$15 Million Verdict Against Property Mgmt. Company for DUI Accident Involving Employee

Attorney Bruce Broillet of Greene Broillet & Wheeler, LLP in Los Angeles

Attorney Bruce Broillet of Greene Broillet & Wheeler, LLP in Los Angeles

A Los Angeles jury found property management company First Service Residential California, LLC responsible for the acts of an employee who drove intoxicated resulting in a serious car accident. The accident caused a severe injury to the right arm of 49-year-old Tomislav George, leading to almost 30 surgeries in the past four years.

On Wednesday, the jury returned a $15 million verdict with a finding of 20% comparative fault against Mr. George, producing a net verdict of $12 million.

The two-car accident happened in Pasadena, CA on the 134 freeway on St. Patrick’s Day, March 17, 2013. George contended the driver, Lance Sandman, was in the course and scope of his job as a property manager for the upscale Pasadena condominium complex, the Prado. George was on the board of the Prado Homeowner’s Association. George contended that Sandman took George to an Irish bar to scout ideas for a St. Patrick’s Day Party to be held the following year at the Prado.

Sandman became intoxicated at the bar and proceeded to drive George home when the accident happened. The defendant claimed that this was simply a social event of two men drinking on St. Patrick’s Day and was not related to business. The defendant claimed that George had also become intoxicated and should not have ridden in the car with Sandman.  The defendant denied that the visit to the bar was in any way related to business, and further claimed that Sandman’s actions were not in the course and scope of his employment.

DUI conviction

Sandman had been convicted of driving under the influence six months after being hired by First Service in 2007, and had not told his employer about the conviction. George’s attorney produced evidence that Sandman should have been registered in a DMV “Pull Program” long before the date of the accident. The Pull Program provides to an employer an employee’s driving record. If he had been placed in the Pull Program, First Service would have been made aware that Sandman had been convicted of a DUI and would have taken action to either terminate him or restrict his driving privileges for the company well before the date of this incident.

At trial, lead trial plaintiff attorney Bruce Broillet, with the law firm Greene Broillet & Wheeler, LLP, argued that Sandman was in the course and scope of his employment and that the company was negligent.

“When a company knows it can be held financially liable for its failures or the failures of its employees, it will be motivated to keep everyone’s safety a high priority,” said Broillet.

The plaintiff’s legal team included Bruce Broillet, Alan Van Gelder and Taylor Rayfield with Greene Broillet & Wheeler, LLP, which is a Santa Monica plaintiffs’ firm dedicated to fighting for the rights of injured consumers across California to improve public safety and demand accountability.

Jury Awards $39.5 Million to Woman Who Fell Through Illegal Fire Escape, Paralyzing Her

Anastasia Klupchak was paralyzed when she fell through an unguarded "vertical ladder" fire escape whose design had long been outlawed.

Anastasia Klupchak was paralyzed when she fell through an unguarded “vertical ladder” fire escape whose design had long been outlawed.

A Manhattan jury awarded a 30-year-old former NYU student a record-setting $39.5 million after she fell through an unguarded “vertical ladder” fire escape whose design had long been outlawed.

The verdict, which cannot be appealed because it was subject to a “high-low” settlement agreement requested by the defense, will give Anastasia Klupchak $29 million as soon as next month, according to the law firm of Kramer, Dillof, Livingston & Moore which represented the plaintiff.

Anastasia “Sasha” Klupchak was a 22-year-old NYU honor student and varsity soccer player back in November 2008 when she was visiting a friend’s fourth-floor apartment at 82 Second Avenue in Manhattan. At approximately 11:30 in the evening Sasha joined two friends out on the fire escape which was at the back of the apartment.

As she turned to climb back through the kitchen window, she fell through an unguarded opening in the fire escape platform. She fell 12 feet to the roof below and sustained a severed spine. She is paralyzed from the waist down and will be confined to a wheelchair for the rest of her life.

Unlike the traditional fire escapes that cover tens of thousands of New York City buildings, this design had no angled staircase or guard rail. Instead, it had a 34-inch gap with no handrails or guards, and people having to use it would have stretch or leap across the opening and grab the vertical ladder that led to the ground.

Design outlawed in 1928

As one juror commented after the verdict, “I have twins. I couldn’t imagine putting one child unguarded on the platform while I tried to reach across the opening with the other child in my arms. No wonder this design was declared illegal.”

The fire escape is of a design that most New Yorkers have never seen because vertical ladder fire escapes were outlawed in 1928 by the New York State Legislature. To further emphasize the need to replace all existing vertical ladder fire escapes, the law was amended in 1948 to require that all such models had to be replaced within a year.

Thomas Moore of Kramer, Dillof, Livingston & Moore

Plaintiff attorney Thomas Moore of Kramer, Dillof, Livingston & Moore

The Plaintiff’s attorney, Thomas Moore of Kramer, Dillof, Livingston & Moore in Manhattan said, “This was a shocking accident that never should have happened. This type of fire escape has been illegal in New York since long the defendants purchased the building in 1981, and the building owners and managers knew it. Yet they allowed the fire escape to remain in place for 27 years – when the accident took place. Sadly, Sasha paid a terrible price. But hopefully, this will send a clear message to landlords through the City to replace these dangerous fixtures immediately. There are still too many of them out there.”

