Infographic: The History of Medical Malpractice

The history of medical malpractice is a lengthy one, spanning from ancient times with the Hippocratic Oath to the numerous reforms in the 20th Century and continuing to today. Medical errors are the third leading cause of death in the US, according to researchers at Johns Hopkins.

The timeline below was created by the folks at Weiss & Paarz to give readers on The National Trial Lawyers an overview of the subject.

“We wanted to give an overall history of medical malpractice and how it relates to the law. That history is a lengthy one, spanning back to Hammurabi and some of the first written law codes. Since then, with so many changes in recent history, we thought it was important to give a historical background. While there are many more events that helped shape modern medical malpractice, these are some of the most influential,” says Naomi Anderson, a member of the marketing team at Weiss & Paarz.

“Medical malpractice is a serious topic that deserves to be treated as such. Nevertheless, we wanted to provide a more accessible way for people of all ages to learn about the history behind it. That is why we chose to go with eye-catching illustrations that entice the viewer to keep reading and keep learning,” Naomi Anderson, a member of the marketing team at Weiss & Paarz.”

Infant Recovers $33.8 million in Traumatic Brain Injury Case

Plaintiff attorney Vidian Mallard of Mallard & Sharp

Plaintiff attorney Vidian Mallard of Mallard & Sharp

Medical malpractice attorneys of Mallard & Sharp, P.A. recently celebrated a bittersweet victory, recovering a $33.8 million verdict for a brain damaged baby.

The court held that the catastrophic brain injury was caused by Dr. Ata Atogho’s failure to order an emergency C-section and the continued administration of the contraindicated delivery drug Pitocin. The court also found that Dr. Atogho’s failure to offer and perform a C-section was gross negligence and caused the brain injury that resulted in baby Earl Reese-Thornton requiring 24-hour care for the rest of his life.

Dr. Atogho was employed by the federally funded Jessie Trice Community Health Center, placing the case under the Federal Tort Claims Act.

“The Court cannot imagine a more devastating turn of events for parents expecting the birth of their first child… At the anticipated, joyful moment of birth of a crying, bouncing baby, they are instead presented with the dreadful specter of a blue, floppy, lifeless child.”

During the 90 minutes that baby Earl was in an emergent condition, Dr. Atogho delivered another baby and took an 8-minute call from his stock broker. Dr. Atogho created a false entry in the medical chart stating that the mother declined a C-section, but evidence from other witnesses proved that Dr. Atogho never offered the C-section and that a C-section was requested.

“This is a tragic case,” said attorney Vidian Mallard of Mallard & Sharp. “While it is impossible to change what has occurred to this family, it is satisfying that baby Earl’s medical and financial needs will be met for the rest of his life. The Court’s verdict clearly states that Dr. Atogho’s negligence caused baby Earl’s injury, but the U.S. Government has not accepted responsibility and has threatened an appeal. Meanwhile, baby Earl continues to suffer without getting all the care he so desperately needs.”

In his order, U.S. District Judge Robert Scola wrote: “the Court cannot imagine a more devastating turn of events for parents expecting the birth of their first child… At the anticipated, joyful moment of birth of a crying, bouncing baby, they are instead presented with the dreadful specter of a blue, floppy, lifeless child.”

The Florida personal injury law firm of Mallard & Sharp, P.A. is AV Rated and dedicated to providing the best possible results for all its clients. The judge’s order is available for download here or at

Colorado Woman, Paralyzed by Medical Malpractice, Recovers $14.9 Million

Bruce Braley of Leventhal & Puga PC in Denver, CO.

Bruce Braley of Leventhal & Puga PC in Denver, CO.

A Colorado jury awarded a 57-year old woman and her husband $14.9 million in a case whereas she was paralyzed by an epidural steroid injection that was clearly labeled as not for that use.

The jury found The Surgery Center in Lone Tree, CO, liable.

The plaintiff, Robbin Smith of Castle Rock, CO, was 57 when she received the injection of Kenalog in 2013. She was immediately paralyzed from the waist down.

Two years before she got the injection, Bristol-Myers Squibb got FDA approval to change its label for Kenalog to state: “Not for Epidural Use.”

“This verdict won’t restore Robbin’s ability to walk,” attorney Bruce Braley of Leventhal & Puga told the Denver Business Journal. “But it will give Robbin and Ed the chance to make the most of the life they now have.”

