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.

 

Chicago Judge Upholds $52 Million Cerebral Palsy Jury Verdict

Attorney Geoffrey Fieger

Attorney Geoffrey Fieger

Cook County Judge John P. Kirby denied defense motions for a new trial, thus upholding a $52 million award returned by a jury to a now 12-year old boy who was born with cerebral palsy and brain damage caused by medical malpractice at his birth.

The judge brushed aside the motions by the University of Chicago Medical Center complaining about actions by plaintiff attorney Geoffrey Fieger. The case is Isaiah Ewing v. The University of Chicago Medical Center, 13 L 13750.

Fieger of Fieger Law in Southfield, MI, together with Attorney Jack Beam, secured a $53 million verdict on June 29, 2016 for their client, who suffered brain damage at birth due to inadequate practices at the University of Chicago Medical Center – sometimes called University of Chicago Medicine.

For an entire month, the trial progressed and the plaintiff’s legal counsel built a solid case that medical malpractice had occurred but should have been prevented. The defending counsel petitioned for a retrial through numerous post-trial motions but was recently denied by a trial judge

Details of the Birth Injury Case

Twelve years ago, Lisa Ewing came to the University of Chicago Medical Center and told staff that she was experiencing decreased fetal movement from her unborn child, Isaiah. A first-year resident at the clinic evaluated her right away and determined that Isaiah was in fetal distress. However, another 11 hours would pass until an obstetrician would see Lisa.

By the time an emergency C-section was performed, the damage had been done, and Isaiah was born with brain damage that would later be diagnosed as Cerebral Palsy and a seizure disorder, each caused directly by the delay in Lisa’s treatment.

Defense counsel for the University of Chicago Medicine claimed that the defendant did not receive a fair trial. It spoke of procedural errors that allegedly had rendered the case result unusable. Following extensive review, Judge John Kirby denied the retrial request and upheld the verdict in favor of Lisa and Isaiah Ewing, Fieger Law’s client, in late December; the verdict amount was reduced by about 2% in order to correct what was deemed a technical error, though.

The University of Chicago Medical Center must begin the process of paying our client the rewarded verdict. If not, the medical organization must file an appeal to a higher court. It is unknown at this time if the defendant or its counsel intends to do so.

Florida 2nd District Court Says Med-Mal Damage Caps Unconstitutional

Legal MalpracticeOriginally published on The Expert Institute

An appeals court in Florida has declared that damage caps on monetary rewards limiting the recovery amounts of plaintiffs in medical malpractice lawsuits is unconstitutional. This case was decided in the 2nd district court of Florida.

Previously, the 4th district court had also found monetary caps to be unconstitutional in a 2015 case. (North Broward Hospital v. Kalitan, 174 So. 3d 403 (Fla. 4th DCA 2015)).

In 2003, these caps were created to limit the insurance costs for Florida doctors. Since then, non-economic damages caps of $500,000 for pain and suffering, as well as $1 million for wrongful death or severe permanent disability have existed in the state.

Medical injury to newborn

The case in the 2nd district, Port Charlotte HMA, LLC d/b/a Peace River Regional Medical Center v. Iala Suarez (Fla. 2nd DCA 2016)(Case No. 2D15-3434), arose as a negligence action against health care providers during the care of Iala Suarez while she was pregnant. Suarez claimed the alleged negligence of the healthcare providers led to the neurological impairments suffered by her prematurely born child, which will leave her fully dependent for the rest of her life.

At trial, a jury found the health care providers liable for the infant’s injuries. The jury awarded damages to the infant totaling $13,550,000, including $1,250,000 in noneconomic damages. The jury also awarded damages to Ms. Suarez totaling over $9.5 million, including $4 million in noneconomic damages.

When the defendants challenged the damage award as being above the statutory limit, Suarez replied that the statutory cap on noneconomic damages was unconstitutional. The trial court denied hearing the defendant’s challenge, citing the Kalitan case. The 2nd district court concurred that the ruling in Kalitan, which extended a Florida Supreme Court ruling that removed the statutory cap on wrongful death action to medical malpractice actions, was both proper and applicable to the case at hand.

The case Kalitan relied on, Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), determined that the statutory cap on wrongful death noneconomic damages of Florida statute §766.118, violated the right to equal protection under Article I §2 of the Florida Constitution. See Florida Court Rules Malpractice Cap Unconstitutional, Again.

It remains unclear what type of effect will the removal of these statutes have on future medical malpractice lawsuits. Part of the reasoning for the courts deciding to eliminate these caps is that many people feel that the medical malpractice insurance crisis of the early 2000’s is no longer an issue. There are many reasons for this decline – including a decline in the frequency and severity of claims, doctors forming protective groups rather than bearing the cost of insurance themselves, and competition among insurance companies that have stabilized the cost of insurance.

However, another factor that may have helped stabilize both the number of claims and the cost of insurance may have been the damage caps that were instituted.