Today, Ms. Klupchak now 30, lives near Atlanta, Georgia and teaches film at Agnes Scott College in Decatur, Georgia. She expects to receive her PhD in film from Emory University in May.

The building was owned by First East Village Associates, whose principal Bernard McElhone took the stand. Mr. McElhone, argued that Ms. Klupchak shouldn’t have been out on the fire escape; that it was not a balcony. When pressed by Tom Moore, McElhone admitted that tens of thousands of New Yorkers regularly used fire escapes for other than emergency egress.

He admitted under cross-examination that there was no provision in the lease prohibiting use of the fire escape for social purposes – while there was an explicit prohibition against tenants using the roof.  And he admitted that it was not illegal for tenants to use the fire escape.  At the conclusion of his testimony, McElhone “confessed” – a word that McElhone’s own Attorney Peter Kopf tried to get the jury to ignore – that Ms. Klupchak deserved some compensation for injuries, pain and suffering.

Jury Awards $11M Against Center That Let Juvenile Escape, Later Shooting A Man

Plaintiff Dominic Guerrini of Kline & Specter in Philadelphia

Plaintiff Dominic Guerrini of Kline & Specter in Philadelphia

PHILADELPHIA – A Court of Common Pleas jury awarded $11 million in finding a national health and behavioral rehabilitation chain, Devereux Foundation, liable in the shooting of a Philadelphia man by a resident who had escaped from one of its juvenile placement facilities.

The incident occurred at 2 a.m. on June 23, 2011 as Eric Johnson, now 47, returned home from his job as a nursing assistant and technician at St. Christopher’s Hospital. He was shot in the side as Shykir Crew attempted to rob him only hours after Crew walked out of a Devereux facility in Glenmoore, Chester County.

The bullet fractured several ribs and lodged in Johnson’s spine, where it remains, causing incomplete paraplegia with paralysis that leaves him walking only with great pain and often confined to a wheelchair. He also suffers from bowel and bladder problems as well as post-traumatic stress disorder from the incident.

“I’m happy that Mr. Johnson will be able to now get the care he needs. This verdict will hopefully send a message to Devereux that they need to do a better job supervising these vulnerable residents,” said Dominic Guerrini, of Philadelphia-based Kline & Specter, PC, who represented Johnson with co-counsel Colin Burke.

Scene of earlier escape

Crew was convicted of aggravated assault and related offenses and is in prison. At the time of the 2011 incident, Crew had been ordered to the Devereux facility by a judge because of behavioral issues, including prior arrests for burglary and drug possession.

The Devereux facility in Glenmoore is the same facility from which a 17-year-old boy recently escaped and allegedly went on to attack a 72-year-old woman in her Chester County home. She was found, dehydrated and bruised, after four days, bound and locked in a closet. The teenager was arrested earlier this month.

The Devereux Foundation employs more than 7,000 people and operates a network of clinical, therapeutic, educational and employment programs across 13 states, including Children’s Behavioral Health Services in Glenmoore.

The civil lawsuit claimed that Devereux was grossly negligent and reckless in its supervision of juveniles at the facility and was responsible in part for the injuries suffered by Eric Johnson by allowing Crew to simply walk from the facility, which he had done once before. It noted that the lack of supervision occurred despite the knowledge that the juveniles housed there posed a threat to the community if they left.

Networking 101: What They Forgot To Teach You In Law School

Networking 101: What They Forgot To Teach You In Law School

Stand next to the bar at the cocktail party, or next to the coffee urn at breakfast. Just doing that will probably solve all of your networking challenges!

By Sharon Boothe, Vice President, Mass Torts Made Perfect

Everyone knows that being a speaker at a high-profile seminar is the professional equivalent of getting a huge endorsement from some icon in your industry — being asked to speak means you must be knowledgeable, interesting — you must be a “player.” So, you have instant credibility as you wander the halls of the event hotel — you’re invited to the speakers’ reception, you get a special badge and ribbon, you’re elite.

But what if you’re an attendee,  swimming in a sea of people, trying to make a name for yourself at a conference? How do you connect with others and establish yourself among all your peers? You are attending the conference to hopefully learn, but more
importantly, to lay the foundation for future business deals and partnerships. The alliances and relationships that you begin with other attendees at seminars will likely come into play in the future.

The time will likely come when you will need an ally or information — knowing who to contact at that moment will be critical. When that big problem or choice opportunity lands on your desk, you’ll be glad to know who to reach out to for answers, advice, or partnership.

Conferences are where these professional relationships are built and cultivated. Most legal conferences and trade shows are set up with the attendee in mind: the organizers want their seminar to be “user friendly” and they want you, the attendee, to be able to make the most of your time there and then in turn, want to return again and again. Keep
that in mind as you are planning — the organizers should be your resource, your ally.

Here are some specific tips that will help you navigate your way through your next seminar:

#1 If They Build It, You Should Come

At Mass Torts Made Perfect, we’ve established a forum and reception specifically for first-time attendees. First Timers are invited to a workshop where we discuss the different aspects of the program and answer their questions, and then have an informal cocktail party where they can begin the practice of networking.

