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April 13, 2012

Jury awards woman $1.9 million for overprescription of pain medication

pill bottle.jpgA 9-member jury awarded a woman $1.9 million Thursday, after it found that a doctor overprescribed methadone for pain treatment, which caused the woman to stop breathing and suffer brain damage. Overprescription of medication can have devastating effects for patients, including those in Maryland.

Our Annapolis Maryland medical malpractice attorneys have years of experience representing Plaintiffs who have suffered injuries as result of the negligence of health care providers.

The woman, Charlene Whalen of Bangor, Maine, sued Dr. Steven Weisberger who treated her for chronic back pain. The Complaint alleged that the dosage of methadone Dr. Weisberger prescribed was too high, which caused brain damage from oxygen deprivation after she stopped breathing while sleeping.

The doctor was a practitioner of a therapy called Prolotherapy, which involves injections into the area around a patient's spine that intentionally causes inflammation designed to help promote healing. Dr. Weisberger prescribed methadone from the resulting pain.

About 48 hours after she was prescribed Methadone, Whalen's fiancé found her unresponsive in the middle of the night. She was eventually revived, but the resulting deprivation of oxygen resulted in brain damage that affected her ability to multitask and perform tasks that would allow her to work.

The Plaintiff's experts opined that the amount of methadone Plaintiff was prescribed was eight times the amount recommended by experts in the field. The Defense countered that the dosage was within an appropriate range.

The Defense contended that the Plaintiff never alerted the pharmacist who filled the methadone prescription that she had breathing problems and suffered sleep apnea. Additionally, the Defense argued that Plaintiff had no future lost income, since she never intended to return to work.

The jury deliberated for less than two hours.

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February 14, 2012

Maryland Court of Special Appeals holds Good Samaritan Statute does not apply to companies

medical helicopter.jpgThe Maryland Court of Special Appeals overturned a Talbot County Circuit Court Judge's ruling that a mother could not sue a commercial ambulance company for negligence, last Thursday, holding that the trial judge erred in his interpretation of the Maryland Good Samaritan Statute.

Our Annapolis Maryland medical malpractice attorneys have more than 30 years of experience representing the rights of Plaintiffs who have suffered damages due to the negligence of others.

In Murray v. Transcare Maryland, TransCare argued that as a commercial ambulance company it was entitled to immunity based on the Maryland Good Samaritan State and the Maryland Fire and Rescue Act. The Court of Special Appeals panel held that although Maryland State law protects municipal firefighter and rescue operators from liability, both the Maryland Fire and Rescue Act and the Maryland Good Samaritan Statute, do not protect commercial ambulance services, such as the services provided by TransCare, from liability. The Court's decision allows the Plaintiff to pursue a claim against TransCare.

The events at issue occurred on November 15, 2007, when an air transport company was required to transport a child from Memorial Hospital at Easton to University of Maryland Medical System's (UMMS) Pediatric Intensive Care Unit, because the Easton hospital was not equipped to manage an intubated child. TransCare employed a paramedic on board the transport helicopter who failed to find an oxygen mask after the airway of the child, Bryson Murray, became blocked by a breathing tube.

Unable to find an oxygen mask on board, the air transport required an emergency landing before a mask could be found, and by that time the child had suffered permanent brain damage.

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January 31, 2012

Maryland Court of Appeals upholds multi-million dollar medical malpractice judgment

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The Maryland Court of Appeals last Friday upheld a Baltimore County trial court's denial of a physician's motion for a new trial, after a jury awarded $13 million to a family whose child was born with severe cerebral palsy. The jury found that the physician breached his duty to obtain the mother's informed consent to treatment when he treated her for a partial placental abruption, by failing to inform her of the risks and available alternative treatments related to changes in her pregnancy.

Our Annapolis Maryland medical malpractice attorneys have more than 30 years experiments representing plaintiffs in cases involving catastrophic birth injuries.