Jury Awards $30.5 Million to Brain-Damaged Infant

Jed D. Manton, Partner in Harris Penn Lowry in Atlanta, Georgia

Jed D. Manton, partner in Harris Penn Lowry in Atlanta, Georgia

A Gwinnett County, Georgia, jury returned a $30.5 million verdict to a mother and her child who was left severely brain-damaged by a failure to address a problem with the blood flow through the unborn baby’s umbilical cord.

The plaintiffs’ lawyer are  Daniel Weinstock and G. Scott Vezina of Philadelphia’s Feldman Shepherd Wohlgelernter Tanner Weinstock & Dodig, along with Jed Manton of Harris Penn Lowry, assisted by Darren Summerville and Angela Fox of Atlanta’s Summerville Firm.

Manton said that Re’Ayah Louis, now age 4, will need 24-hour care for the rest of her life. “With this recovery, however, there is a substantial likelihood that her quality of life will improve in years to come, as she will now have access to the medical care she deserves,” he told the Daily Report.

The jury allocated 75 percent of the liability to co-defendant Gwinnett Medical Center, and 25 percent to Dr. Williard Hearin and his practice.

The defense argued that the mother had ignored the welfare of her baby during her pregnancy by failing to keep her gestational diabetes under control.

The allegations centered on claims that an ultrasound performed on mother Zetah Louis in her 35th week of pregnancy indicated that Re’Ayah might be suffering from reversal end diastolic blood flow. Instead of immediately planning a delivery, Hearin sent Louis to the hospital for further monitoring and a “maternal fetal consult.”

Manton said there was a delay in admitting Louis to the hospital and in triaging her, and it was several hours before Re’Ayah was delivered by C-section. By then, the child had suffered hypoxic brain injury leading to spastic quadriplegic cerebral palsy, developmental delay and a seizure disorder.

Manton said that the only offer of settlement was one for $2.75 million from the hospital several months before trial, which was declined.

Ohio Jury Awards $28.7 Million in Birth Injury Case

Christopher Mellino of Cleveland, OH

Christopher Mellino of Cleveland, OH

A young family represented by Cleveland medical malpractice lawyer Christopher Mellino has been awarded $28.7 million following a civil trial in Trumbull County.

Mellino represented the parents of now nearly five-year-old Nathan Wolcott who was born with cerebral palsy as a result of oxygen deprivation in 2012.

Judge Peter Kontos awarded $24.9 million for the boy’s future care, $2.9 million for his lost earning capacity and $500,000 each to the child’s parents for noneconomic losses,

The case is Nathan Wolcott, a MINOR by and through his Parents and Natural Guardians Matthew and Jennifer Wolcott v. Nicole Prusky RN. Trumbull County Court of Common Pleas Case No. 2011 CV 01512.).

Symptoms overlooked

According to court documents, the child was born at Trumbull Memorial Hospital and despite the use of a fetal heart monitor, the signs and symptoms of fetal distress were not recognized or acted upon.

The award was based upon Mellino proving that negligent care caused a lack of oxygen to the baby during delivery and resulted in severe irreversible injury to the child’s brain and subsequent developmental delays which cause him to be unable to function as a normal child. The child will require assistance with personal care for bathing, dressing, positioning, hair and mouth care throughout his life.

“It is likely Nathan will require 24/7 caregiver support due to his limited ability to communicate and difficulty walking,” Mellino said. “Nathan will never control his arms and legs normally.”

Mellino, founder and managing partner of the Mellino Law Firm and author of the book Was It a Mistake? Your Ohio Medical Malpractice Questions Answered, has been involved in several large medical malpractice cases during his 30-year legal career.

Pennsylvania Jury Awards $12.7M to Teacher after Tonsillectomy Leads to Brain Damage

Frank A Rothermel is a partner at Bernhardt, Rothermel & Siegel, P.C. in Philadelphia, PA

Frank A Rothermel is a partner at Bernhardt, Rothermel & Siegel, P.C. in Philadelphia, PA

A Pennsylvania jury awarded $12.7 million to a woman who was left brain damaged after doctors removed her breathing tube too quickly after a tonsillectomy.

Plaintiff Sherrell Clayton, a 33-year-old special education teacher, walks with a severe foot drag, because she can’t lift her right leg. She also has decreased function in her right arm and issues with balance, according to her attorney, Frank Rothermel of Bernhardt Rothermel Siegel.

The defendants are anesthesiologist Joseph V. Somers, who was held 70 percent liable, and nurse Lori Chambers was held 30 percent liable, as well as Main Line Hospital and United Anesthesia Services.

Clayton had offered to settle the case for $10 million resolution. The jury award included $5.85 million was for past and future lost earnings and past and future noneconomic damages. The nearly $7 million in damages awarded as part of her life care plan through 2057.

The defense argued that Clayton did not suffer any anoxic brain injury, but rather a reaction to the anesthesia.

But Rothermel pointed to an admission form for Magee Rehabilitation that states she was being admitted for treatment of anoxic brain injury. Main Line Hospital, doing business as Lankenau Hospital, sent Clayton for rehab.