But out of 200 or so first-timers, only around 100 attend this event organized especially for them. 50% of them are missing out on this exclusive introduction and opportunity to really gain a foothold at the seminar, and the chance to meet some of the speakers who attend. It’s important that if the seminar organizers invite you to a special event that you attend — they are doing this for you! Your time at the seminar is important — don’t waste it wandering around alone when you could be at a great networking event.

#2 Location, Location, Location

Stand next to the bar at the cocktail party, or next to the coffee urn at breakfast. Just doing that will probably solve all of your networking challenges! It may seem obvious, but in the meeting room, sit at a table with other attendees — don’t just hang in the seats in the back. Definitely attend any lunch or meal event and sit at a table with others
— most of the attendees are in the same boat you’re in — they don’t know anyone either.

At MTMP, we work with our vendors to host several meals, and it’s surprising how many people skip the luncheons or reception to go back to their room to read email or go shopping, or go sit by the pool. This is a working conference and every event is meant to help the attendee maximize his or her time there.

#3 Meet the Vendors — They Are Smarter Than You!

The exhibit hall at MTMP is full of vendors who are there to tell you about the latest greatest trends in their industry. Don’t be afraid of them — they won’t bite. (And they often have cool giveaways and raffles for things like flat screen T.V.s and iPads!). These vendors are knowledgeable, enthusiastic, and genuinely interested in finding those
attendees who could benefit from their product or service. If you visit their booths, you’ll find that they have a lot of information to share, and they tend to know a lot of the players and are extremely well-connected. Many of them have done this for 15, 20 years. They are not to be avoided — they are a fantastic resource — use them!

#4 Embrace Your Inner Extrovert

Knowing what your objectives are when you attend a seminar is important — you need to figure out what you want to accomplish while you’re there. If you want to get involved in the new Essure project, approach the Essure speakers after their talk. If you are looking to meet specific lawyers from firms you’re interested in working with, enlist the
help of the seminar staff to find those attendees. You will need to reach out repeatedly, and that can be difficult even for people who consider themselves social. Just remember that it’s a numbers game — the more times you reach out, the more chances you’ll have to make a good connection.

Oh, and lastly — wear comfortable shoes. You’ll be glad you did!

U.S. Chamber Pursues Its Anti-Consumer and Anti-Environmental Litigation

us chamber commerce

The Chamber’s litigation supports almost any action to increase corporate profits no matter the effect on workers, consumers or the environment.

The U.S. Chamber of Commerce has played a leading role in many of the most notorious civil cases of recent years, according to a new report from Public Citizen’s U.S. Chamber Watch. Seemingly willing to support almost any corporate litigant, no matter how egregious its conduct, the Chamber uses its busy litigation practice to advance a reactionary agenda.

This evening, the U.S. Chamber’s Litigation Center will gather corporate interests for its 40th anniversary. At the core of the Chamber’s agenda is the notion that big corporations should be above the law. The Chamber litigates to:

  • Limit the right of consumers, investors and small businesses to use the court system to hold corporations accountable for wrongdoing.
  • Limit government enforcement actions against corporate bad actors.

The Chamber’s litigation consistently favors big businesses over small businesses, seems to support almost any action to increase corporate profits no matter the effect on workers, consumers or the environment, and opposes commonsense regulations that would correct market failures.

Egregious examples

U.S. Chamber Watch analyzed approximately 500 cases over a roughly three-year period in which the U.S. Chamber Litigation Center – a Chamber affiliate – was either a plaintiff or an amicus. The cases cited below stand out as some of the most egregious examples of the U.S. Chamber’s devotion to pro-corporate influence and profits at any cost.

What’s more, Public Citizen’s review of the Chamber’s filings in these cases revealed that the arguments it makes in one case often are at odds with the arguments it makes in another case. Indeed, hypocrisy is an almost pervasive feature of the Chamber’s legal filings.

Among the most shocking cases Public Citizen examined, the Chamber:

  • Sided with British Petroleum over thousands of American small businesses in litigation related to the Deepwater Horizon oil spill in the Gulf of Mexico. The Chamber filed a total of four briefs in support of BP in Deepwater Horizon-related litigation;
  • Filed an amicus brief in support of the CEO of the company that sold Buckyballs, a toy that injured more than 1,700 young children. The Chamber argued that the CEO shouldn’t be liable for recall costs despite his continuing to have sold the toy once its dangers were widely known;
  • Filed an amicus brief in support of for-profit Corinthian Colleges’ efforts to prevent students it had fraudulently misled from suing it in court. The Chamber supported Corinthian in spite its well-documented history of fraud;
  • Sided with the Canadian energy giant behind the Keystone XL pipeline over American ranchers and farmers who didn’t want the pipeline being routed through their land;
  • Filed a brief in favor of striking down Seattle’s $15 an hour minimum wage, claiming that it would be bad for workers;
  • Filed an amicus brief opposing Vermont’s GMO labeling law, arguing that it was supported by “fringe” groups and impinged upon corporations’ free speech rights;
  • Filed briefs supporting foreign multinationals in cases involving Nigerian and Papua New Guinean plaintiffs who alleged that these companies had been complicit in gross human rights abuses including rape, pillage and aerial bombardment of civilians;
  • Filed a brief supporting Walmart’s effort to prevent shareholders from voting on a proxy resolution calling for the company’s board to examine its sale of high-capacity firearms; and
  • Filed a brief opposing municipal anti-fracking ordinances.