Smith’s attorneys showed the jury examples of bottles, packages, and labels with the printed warning. The warning label included language describing the adverse reaction that paralyzed Smith: “Spinal cord infarction, paraplegia, quadriplegia, cortical blindness and stroke (including brainstem), have been reported after epidural administration of corticosteroids.”

Doctors never informed Smith of these label warnings.

Study: Fewer Medical Malpractice Claims, But Increase in Awards

Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

Using data from the National Practitioner Data Bank (NPDB), a centralized database of paid malpractice claims that was created by Congress in 1986, physicians at Brigham and Women’s Hospital analyzed the trends in paid medical malpractice claims for physicians in the United States from 1992 to 2014.

“We’ve found that there was an overall drop in the amount of paid claims across all specialties, but that the magnitude of the decline was markedly different by specialty,” said Adam Schaffer, MD, a hospitalist at BWH and lead author of the paper.

This is the first analysis to evaluate paid claims by physician specialty at the national level. The findings are published in the March 27, 2017, issue of JAMA Internal Medicine.

Researchers report that the overall rate of claims paid on behalf of all physicians dropped by 55.7 percent. Pediatricians had the largest decline, at 75.8 percent, and cardiologists had the smallest, at 13.5 percent. After adjusting for inflation, researchers found that the amount of the payment increased by 23.3 percent and was also dependent on specialty. Neurosurgery had the highest mean payment, and dermatology had the lowest. The percentage of payments exceeding $1 million also increased during the same time period.

“Previous research has shown that physicians’ perceptions of their risk of liability can influence their clinical decision-making, and a better understanding of the causes of variation among specialties in paid malpractice claims may both improve patient safety and reduce liability risk,” said Allen Kachalia, MD, chief quality officer at BWH and senior author of the study.

Error in diagnosis

Additionally, the authors report that the most common type of allegation was an error in diagnosis (31.8 percent of all paid claims), followed by errors related to surgery (26.9 percent) and errors related to medication or treatment (24.5 percent). Thirty-two percent of paid claims were related to a patient death, with pulmonologists most likely to be involved in a claim that involved a patient death. Plastic surgery and dermatology had the highest percentage of claims that were considered low-severity, with minor physical or emotional injury.

“Specialty-specific information about paid claims may help inform decisions about the approaches needed to simultaneously improve patient safety and reduce liability,” write the authors.

They note that their analysis is limited by the information available in the data sets that were used, the NPDB and the American Medical Association Masterfile. The AMA Masterfile provided the number of physicians by specialty, but does not account for clinical volume. The NPDB includes information about claims settled on behalf of individual physicians, but does not include data about claims for which no payment was made and for those settled on behalf of institutions.

Paper cited: Schaffer et. al. “Rates and Characteristics of Paid Malpractice Claims Among US Physicians by Specialty, 1992-2014.” JAMA Internal Medicine. March 27, 2017. doi:10.1001/jamainternmed.2017.0311

$625,000 Jury Verdict for Unnecessary Surgery in Medical Malpractice Case

Plaintiff Anthony J. Baratta of Baratta, Russell & Baratta in Huntingdon Valley, PA.

Plaintiff Anthony J. Baratta of Baratta, Russell & Baratta in Huntingdon Valley, PA.

A federal court jury in Pennsylvania awarded $625,000 in damages to a woman who had unnecessary surgery to remove a non-existent mass, leaving her scarred and unable to have a child.

Following a four-day medical malpractice trial the jury returned a verdict in favor of Natisha Almeida. Natisha Almeida and Bruce Robinson (husband & wife) V. Tuan a Le, MD, Doylestown Women’s Health Center, Paul Jeffrey Adelizzi, M.D., Mark s. Silidker, M.D., Doylestown Hospital.

The jury found Dr. Le was 100% responsible for performing an unnecessary surgery on Natisha Almeida to remove a mass the size of a potato but found nothing. The jury exonerated the wo defendant radiologists.


Dr. Le, the surgeon, admitted to the plaintiff after the surgery, that he performed a pelvic laparotomy on May 10, 2013 “for nothing.”  

Dr. Le had intended to remove what he called a “mobile mass,” which he believed existed because of the physical exam of his patient by her family physician, the reading of a transvaginal ultrasound by defendant Dr. Paul Adelizzi in which he identified a 3×6 cm solid mass and the reading of a CT by Defendant Mark Silidker, M.D. in which a 3×6 cm mass was confirmed, and that Ms. Almeida felt pelvic pressure.  