The case Spangler v. McQuitty et al, marked the second time the Court of Appeals examined the same set of facts. In 2009, the Court of Appeals held in McQuitty I that a patient may bring an informed consent claim in the absence of a battery or affirmative violation of the patient's physicial integrity because a practitioner's duty to inform a patient of material information that the practitioner knows or ought to know would be significant to a reasonable person in the patient's position in deciding whether or not to submit to a particular medical treatment or procedure.

After overturning the trial court's initial grant of judgment notwithstanding the verdict, the Court of Appeals remanded the case to the Baltimore County Circuit Court to address Dr. Spangler's motion for remittur, which is a motion to reduce damages.

On remand, the trial court rejected Dr. Spangler's request for remittur and post-trial relief. Dr. Spangler appealed, and the Court of Appeals granted a writ of certiorari to hear the case.

Prior to the trial court's decision on Dr. Spangler's motion for remittur, the child unfortunately died.

In last week's decision, the Court of Appeals for the first time addressed the effect of a party's death on a jury verdict for future medical expenses. The jury awarded the child's parents $8,442,515 in future medical expenses, which Dr. Spangler argued the parents stopped incurring after their child died.

The Court ultimately held that while some states like Wisconsin have statutes to address such situations, Maryland does not. Although Maryland does have a statute permitting future economic damages to be annuitized, the trial court exercised its discretion not to grant an annuity award, which was not challenged on appeal.

In the absence of such statute addressing cessation of future medical damages, the Court joined several others states in deciding that "finality is the valued norm." In other words, the Court granted deference to the jury's verdict, which was likely based on a projections based on Plaintiff's life expectancy.

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December 8, 2011

Hospital found liable for botched surgery performed by medical resident

A Michigan jury awarded a woman $2.5 million after she suffered a permanent injury as a result of a resident surgeon's error during a medical procedure.

Our Maryland medical malpractice attorneys have over 30 years' experience representing victims who have suffered as a result of medical providers' negligence.

Surgery was necessary for the woman after she had suffered a miscarriage in which she lost her 14-week-old fetus. As a result, she underwent a dilation and curettage procedure. She alleged in her lawsuit that her OB/GYN informed her that the procedure was routine and that she would be home by lunch.

During the surgery, which was performed by a resident surgeon, the woman's rectum and bowel were torn after her bowel snapped back after the resident grabbed a piece of bowel with ring forceps. Her lawsuit alleged that her doctor never made her aware that the resident performed the surgery.

After the surgery, the woman underwent an ileostomy, which is a procedure to create an opening in the skin to pass intestinal waste. She was also required to carry a bag which collects the waste for a period of three months.

As a result of the injury, she has suffered altered bowel patterns, pain and scarring.

At trial, she and her attorney argued that her OB/GYN failed to properly supervise the resident physician who performed the surgery.

Ultimately, the jury found the hospital that employed the surgeon and the resident liable for $2.5 million.

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November 2, 2011

Anesthesiologist pays $8.2 million for recommending former drug-abusing colleague

A Louisiana anesthesiologist who wrote a glowing recommendation on behalf of a fellow anesthesiologist to a hospital in Washington State, despite knowledge of the doctor's habit of diverting Demerol from his patients, was ordered to pay $8.2 million to pay for the damages that resulted when the doctor and hospital was sued for medical malpractice.

Our Baltimore Annapolis Maryland medical malpractice attorneys have more than 30 years representing Plaintiffs who have been injured by medical errors.

According to a Report in Outpatient Surgery Magazine, Louisiana Anesthesia Associates (LAA) terminated Robert Lee Berry, MD, in 2001 over concerns that he had a problem with substance abuse. William J Preau III, MD was also a member of LAA and participated in the decision to terminate Berry. Even after this, however, Dr. Preau wrote a glowing recommendation to Kadlec Medical Center in Richland, Washington stating: "[Dr. Berry] is an excellent anesthesiologist. He is capable in all fields of anesthesia including OB, peds, C.V. and all regional blocks. I recommend him highly."