“By looking at just who the Chamber supports via its litigation, it quickly becomes apparent that the Chamber is not a voice for small business, but rather a force to defend the interests of big business, no matter the cost,” said Lisa Gilbert, Public Citizen’s vice president for legislative affairs.

Added Dan Dudis, director of Public Citizen’s Chamber Watch project and author of the report, “BP, Corinthian, Keystone XL, Buckyballs, fracking, guns at Walmart – the Chamber’s litigation truly is a little shop of horrors. The Chamber will defend almost any corporate bad actor, and it doesn’t hesitate to advance often conflicting arguments from one case to the next.”

Read the report.

Arkansas Jury Awards $46.5 Million to Toddler in Medical Malpractice Case

Stuart N. Ratzan of Ratzan Law Group: Florida Personal Injury Attorneys

Stuart N. Ratzan of Ratzan Law Group, Florida Personal Injury Attorneys

After a two-week trial, a toddler, Kara Smalls received a jury verdict of $46.5 million in compensatory damages against a family doctor, Dr. Jonathan Lewis, employed by Ouachita Valley Family Clinic, a Baptist Health Affiliate in Camden, Arkansas, and also against Ouachita County Medical Center.

The plaintiff was represented by Stuart N. Ratzan and Stuart J. Weissman of Ratzan Law Group, P.A., Miami, FL. Ratzan Law Group was assisted by Jim Lyons of Lyons & Cone, P.A., Jonesboro, AR and Kimberly Boldt and Mario Giommoni of The Boldt Law Firm, Boca Raton, FL. The verdict was entered on March 9, 2017.

Kara Smalls’ parents alleged that medical negligence and failure to properly manage and treat newborn jaundice in their baby immediately after her birth in June 2014 led to the development of kernicterus in baby Kara Smalls’ brain.

The untreated jaundice led to permanent disability and irreversible brain damage. As a result, the child is locked into a body that will never work properly. She cannot walk, talk, feed herself, or care for herself independently, yet she has normal cognitive function. She can think, feel, and emote like a normal child. She will likely be bound to a wheelchair and adaptive walking aids for the rest of her life. She will also require 24 hour care and supervision as well as intensive medical treatment for the remainder of her life.

Kernicterus is a serious condition that can lead to significant brain damage and in severe cases, death. It is imperative for medical personnel to be able to detect the telltale signs of jaundice and treat it promptly. Newborn jaundice is easy to diagnose with a pinprick of blood and simple to treat with phototherapy lights.

Not follow standard of care

Kara Smalls’ parents alleged at trial that the doctor and hospital ignored generally accepted national patient safety guidelines for the management and treatment of newborn jaundice. The national patient safety guidelines were developed in 2004 and 2009, yet the doctor and hospital chose not to adopt or follow the national standard of care. The defendants ignored the high initial bilirubin reading as well as

The defendants ignored the high initial bilirubin reading as well as the jaundice in the first 24 hours of the baby’s life, yet chose not to do any repeat blood testing and not administer phototherapy lights before discharge. After the baby was sent home, her bilirubin blood level got so high that it penetrated her brain and caused profound brain damage.

“The defendants argued at trial that South Arkansas doctors and hospitals are free to ignore the patient safety rules and do what they want; the defendants argued that the standard of care is lower In South Arkansas than the rest of the country,” said Stuart N. Ratzan, lead trial lawyer for the child.

At trial, Ratzan countered that any community where doctors and hospitals deliver babies, and have available to them the technology to test for bilirubin and to provide phototherapy lights, is a community where the patient safety rules apply. The defendant hospital and the defendant doctor in Camden, AR did indeed have the necessary equipment.

The plaintiffs argued, therefore, that the defendant doctor and defendant hospital in Camden, AR, like everyone else in the United States who treats newborn babies, were required to follow the prevailing patient safety rules. The plaintiffs argued that when doctors and hospitals break the patient safety rules anywhere in the United States, including South Arkansas, they should be fully accountable for the consequences.

“We are encouraged by the jury’s commitment to the patient safety rules for South Arkansas, and we are thrilled that the jury devoted itself to a verdict that would provide for Kara Smalls, age 2 1/2, for the rest of her life.  Newborn babies need and deserve competent medical care in all of the United States, whether it’s Ouachita County, AR, Pulaski County, AR, Miami, FL, or anywhere else in the country,” Ratzan said.

The jury found defendants Jonathan Lewis and Ouachita County Medical Center negligent for violating the national guidelines.

Ratzan Law Group, PA is a boutique trial practice that is dedicated to building and retaining a safe society through diligent and sophisticated advocacy.  It champions its clients’ cases against powerful interests, including insurance companies, hospitals, manufacturers, doctors and corporations in order to hold wrongdoers accountable for the harm they do to others, and to help make sure it does not happen again.

Missouri Jury Awards $29 Million for Failure to Diagnose Disease that Caused Brain Damage

Attorney Grant Rahmeyer of Strong-Garner-Bauer P.C. in Springfield, MO.