“In making this decision, he ignored his own finding of a normal pelvic and rectal exam on April 11, 2014, the normal rectal exam by a GI specialist on April 25, 2013, a normal colonoscopy on May 6, 2013, and he never performed another rectal exam before surgery,” said plaintiff attorney Anthony J. Baratta of Baratta, Russell & Baratta, Huntingdon Valley, PA. He tried the case with attorney Andrew DiPiero, also with his firm.

Dr. Le also ignored a recommendation by Dr. Adelizzi (the ultrasound radiologist) that he get a CT with rectal contrast (he ordered oral contrast instead), the recommendation by Dr. Silidker (CT scan radiologist) that he get an MRI, and the fact that the mass identified by both radiologists was described as being in two different places and that both places described by the radiologists were outside the areas within the purview of a gynecologist.

Plaintiff’s gynecology expert, Richard Luciani, says that given the “uncertain” situation facing Dr. Le, which pointed to either a benign fibroid or a mass of non-gynecologic origin, referral to a general surgeon was “mandated” and that exploratory laparotomy, and its intendant risks, was not indicated.  

Never sent patient for evaluation

Dr. Le said he “discussed” the surgery with a general surgeon named Murray the day before the surgery to confirm a plan that if the mass were a fibroid, he would remove it through a mini-laparotomy, but if “mesenteric,” Murray would remove it.  

He never sent the patient to Dr. Murray for evaluation. He never sent records or films to Dr. Murray.  Dr. Murray denied that any discussion pre-surgery occurred, and if he had been so consulted he would have examined the patient and reviewed studies. Instead, Dr. Murray’s first contact with the Almeida case was when he was summoned into theoperating room by Dr. Le, with the patient under anesthesia and with her abdomen already opened, because Le could not find anything.   

Both radiologists contended that their readings were accurate.  Plaintiff’s expert radiologist, Larry Caputo, M.D., says both radiologists mis-read the studies by interpreting the anterior wall of air filled bowel as a mass.   

The radiology expert for the radiologists, Dr. Chad Brecher, did not testify that the films were read accurately.  Instead, he said since both radiologists expressed uncertainty and requested further studies and did not make the decision to perform surgery, they met the standard of care.  

Dr. Daniel Small testified as Dr. Le’s expert that he was justified in performing surgery based upon the family physician’s physical exam and the reports of the two defendant radiologists.


The CT scan was done May 8.  Dr. Le called Natisha that day to say she had a tumor the size of a small potato that needed immediate removal.  She, her husband, mother, father and brother met with Dr. Le on May 9th and surgery was performed May 10.  

The scarring outside her body was permanent. What was not known immediately was that the surgery caused scarring inside her body too. That would only be learned once she began receiving treatment to help her conceive.

In February 2016, Dr. Jeffrey Bowers performed an exploratory laparoscopy to evaluate the integrity of her left fallopian tube. He found significant pelvic adhesive disease with occlusion of the left fallopian tube. He lysed adhesions and removed the fallopian tube. This surgery and loss of female anatomy was a direct result of Dr. Le’s unnecessary surgery says Plaintiff’s gynecology expert, Richard Luciani.  

In this regard, it is helpful to know that Dr. Le, in the 2013 surgery, specifically noted in his operative report that he examined the uterus, ovaries and fallopian tubes and found all to be normal as well as no sign of adhesions or endometriosis.

The defense expert for Dr. Le blamed the development of the adhesions to the plaintiff’s single Chlamydia diagnosis made when she was 20 years old in 2006. However, she rebutted this testimony with evidence that the Chlamydia which was successfully treated with Doxycyclene, and that each chlamydia test thereafter (2010, 2011, 2013) was negative and that Dr. Le himself observed no adhesions and normal tubes in 2013.  

Jury Verdict

The case was tried over 5 days before a Jury of eight persons and Judge Robert Kelly of the US District Court Federal Court for the Eastern District of Pennsylvania.  Our client had suffered $4,277 wage loss and $11,000 in recoverable medical bills so most of the verdict was for non-economic harms such as pain, loss of life’s pleasures and disfigurement.  The jury awarded $625,000.

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.


  • 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.