Kadlec Medical Center hired Berry. One year later, Berry was under the influence, failed to properly administer anesthesia to a patient, and the patient fell into a permanent vegetative state. The patient's family sued Dr. Berry and Kadlec medical center. The case was settled with Dr. Berry paying $1 million and the hospital paying $7.5 million.

Feeling misled by Dr. Preau's letter, the hospital sought indemnity - repayment of their settlement and legal fees - by suing Dr. Preau and Louisiana Anesthesia Associates (LAA) for intentional misrepresentation, resulting in a new round of litigation in the United States District Court for the Eastern District of Louisiana.

The federal jury awarded $8.2 million to Kadlec for damages that resulted from its settlement with the patient and the medical damages, which was apportioned based on the comparative fault of Dr. Preau and Louisiana Anesthesia Associates. On appeal, however, the United States Court of Appeals for the Fifth Circuit reversed the judgment against LAA, because LAA provided only a neutral recommendation (i.e. a response only indicating that the former employee had been on its medical staff and does not vouch for his credentials). Moreover, the person who prepared LAA's letter indicated that she did not know anything about Dr. Berry's termination and other problems, which were kept confidential. See full text of the Appellate Court's Decision.

The end result was that Dr. Preau was left to fulfill the entire $8.2 million judgment to Kadlec. He filed several lawsuits to have his medical malpractice carrier indemnify him, all of which failed. According to the Outpatient Surgery Article, Preau ended up satisfying the judgment in full.

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October 26, 2011

Parents sue hospital, pediatrician for faulty genetic counseling

gavel2.jpgA Portland, Oregon couple, filed a lawsuit seeking $23 million in damages over the practitioners' late diagnosis of their second son's Duchenne muscular dystrophy. As a result of the late diagnosis, the parents allege they were denied the opportunity to exercise "reproductive choices," prior to their third son being born with the same condition.

Our Annapolis and Baltimore Medical Malpractice Attorneys have years of experience representing Plaintiffs whose children have been affected by catastrophic birth injuries. These injuries have a lasting emotional and financial impact on parents, as they must often pay for a lifetime of medical care and see their children subjected to pain and suffering.

The Oregon lawsuit alleges that due to the negligence of the defendants, the parents will watch both boys lose the ability to walk by their early teens and will ultimately die from the progressive condition.

The first son was born in 2003. The lawsuit alleges that the first son immediately showed developmental abnormalities after birth. Although the parents sought medical help, the son was not diagnosed with the condition until October 2010, which was two years after their third son was born. Their third son is also affected by the disease.

The suit alleges that the defendants failed to recognize the second son's abnormalities and failed to diagnose him, and moreover failed to advise them of the likelihood of a subsequent child having the same condition.

Duchenne's muscular dystrophy is a condition that affects one in 3,000 boys, which includes delays in walking, trouble going up stairs, frequent falls and large calf muscles. There is no known cure.

Cases like this are often difficult and sensitive, because such cases could send a negative message to children when they learn that their parents may wish that they were not born. Additionally, these cases might suggest that a child that is handicapped is less desirable than a non-handicapped child. These critiques overlook the emotional and painful impact these issues have on families.

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October 15, 2011

Jury awards $1.4 million for traumatic birth injury

A Jefferson County, Kentucky Jury awarded $1.4 million in damages to a woman, whose premature baby was decapitated during delivery at a local hospital in 2006.

Our Baltimore Annapolis Maryland Medical Malpractice Attorneys have years of experience representing Plaintiffs who have been affected by traumatic birth injuries.

The jury found the two doctors who conducted the procedure, Dr. Joseph Bilotta and Dr. William Koontz, liable for the full extent of the awarded damages. Meanwhile, the hospital and nurses involved in the case were held not liable.