Attorney Grant Rahmeyer of Strong-Garner-Bauer P.C. in Springfield, MO.

A jury in Springfield, Missouri, awarded $28,911,000 to a woman who suffered brain damage from a rare copper disorder, which a local hospital failed to diagnose. The hospital refused to conduct a full neurological exam and dismissed her symptoms as anxiety.

Emilee Williams, 24, of Springfield, had undiagnosed Wilson’s disease, which causes too much copper to accumulate in the liver, brain and other vital organs. A former student-athlete, Williams today suffers paralysis, several motor and speech impairment and must be fed through a tube in her stomach.

“We hope this verdict reminds hospitals to give doctors the time to listen to their patients, listen to their families and to raise awareness for Wilson’s disease so that no one will ever have to go through what Emilee went through,” plaintiff’s attorney Grant Rahmeyer of Strong-Garner-Bauer PC, told Law360.

The Greene County jury awarded:

  • $21 million for future medical damages
  • $3.2 million for future economic damages excluding future medical damages
  • $3.2 million for future non-economic damages
  • $1 million for past non-economic damages
  • $511,000 for past economic damages, including past medical damages

In December 2012 Williams visited Dr. Elene Pilapil complaining of fatigue, tremors, balance problems, insomnia, difficulty concentrating crying spells and panic attacks. The doctor told her she suffered from anxiety, refused to send her for more tests, and wrote a prescription for Prozac.

Eight months later an MRI revealed she had brain damage caused by the disease. When diagnosed early, treatment can prevent the progression of Wilson’s disease.

10 Questions to Determine Hospitalist and Specialist Responsibility in Med-Mal Cases

“hospitalist” refers in general to a physician typically trained in internal medicine who exclusively c“hospitalist” refers in general to a physician typically trained in internal medicine who exclusively cares for inpatients.ares for inpatients.

“Hospitalist” refers in general to a physician typically trained in internal medicine who exclusively cares for inpatients.

By Douglas W. Bowerman

Physicians known as “hospitalists” have emerged in recent years due to various economic, political, medical, and social forces on inpatient care, and now are the fastest growing medical specialty. Over the last 20 years, while the number of hospitalized patients and number of specialists available to care for them has remained stable, the number of hospitalists has increased from less than 1,000 to nearly 50,000.

Consequently, most hospitalized patients are now co-managed by both hospitalists and specialists. When you consider a malpractice case involving a hospitalized patient, you will face the task of determining what responsibility each physician held in your client’s medical care.

To clarify:

  • A “hospitalist” refers in general to a physician typically trained in internal medicine who exclusively cares for inpatients.
  • A “specialist” denotes any physician that is not a hospitalist, such as a cardiologist, pulmonologist, general surgeon, or orthopedic surgeon.
  • A “service” refers to any group of specialists within the same specialty, such as the cardiology service; or a group of hospitalists.
  • A “consultant” is a physician belonging to a service who is not the attending of record, and can be either a specialist or a hospitalist.

The goal of this article is to discuss the specific details of cases I use to determine the responsibility each of the involved physicians held to a patient. This information will help you to make this determination yourself, or help you to better understand the advice given to you by your own experts regarding this issue.

I believe I am in a position to provide these opinions, having authored hospital bylaws regarding patient comanagement, and as the only physician in the United States board certified in Internal Medicine with a Focus in Hospital Medicine as well as Quality Assurance, while holding the position of Fellow with the American College of Physicians, the Society of Hospital Medline, the American Institute of Healthcare Quality, and the American Board of Quality Assurance and Utilization Review.

10 Questions to Determine Responsibility

  1. Who was the “attending physician” of record?

Although once the sole factor for determining duty to the patient, “attending of record” is now an almost meaningless title. This is due to the fact that many hospitals mandate all patients be admitted to the hospitalist service as the attending of record with the specialists serving as consultants, while other hospitals utilize written or verbal agreements between the hospitalists and specialists to determine which service will serve as the attending of record on a case-by-case basis. These policies exist regardless of the anticipated level of involvement (and subsequently level of responsibility) of the hospitalist and specialists in that patient’s care.

  1. Was there a prior doctor-patient relationship before the admission?

Consider two patients, both with rapid atrial fibrillation (a common heart arrhythmia typically managed by either hospitalists or cardiologists), admitted by a hospitalist and a cardiologist is consulted to co-manage these two patients. This particular cardiologist has never seen one of these two patients before, whereas the other patient is well known to this cardiologist from prior office visits. With this latter patient, the hospitalist will appropriately “take a back seat” to this cardiologist in terms of management decisions, given the preexisting relationship between that patient and specialist. If that patient suffers a bad outcome for whatever reason, the specialist would bear most, if not all of the responsibility compared to the hospitalist. With a bad outcome in the former patient however, the hospitalist and specialist may ultimately bear more similar responsibility, since each was equally capable of managing the atrial fibrillation, and likely would have been more equally contributing to the patient’s care.

  1. Is there an order or progress note in the chart designating which physician is managing each aspect of the patient’s care?

It is unexpected to find an order or a note in the chart specifying which aspects of care will be managed by each physician. If such notation is present though, it is difficult for a physician to later deny duty for aspects of care specifically identified in writing in the chart.

