In America, many injured people are facing destitution if they are badly hurt.  

 

 

 

 

 
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Medical Malpractice Cerebral Palsy

Posted on August 7, 2008 by Paula Strand

Medical Malpractice – Cerebral Palsy

Cerebral Palsy is a term used to describe a group of disorders caused by brain damage that affect body movement and muscle coordination. It is a non-progressive disorder which means it will not worsen over time, nor will it be cured. Brain damage that causes Cerebral Palsy can happen during pregnancy, the birth, or shortly after birth; and can be attributed to illness during pregnancy, pre-term birth, or a lack of oxygen to the baby during birth. In the early childhood years it can develop due to certain types of infection, a lack of oxygen to the brain, severe jaundice and other factors. Over 750,000 children and adults in the US suffer from some form or show one or more symptoms of Cerebral Palsy. About 8,000 babies are diagnosed with Cerebral Palsy every year. Cerebral Palsy patients are often diagnosed with the disorder before 18 months of age, usually after  parents notice infants have not reached certain developmental milestones such as crawling or rolling over.

Effects/Symptoms

Some of the effects of Cerebral Palsy are involuntary muscle spasms, awkward gait, poor balance, difficulty swallowing, sight or speech impairment, seizures, abnormal sensation and perception, or mental retardation. Additionally patients with Cerebral Palsy may experience difficulty with bladder and bowel control, difficulty eating, skin disorders, breathing problems because of poor posture, or learning disabilities.

Types of Cerebral Palsy

There are three main types of Cerebral Palsy: spastic, athetoid, or ataxic. Spastic cases, the most common, affect 70 to 80 percent of Cerebral Palsy patients, and are further broken down into three categories. Patients whose lower extremities are affected more so than upper are classified as spastic diplegia;  patients who experience difficulty with only one side of the body are classified as spastic hemiplegia; and patients whose whole body is affected are classified as spastic quadriplegia. Cases of athetoid Cerebral Palsy affect roughly 20 percent of Cerebral Palsy patients. Its characterized by involuntary motions, trouble holding a steady position, or slow, writhing movements. Such patients often have difficulty getting their hands to a certain spot or holding on to objects. Ataxic cases are far less common, affecting less than 10 percent of Cerebral Palsy patients. Affecting balance and depth perception, ataxic Cerebral Palsy patients have difficulty walking steadily or when trying to execute a swift movement. Basic motor skills may also present difficulty.

Diagnosis

Diagnosis is made through testing the infant’s motor skills and examining mother and infant’s medical history. Doctors will try a hand test. Most babies under 12 months do not favor one hand over the other and will reach for an object with the hand that is closer to it. Infants with spastic hemiplegia will often show a hand preference, using the hand that is unaffected and therefore stronger and more manageable. Doctors will rule out other conditions that may cause movement disorders and keep a watchful eye to make certain symptoms are not progressing or worsening. Certain tests that examine the brain, such as MRI, CT scan or ultrasonography may be used to check for abnormalities in brain tissue or structure. Lastly, doctors will most likely check for other conditions that Cerebral Palsy patients often exhibit, such as seizures or vision and hearing problems.

Treatment

Cerebral Palsy is not curable, but with proper treatment and management patients can learn to function and live more effectively. The earlier the disorder is treated the better the chance the child has to develop and overcome difficulties or to learn alternative methods to achieve the desired result. Physical therapy and stretching programs can help patients improve gait and strengthen muscles, and help limit contractures. Occupational therapy can help patients work within their limits and maximize their function. Speech therapy helps patients learn to communicate effectively by learning how to control mouth and jaw muscles. Massage therapy can help keep tense muscles relaxed, strengthen muscles and keep joint flexible.