All parties to the suit acknowledged that it was an extremely rare occurrence that the fetus was decapitated during birth. The doctors' attorney argued to the jury that the baby would not have survived regardless of the doctors and nurses actions, because the pregnancy was only about 21 weeks in duration.

The Plaintiff's attorney, however, argued that the mother was about 24 weeks into the pregnancy, where babies are potentially viable.

The Plaintiffs argued that the doctors failed to remove a cerclage, a device resembling a string, which is a surgical tool used to keep the Plaintiff's cervix closed. When the fetus was being delivered, the string acted "as a noose" which caused the decapitation.

The doctor acknowledged that he initially tried to deliver the baby with the cerclage intact, but eventually removed it. But the allegation was that it was removed too late in the procedure.

The $1.4 million the jury awarded was to compensate the mother, Micheatria Donelson, for her pain and suffering. Her attorneys argued that she is now depressed, has panic attacks and is unable to sleep more than a few hours each night.

On a slightly less somber note, she is now the mother of a two-year-old daughter.

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August 11, 2011

Jury awards family $91.5 million for nursing home neglect

A Kanawha County, West Virginia jury awarded an 87-year old woman's family $91.5 million after finding that low staffing levels at a nursing home led to her death.

Our Maryland nursing home neglect attorneys have substantial experience in representing Plaintiff's who have suffered catastrophic injuries as a result of nursing home negligence.

The substantial verdict was delivered after a two-week trial where Plaintiffs alleged that workers at Heartland of Charleston (W.V.) failed to feed and care for Dorothy Davis, who died of complications from dehydration after a three week stay at the facility.

The jury deliberated for two hours before awarding $11.5 million in compensatory damages and $80 million in punitive damages.

The testimony reflected that in the three week period Davis stayed at Heartland, she lost 15 pounds, she became unresponsive and suffered severe dehydration. She died one day after her transfer to a different hospital.

Plaintiffs alleged that Heartland lacked sufficient nurses on staff to care for the woman, which was supported by the testimony of former Heartland employees. In 2009, the nursing home had an employee turnover rate of 112 percent.

Heartland is owned by a parent corporation called Manorcare that has assets of $8 billion.

The nursing home defended on the grounds that the woman's death certificate states that she died of Alzheimer's, not dehydration and that staff did not breach the standard of care in the treatment of the woman.

Carlyle Group, a private equity firm that owns Manorcare, stated that it will appeal the verdict.

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July 8, 2011

Tennessee legislature caps awards in civil cases

Tennessee became the latest state to enact a cap on non-economic damages when its Governor signed into law a so-called "tort reform" bill that limits damages such as pain and suffering.

Our Maryland attorneys have significant experience representing injured plaintiffs in personal injury cases including auto accidents and medical malpractice throughout the state of Maryland and the District of Columbia.

Tennessee's law places a $750,000 cap on non-economic damages and limits punitive damages at twice the amount of compensatory damages or $500,000, whichever is greater. The bill lifts the cap if the defendant is found to have intended to cause bodily injury.

Maryland, by contrast, currently caps non-economic damages at $740,000, with no cap on punitive damages. In Maryland, however, proving punitive damages requires proof of "actual malice." For this reason, awards of punitive damages in Maryland are rare.

Compensatory damages, including non-economic damages, are designed to make a Plaintiff whole. Punitive damages are designed to punish the wrongdoer.

A recent HBO documentary titled, "Hot Coffee" explored the human effects of caps on damages. Four states, including Nebraska and Virginia, however, have a cap on all damages - including economic damages.

In the HBO documentary, a Nebraska boy was injured at birth. As a result of the negligence of an obstetrician, he is severely brain damaged and will require a lifetime of care. A lifetime of medical care alone will cost in excess of $5 million. The jury awarded $5.5 million. But because Nebraska maintained a $1.75 million cap on all damages, his family received only $1.75 million (much of which went to expenses and attorney fees). That means that taxpayers get stuck with the bill, rather than the wrongdoer.