  1. Which physicians were available to the patient for a bedside evaluation versus a telephone or telemedicine consultation?

The continual ability for the bedside presence of the hospitalist can translate into a greater duty to the patient compared to a specialist who may only be available for bedside evaluations during certain limited hours, or only by telephone. If an adverse event is believed to have resulted from a physician’s lack of physical presence for the patient, the amount of responsibility held by that specialist will be influenced by the patient’s specific issue, by the time of day when the problem arose, and by what information was communicated (and documented to have been communicated) between the hospitalist and specialist about the problem.

The specialist’s absenteeism does not eliminate his or her duty, but it may increase the responsibility of the hospitalist since he or she now must be certain to provide the specialist with all the information needed to remotely manage the patient’s problem at hand, since the hospitalist is functioning as the specialist’s eyes and ears on the patient. The hospitalist needs to be certain to “see” and “hear” with the same acuity as the specialist, or at least have the ability to know the circumstances in which he or she can’t adequately fulfill that role, and communicate that concern to the specialist.

Ask:

  • Did the hospitalist communicate all the pertinent facts?
  • Did the hospitalist portray an appropriate level of concern or urgency of the patient’s situation to the specialist?
  • Did the physicians follow the advice given to each other during the conversation regarding subsequent care of the patient?
  • Did either physician coerce the other into exceeding his or her level of expertise, which then resulted in the bad outcome?

The answers to these will influence in the assignment of responsibility.

  1. Which physician did the nurses contact to address the patient’s problem?

Another indicator of physician responsibility to a patient is noting which physician the nurses call first to deal with a problem.

Consider a patient with a bowel obstruction co-managed by a hospitalist and a general surgeon. After admission, the patient develops increasing abdominal distention with more pain and vomiting. If the nurses first call the hospitalist, prompting an evaluation of that patient by the hospitalist, this is strong evidence that the hospitalist is managing the patient’s bowel obstruction. If this patient then develops a bowel perforation and dies, the majority of the responsibility would fall on the hospitalist. If the situation was reversed, the surgeon would bear the majority of the responsibility.

There is another important question that must be answered first to ensure an accurate assessment of this situation before assigning responsibility: “is the service that the nurses chose to call first consistent, regardless of the time of day and day of the week?” During nighttime hours, specialists are more apt to be at home asleep while hospitalists remain awake in the hospital. To avoid disturbing the specialist, a nurse may choose to summon a hospitalist to handle an acute issue, even if it is more appropriate for (and previously managed by) the specialist. The hospitalist receiving the request may not want to appear to the nurse as being lazy or unwilling to help, and thus addresses the patient’s problem as requested. The nurse and physician will likely document in the chart what transpired that night. This unintentionally establishes a precedent that the hospitalist service is managing that patient’s problem, despite the prior intent that the specialist would be handling that particular issue. This can cause an unintended shift in the level of responsibility during the course of a patient’s hospitalization.

To avoid disturbing the specialist, a nurse may choose to summon a hospitalist to handle an acute issue, even if it is more appropriate for (and previously managed by) the specialist. The hospitalist receiving the request may not want to appear to the nurse as being lazy or unwilling to help, and thus addresses the patient’s problem as requested. The nurse and physician will likely document in the chart what transpired that night. This unintentionally establishes a precedent that the hospitalist service is managing that patient’s problem, despite the prior intent that the specialist would be handling that particular issue. This can cause an unintended shift in the level of responsibility during the course of a patient’s hospitalization.

  1. Who had the ability to make the diagnosis?

Certain diagnoses are made by specialists after performing diagnostic procedures; for example, a gastric ulcer diagnosed by a gastroenterologist after performing an upper endoscopy. If a bad outcome results from the failure to diagnose an ulcer during the endoscopy, or due to a decision by the specialist not to perform an endoscopy despite the patient’s symptoms being consistent with a gastric ulcer, more duty would fall to the gastroenterologist since hospitalists do not perform endoscopies, and are dependent upon gastroenterologists for the diagnostic aspect of that patient’s care.

On the other hand, some diagnoses can be made by either the specialist or hospitalist, such as a myocardial infarction, which is made simply by noting an elevated troponin level in a routine blood test. If this diagnosis was missed, resulting in harm to the patient, neither the hospitalist nor the specialist would be able to claim their lack of training or experience in the field of cardiology as a defense for missing this diagnosis, and both would bear responsibility.

  1. Who had the ability to interpret the critical test results?

Some tests require the input of the specialist if the hospitalist lacks the training or experience to independently determine the correct course of action that should follow an abnormal test result. For example, the report on an MRI of spinal stenosis with spinal cord impingement is recognized as abnormal by any physician. However, this abnormal result is but one of several factors taken into consideration when determining the appropriate treatment for a patient with back pain. If a neurosurgeon determines that surgery is not appropriate, but the patient then progresses to paralysis due to a delay in surgical intervention for that spinal cord impingement, the hospitalist would bear a minimum of the responsibility for this decision, since the hospitalist is dependent upon the specialist to make treatment decisions.

On the other hand, some test results call for treatment available to both hospitalists and specialists. For example, both should know that a CT scan of the lungs showing a large pulmonary embolism typically requires administration of blood thinners. Failure to immediately act upon that test result would be a deviation from the standard of care for both physicians, regardless of their role in the patient’s care.