Prevention

Cerebral Palsy can be prevented through a few precautionary measures. Immunization against measles for pregnant women who have not already been immunized is key. Proper treatment of jaundice if the newborn appears to be affected with it is helpful. Other measures are aimed at preventing premature birth, such as reducing the risk of exposure of pregnant women to virus's and bacterial infections, avoiding x-rays and certain medications, proper control of diabetes or nutritional deficiencies, and adequate prenatal care.

Medical Negligence

Often cerebral palsy can be attributed to the fetus not receiving enough oxygen during the birth.  If this is the case, a failure or a delay in performing a C-section can result in the brain damage that causes cerebral palsy. If the baby's heart rate or oxygen flow is not monitored properly, resulting Cerebral Palsy could be fault of the hospital staff. If Cerebral Palsy is the result of hospital staff not responding to birth complications appropriately they can also be held responsible.

 

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Med Mal Reports

Posted on January 23, 2008 by Paula Strand
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Nearly $1M awarded wrongful death

Posted on December 19, 2007 by Paula Strand

Nearly $1M awarded in wrongful death
Originally published April 04, 2006
By Kate Leckie
News-Post Staff

FREDERICK -- A Frederick County Circuit Court jury has awarded $935,000 to the family of a Thurmont man who died about two weeks after having his gallbladder removed at Frederick Memorial Hospital on Aug. 7, 2002.

Deliberating about eight hours following a nine-day medical malpractice trial, the jury of four men and two women found that nurse Abu Kamara and Dr. Steven Nagel violated adequate standards of care for Lester Moser. They reached their verdict about 10 p.m. Friday.

The jury only placed damages against Mr. Kamara and his employer, OMV Medical Inc., ruling that it was the nurse's failure to keep Dr. Nagel informed of the patient's worsening condition that led to Mr. Moser's fatal injuries, according to documents filed at the Frederick County Courthouse.

Mr. Kamara failed to contact Dr. Nagel about three key factors: that Mr. Moser was complaining of severe pain Aug. 9, 2002; that a tube needed for suctioning was not inserted in a timely fashion; and that the patient had vomited.

Transferred to Johns Hopkins Hospital on Aug. 21, 2002, Mr. Moser died two days later of sepsis and organ failure, court documents state.

Mr. Moser, a lifelong Frederick County resident, was 79 when he died.

Virginia Moser filed the wrongful death suit Sept. 16, 2003, about a year after her husband's death from complications arising from the elective surgery.

Citing her husband's conscious pain and suffering, funeral and burial expenses, the suit sought more than $100,000 in damages for the death of her husband of 56 years and the father of her three grown children.

The jury awarded $55,000 for past expenses related to Mr. Moser's medical care; $500,000 in noneconomic damages to his estate; $250,000 in damages to his wife; and $130,000 total in damages to his children.

Contacted Monday by telephone, Ms. Moser had little to say about the trial that ended years of legal maneuvering. "It was hard," she said.

Son Wayne Moser said the family was satisfied with the verdict.

"We're not the type to sue, but we were upset with the way my father's care at the hospital was handled," Mr. Moser said. "You put your family member in the hospital, and something horrible like this happens.

"This has been a great loss for our family," he said.

John J. Sellinger, the lawyer representing the Mosers, said the family was gratified that the jury found in their favor.

"It's been difficult emotionally for them to relive such a painful event. I never met him, but Lester Moser sounds like he was a wonderful man," said Mr. Sellinger of the Silver Spring office of Greenburg & Bederman. "They're really good people."

Mr. Moser's obituary referred to an upbringing on the family's farm and time spent in the orchard.

He also worked as a school bus driver and rural letter carrier.

Mr. Kamara and OMV Medical Inc. of Takoma Park were represented by Stephen J. Cullen of Miles & Stockbridge in Towson. A phone call seeking comment Monday was not returned.

Before the case went to trial, Dr. Kevin Hurtt, who performed Mr. Moser's surgery, and Frederick Memorial Hospital were dropped as defendants.

Judge G. Edward Dwyer Jr. presided over the civil trial.

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