Clayton’s alleged the surgeon, anesthesiologist and nurse anesthetist didn’t perform the proper tests to decide whether the anesthesia had worn off to the point where it was safe to remove her breathing tube. After they removed the tube, they did not monitor Clayton’s oxygen levels for 16 minutes, when her oxygen level was 81 percent, which, according to Rothermel, is “dangerously low.”

Clayton was reintubated, but remained “inappropriately oriented and unresponsive” to questions and commands. She had abnormal, seizure-like movements, according to the court documents.

 

Three Lawsuits Filed for Mismanaged Labor and Delivery by Houston Hospital

Attorney Mo Aziz of Houston Selected for Texas Super Lawyers 2015Three families have filed suit in Harris County, TX, against a doctor and a local hospital in connection with the mismanaged labor and delivery of their newborn baby boys, one who died and two who suffered severe brain damage.

Texas attorney Mo Aziz of Abraham, Watkins, Nichols, Sorrels, Agosto & Friend in Houston is representing three families. Chance McMillan of Thurlow & Associates is also part of the families’ legal team.

The families filed suit against June Williams Colman, M.D., P.A., and Serenity Healthcare for Women, the health care providers that provided prenatal care and oversaw labor and delivery, and CHCA Bayshore, L.P. d/b/a Bayshore Medical Center and CHCA Bayshore, L.P. d/b/a East Houston Regional Medical Center, the hospital where the infants were delivered.

Newborn in distress

On July 19, 2012, Jessica Bonura was admitted to East Houston Regional Medical Center for induction of labor with Oxytocin. When mismanaged, Oxytocin infusion can lead to adverse perinatal outcomes related to fetal hypoxia.

Dr. Colman and the nurses at East Houston Regional Medical Center progressively increased the dosage of Oxytocin over the course of the day, despite clear indications that Ms. Bonura’s baby boy was in distress. Ms. Bonura was allowed to push for over two hours and a shoulder dystocia was encountered, which further compromised the infant’s condition. At birth, the newborn had no respiratory effort and required bag mask ventilation for approximately two-and-a-half minutes before some respiratory effort was noted. As a result, Ms. Bonura’s baby boy has suffered severe permanent brain damage.

On October 18, 2014, Stephanie Garcia was admitted to East Houston Regional Medical Center with contractions. Upon admission, Ms. Garcia’s vital signs and lab results indicated a risk for maternal and fetal infection in addition to perinatal asphyxia. Dr. Colman and the nurses at East Houston Regional Medical Center allowed Ms. Garcia to push for over one-and-a-half hours before the infant was delivered. At birth, the newborn was not breathing and finally gasped for air for the first time at 10 minutes of age. As a result, Ms. Garcia’s baby boy suffered severe brain damage and has been diagnosed with cerebral palsy. He has been tube fed since he was born and will require nursing care for the remainder of his life.

On November 4, 2015, Tatyana Phillips was admitted to East Houston Regional Medical Center for induction of labor with Oxytocin. Over the course of the day, Dr. Colman and the nurses at East Houston Regional Medical Center failed to correctly interpret the fetal heart rate tracings, which indicated that the infant was in distress. Ms. Phillips was allowed to push for over two hours before Dr. Colman applied a vacuum extractor in an attempt to deliver the baby.

After two failed attempts, Dr. Colman discontinued use of the vacuum due to the presence of abrasions on the infant’s head. Ms. Phillips was allowed to push for another hour, despite clear signs of fetal distress. Dr. Colman then reapplied the vacuum extractor and a severe shoulder dystocia was encountered. The infant was noted to have the umbilical cord wrapped around his neck two times. His condition progressively worsened until Ms. Phillips delivered her baby boy. Ms. Phillips’s son tragically passed away fifteen minutes after delivery.

In each of these cases, Dr. Colman and the nurses and staff members of East Houston Regional Medical Center failed to properly manage the labor and delivery of the three women and failed to intervene despite clear evidence of fetal distress. None of the women were offered a cesarean section.

To learn more about the lawsuit or to contact Mo Aziz, call 713-222-7211 or email him at maziz@abrahamwatkins.com.

 

 

$9 Million Med-Mal Verdict for Repeated Surgeries Leading to Amputations

butler_memorial_hospital
A jury awarded a Butler, Ohio, man and his wife nearly $9 million in damages, lost wages and future medical expenses on October 6 after a nightmare series of surgeries at Butler Memorial Hospital.

Todd and Beverly Wogan were awarded $8.78 million collectively after the couple filed suit in 2013, according to the Butler Eagle.

Todd Wogan had surgical procedures in 2012 that began with a procedure to repair an abnormal connection between his colon and urinary bladder. In the two months following the surgery, Wogan was in and out of the doctor’s office and BMH’s emergency room repeatedly.

Ultimately Wogan ended up at Allegheny General Hospital, where seven different surgeries were performed as doctors worked to repair damage to and infection of his abdominal cavity. Due to the stress of extended septic shock Wogan experienced, doctors at AGH had to amputate both of his feet as well as portions of fingers on his left hand.