  1. Who could provide treatment once the diagnosis was made?

An echocardiogram showing acute cardiac tamponade (a large collection of fluid around the heart that impairs normal heart function) needs urgent surgical drainage. This treatment is provided by cardiologists, not hospitalists. If a bad outcome results from a delay in the drainage of that fluid, the specialist would be at the front of the line for holding responsibility.

Some diagnoses simply require treatment with medications which can be ordered by both hospitalist and the specialist alike. Either a hospitalist or a pulmonologist is capable of writing orders for antibiotics and oxygen for a patient diagnosed with pneumonia, and therefore both have responsibility if antibiotics were neglectfully not provided to the patient.

  1. Who was writing orders and notes in the chart?

If one of the two services co-managing a patient consistently documented in the chart about the patient’s physical examination findings and test results and offered an opinion regarding their assessment and plan, this would demonstrate a conscientious interest in the patient’s problem and carry with it a level of responsibility. In contrast, if the other service did not make any notes pertinent to the patient’s problem in the chart, this would give the perception that he or she was not involved with that particular issue, and did not hold themselves out as being involved or having responsibility to the patient.

  1. Who discharged the patient?

If a bad outcome occurs shortly after discharge, the doctor who performed the discharge (writing the discharge instructions, creating the discharge summary, and providing the discharge order) carries a higher level of responsibility regarding that patient’s bad outcome. That physician had the last opportunity to notice any potential instability of the patient, to perform an examination, to order additional tests, to involve another consultant, to postpone discharge, or to arrange for more vigilant outpatient follow up. The discharging physician (usually the hospitalist) does not automatically get saddled with all of the responsibility however, because the discharge often occurs only after a specialist’s approval for discharge, and specialists often have prescribed the specific instructions and follow up plan for the hospitalist to give to the patient at the time of discharge.

Yielding answers

Applying these ten questions to any one potential malpractice case will likely yield some answers that single out the specialist as bearing most of all of the responsibility, while the answers to the other answers may point the finger at the hospitalist. To complicate matters further, the answers to these questions for a particular case are not equally weighted in terms of importance. The specific medical issue in the case, the particular setting of the case, and numerous other factors influence how the answers to these questions ultimately shape the final conclusion regarding the assignment of responsibility. The answer to the question “Who is in charge?” will remain an ongoing challenge for attorneys and experts alike. With the above discussion in mind, you will be able to more thoroughly investigate the medical record yourself in the search for your answer, and have a more informed discussion of the case with your experts.


Douglas Bowerman, MD, FACP, SFHM, FAIHQ, FABQAURP, CHCQM, has reviewed 500 potential medical malpractice cases, with the provision of a dozen depositions and court testimony in several states. The majority of his work is with plaintiff attorneys, but also works with defense counsel. Douglas is a member of the American College of Legal Medicine.

 

Jury Awards $52 Million to Florida Family in Devastating Car Accident

Ervin A. Gonzalez

Plaintiff attorney Ervin A. Gonzalez

CORAL GABLES, Fla. — Attorneys Ervin A. Gonzalez and Patrick Montoya, partners at the Coral Gables-based law firm Colson Hicks Eidson, secured the largest jury verdict in Ocala history for a family involved in a devastating car accident that left five family members, including four children under the age of 12, with permanent and life altering injuries. After a weeklong trial, a jury in the Fifth Circuit Court of Florida in Marion County awarded the Ocala family $52 million in damages in an auto negligence lawsuit.

On Dec. 6, 2013, plaintiff Yolanda Aldana was driving her 2011 Nissan Sentra with her four minor children as passengers. She was stopped at a red light on Maricamp Road at the intersection of SE 31 Street in Ocala when she was struck from behind by the Defendant, Nathan Pyles, who was traveling at a high rate of speed. The force from the defendant’s 2012 BMW caused Aldana’s vehicle to plow into the vehicle in front of her that was also stopped at the red light. Aldana and her four children were severely injured and suffered permanent disfigurement and other injuries as a result of the accident.

Kenneth Herrera, 23 months, suffered severe injuries, including brain and cervical spine injuries, a fractured pelvic, and multiple fractures to his left leg. He underwent numerous surgical procedures, including an insertion of a tracheostomy and feeding tube, bone grafting, and a cervical spine fusion. He is now a paraplegic with no use of his hands, bladder and bowel control.

Anthony Martinez, 10, suffered multiple severe injuries, including a lacerated liver and spleen, degloving of right lower torso, pelvic fractures, a dislocated right hip, and a sciatic nerve injury. He underwent multiple surgical procedures, including skin grafting, and an exploratory laparotomy, and colostomy, coccygectomy surgery, and an insertion of a traction pin through leg and bone. He will require several more surgeries for his injuries.

Kevin Martinez, 12, suffered head and neck injuries, a broken jaw, and bilateral fractures to both legs. He underwent multiple surgeries and was temporary intubated due to an unstable spine.

Alejandro Aldana, 8, suffered a laceration to the left leg, subsequent infection and abscess, an altered gait, lower back pain, and bruising from airbags.