Although some state courts have ruled that caps on noneconomic damages are unconstitutional, the Maryland Court of Appeals ruled as recently as 2010 that Maryland's cap is constitutional.

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April 27, 2011

Surgeon operates on wrong eye of four-year-old boy

When four-year-old Jesse Matlock went in for surgery earlier this month in Portland, Oregon, his parents expected the doctor to help correct strabismus in his right eye, which in medical terms is a wandering eye. The surgeon, however, allegedly operated on the wrong eye, realized her mistake and then repeated the procedure on the correct eye - without telling the patient's parents until the procedures were complete.

Our Maryland Injury Attorneys have significant experience represent Plaintiffs who have been injured by medical errors.

The boy's parents were particularly upset that the doctor performed the second operation without informing the parents of her mistake until both procedures were complete. They learned of the issue when a nurse informed them that the doctor was operating on both eyes, without explaining why, the boy's parents said.

The parents allege that the doctor eventually spoke with them and informed them that she lost her sense of direction because the mark she had made on the correct eye was covered up.

While the extent of Matlock's injuries are unclear at this point, his parents have concerns that the unnecessary surgery may affect his sight in the future.

His parents indicate that they may consult an attorney - and they should.


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April 19, 2011

Proposed Medical Malpractice Reform Bill Would Increase Plaintiff's Burden of Proof

North Carolina Lawmakers have proposed Senate Bill 33, which would bar emergency room patients from recovering damages based on the negligence of medical providers, regardless of the severity or permanency of the injury.

Our Maryland medical malpractice attorneys have significant experience representing
Plaintiffs who have been injured by a medical provider's negligence.

Citing the need for tort reform, proponents claim that the bill will shield from liability any medical provider that provides "emergency medical services." Plaintiff's will need to prove "gross" negligence or wanton and willful conduct on the part of the medical provider. The topic of tort reform is a perennial subject in the Maryland State legislature.

Among the issues raised is the cap on noneconomic damages, such as pain and suffering. Presently, Maryland's cap on noneconomic damages is $740,000. The proposed North Carolina bill will decrease North Carolina's cap to $500,000 and increase the Plaintiff's burden of proof. Many states have no cap on non-economic damages.

The problem with the North Carolina bill is that the one-size-fits-all approach unfairly penalizes patients who have been wronged. The more reasoned and fair approach is to allow a jury to decide liability and damages.

Moreover, increasing the Plaintiff's burden of proof would do little to promote public safety and would certainly act as a deterrent for Plaintiffs.

The language in question states: "The defendant health care provider shall not be liable for the payment of damages unless the ... health care provider's deviation from the stand of care ... constituted gross negligence, wanton conduct, or intentional wrongdoing."

The bill has passed several readings in the North Carolina legislature, but is still in the drafting process.


October 19, 2010

Medical Errors Are Not a Rare Occurrence

Severe medical errors such as amputating the wrong limb or removing the wrong organs are the subject of horror stories, but sadly are not as uncommon as once thought, according to a recent study described in an article titled "Surgery Mix-ups Surprisingly Common".

Although this new study surveyed patient records in Colorado, our Annapolis Maryland medical malpractice attorneys frequently represent clients who have suffered injuries due to medical errors.

In Colorado alone, researchers found that the wrong patient was operated on at least 25 times and the wrong body part was operated on at least 107 times.

The study, an analysis of 27,370 records of errors spanning 6 ½ years maintained by a Colorado medical malpractice insurance company, found that human error is often the source of these medical errors. The company relied on physicians to self-report the errors.

One-third of the mistakes led to long-term negative consequences for patients.

The kicker: Only about 22 percent of the mistakes led to malpractice claims or lawsuits.

The Brassel, Alexander & Rice has personal injury attorneys who represent clients who have been injured by medical errors.

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