Yolanda Aldana, 39, suffered multiple injuries, including a concussion, brain injury, hip fracture, multiple rib fractures, lacerated spleen, and blunt force trauma to the abdomen and chest.

“We can’t bring back the health of this family who suffered devastating injuries, but at the very least, we can bring them some dignity and respect that they deserve and quality ongoing health care that they so desperately need,” said Gonzalez, who represented the plaintiffs at trial along with co-counsel Montoya.

The Law Firm of Colson Hicks Eidson is a trial firm with nearly 50 years of experience handling local, national and international litigation, and arbitration. Members of the firm have been involved in some of the country’s most high-profile and landmark cases resulting in impactful and precedential rulings.

How Legal Intake and Lead Generation Software Is Lowering Case Acquisition Costs

The Sentinel Group® and Law Ruler™ have come together to create a best in breed, real-time technology link between live inbound calls and CRM intake for greater conversion of cases from leads to signed retainers. 

The Sentinel Group is the legal marketing division of the full-service, lead generation agency OpenJar Concepts® Inc.  

The Sentinel Group has generated several hundred thousand leads and cases over their eight-year timeline using a multi-channel, performance-driven media approach. The agency owns a proprietary system for tracking, reporting and lead aggregation amongst many other marketing and data based functions called TrafTrack®. This system helps to enable lead/intake flow to a client’s CRM, with Law Ruler as the conduit for managing intake.

Law Ruler Software, LLC, is an industry-leading legal case intake & CRM software provider that helps law firms nationwide with signing more cases through their TV, digital media, and other marketing efforts. 

8 Money-Making Benefits of this Live Call to CRM Software Integration include:

  • Cutting-edge, media optimization through actionable data in real time.
  • TrafTrack and Law Ruler working together, actively bridges live call leads with other lead sources under one roof, where the Agent is immediately provided with a caller/potential client record prior to the conversation. 
  • Prior to answering the call, the Agent is aware of the docket type that the caller is inquiring about.
  • Increases agent efficiency for a more satisfactory caller experience leading to more conversion in real time with text / email e-signature. 
  • Smoother intake by allowing the agent to pick up the conversation and find the caller in the system without needing to create records on the fly, thus reducing caller idle time. 
  • Eliminates duplicate entries by posting updates to the correct caller record
  • Increases caller confidence with agent/law firm with noticeable efficiency in the caller experience. 
    • This leads to direct increase of ROI on ad spend through improved conversion of packet out to retainer back. 
  • Once the caller details are in a given client Law Ruler portal, an intake specialist can leverage the comprehensive Law Ruler features such as text e-sign, marketing automation and reminders via text/email, call center, staff task management and CRM functions, as well as powerful reporting.

Adam Warren states, “Ultimately it came down to a dual prong execution to develop this marketing to case acquisition benefit from our end. Our CTO Joshua Guffey and our President, Co-Founder Reno Renaldo had to divide and conquer.  We built a data delivery system that would feed directly into the CRM via Law Ruler as the conduit in real time.  Reno negotiated with the carriers and call switches one by one to accelerate the delivery process. It was an arduous, but worthwhile project and one that can only be executed when each party in the delivery chain is working with proprietary applications that allow for unique updates and capabilities. We always pride ourselves as being as much a tech company as we are a full-service agency and we enjoyed working with such a high level, out of the box thinker as Law Ruler.”

Adam Warren is CEO and Co-Founder of The Sentinel Group ®, the legal marketing division and premium legal brand of full-service advertising firm OpenJar Concepts ®.  The Sentinel Group has become one of the most widely recognized and successful national media brands in lead generation for case acquisition. The core of The Sentinel Group merges the perfect balance between deep media and client relationships with in-house proprietary tracking capability, utilizing our system TrafTrack  ®, for unlimited reporting technologies. The team has over 40 years of combined mass media, performance-driven, lead generation experience, using vehicles such as TV, radio print and digital. The senior management team has successfully been involved in the advertising for nearly every Mass Tort campaign during the last decade plus, dating back to 2001. The Sentinel Group brings all of the pieces of the case acquisition puzzle together providing endless solutions, enabling a cost effective platform for driving quality calls and leads to our network of participating law firms. Simply, this is…. WHERE THE CASE BEGIN ™.

For further information: Contact Phone: 800.TSG.Tort (800.874.8678)

The Web: www.thesentinelgroup.com/legal
Facebook: www.facebook.com/TSGStrong
LinkedIn: http://www.thesentinelgroup.com/linkedin
YouTube: https://www.thesentinelgroup.com/youtube
Email: info@thesentinelgroup.com

Law Ruler Software, LLC, www.lawruler.com is a market-leading legal case intake and marketing automation solution provider.  Whether a firm is managing incoming referrals, leads from TV, billboards, or digital media, our solutions will drive better results and make your team even better.  Our approach is unique since we ensure that each and every client has a solution that meshes with their workflow and how they do business.  Law Ruler’s features include text e-sign, phone call tracking, marketing automation with text and email, task management, workflow automation, and powerful reporting to maximize your firm’s revenues.

What is Law Ruler, YouTube: https://www.youtube.com/watch?v=tgIkRSdp8U0 Please contact us at www.lawruler.com or 954-371-2300