Birth Injury Verdict Further Screws Child*

MLive, an online Michigan news site, reported a recent jury verdict in a birth trauma case.  The Michigan jury awarded $13 million to the parents of baby girl who was left with limited use of her right arm following birth trauma.

The injury is commonly called a brachial plexus injury, referring to a stretching or tearing of the network of nerves running from the spine in the lower neck to the armpit and arm.  These nerves innervate the upper arm, forearm, and hand.  Permanent damage to these nerves can result in partial or complete loss of function.  It is usually caused by excessive traction during the birthing process.

In the Michigan case, the baby’s nerves were completely severed when resident doctors pulled down excessively on her head while her shoulder was caught on the mother’s pelvic bone.  The pulling down of the baby’s head stretches the nerves.  Continued traction without release of the shoulder will tear the nerves.  The family alleged that the doctors should have done a cesarean section or delivered using a method that would have caused less strain on the baby.  The hospital employed a typical defense to these cases…it was not us but the natural birthing process that caused the injury.  The jury did not buy into this defense, likely because the injury could have been prevented with reasonably prudent care.

The worse thing about this verdict is that it will be reduced (to about $4 million).  Michigan places a cap on non-economic damages at $433,400.  In other words, Michigan lawmakers believe that the inability to effectively use an arm–thereby limiting athletic pursuits, restricting recreational options throughout the baby’s lifetime, and likely creating social anxiety and embarrassment–is worth less than half-a-million dollars.

The child  has undergone multiple surgeries and continues to wear a brace on her right arm, which is malformed.  This is a permanent injury that will never go away.  She will require a lifetime of assistance in completing basic daily tasks, such as brushing her hair or getting dressed.  This injury will limit virtually every aspect of her life.  And if she lives a normal life expectancy, Michigan says the injury is only worth around $5,300 a year, or $14.50 a day.

Really?  Would give up your arm for $14.50 a day?

I doubt any Michigan lawmakers would.

 

 

* This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.

Preventable Medical Errors Kill Americans at an Alarming Rate*

There is an epidemic that is killing almost half-a-million Americas and injuring millions of others every year.  This epidemic is as bad as the top two killers of Americans, cancer and heart disease (each claiming over 550,000 lives each year), and is far worse than accidents (claiming over 120,000 lives each year).  What makes this epidemic more tragic than the most common causes of death in the U.S. is that these deaths are 100% preventable.

Preventable medical errors kill and injure Americans at an alarming rate.  A new study printed in the Journal of Patient Safety, as reported by Scientific American, reports that “the true number of premature deaths associated with preventable harm to patients was estimated at more than 400,000 per year.  Serious harm seems to be 10- to 20-fold more common than lethal harm.”  This is a problem of epidemic proportions that must be fixed.

When was the last time you heard politicians or lobbyists address how to prevent medical errors?  Probably never.  Rather than publicly address ways to make health care safer, they pollute the airwaves with stories about “defensive medicine” and increased costs associated with “frivolous lawsuits.”  They suggest that doctors are afraid of lawsuits so they order more tests; however, the practical difference is looking for the problem versus taking a wait-and-see approach.  Do you want your cancer diagnosed now or later?

Americans are led to believe that medical negligence suits are an epidemic. However, according to the National Association of Insurance Commissioners, the total amount of money spent defending claims and compensating victims of medical negligence in 2010 was $5.8 billion, or just 0.3 percent of the $2.6 trillion spent on health care in the U.S. that same year.  Moreover, if hospitals were practicing defensive medicine, then why do over 400,000 Americans die from preventable medical errors in hospitals every year?

Every 1 minute and 15 seconds someone’s mother, father, spouse, sibling, grandparent, or child needlessly dies in the hospital because of a medical error.  In that same amount of time, 10 to 20 other hospital patients are being injured.  Frighteningly, these statistics do not include victims where the medical negligence occurs outside the hospital.

The epidemic of patient harm in hospitals must be taken more seriously if it is to be curtailed.  This is a pervasive problem that should demand decisive action on the part of providers, legislators, and people who will one day become patients.  Yet, the action and progress on patient safety is frustratingly slow.

The following case demonstrates how an innocent young woman, injured by improper care, was victimized by a hospital system that failed her.

A 26-year-old woman entered a Phoenix-Area Hospital for removal of an ovarian cyst.  The surgery was completed without complication; however, after entering the post-anesthesia care unit (PACU), she had an adverse effect from the anesthesia that caused her to breathe less efficiently.  The anesthesiologist provided Narcan, a medication that blocks the effects of anesthesia and narcotic medications.  Her respiratory drive and vital signs returned to acceptable levels.

While still under the influence of Narcan, the PACU nurse continued to administer narcotic medications—based on the orders the anesthesiologist wrote before the patient ever experienced breathing problems.  The orders were never changed and the nurse never questioned whether it was appropriate to continue giving the patient medications that could cause breathing problems.  Neither provider had significant experience with using Narcan in this setting.

The problem for the patient is that as the Narcan wears off the narcotic medications are able to overwhelm the body, causing deeper sedation and stopping the patient from breathing.  In a groggy state, only 90 minutes after entering the PACU, the PACU nurse sent the patient home with her husband.  The PACU nurse never told the husband about the event that necessitated Narcan, and never warned the husband about the potential adverse effects of the narcotic medications she administered.

The patient’s husband brought her home and settled her into bed to rest, not knowing that she would never wake up.  Her death could have been prevented if any one of the health care providers took steps to monitor her condition for longer than 90 minutes.  They assumed she would be fine.

Sadly, no one has stepped up and admitted to their mistakes.  Instead, the health care providers argue that the husband is to blame because he should never have left her side once they arrived at home.

* This blog should be used for informational purposes only.  It does not create an attorney-client relationship with any reader and should not be construed as legal advice.

Arizona Injury Victims Keep Getting Screwed

This is the first of a series of posts noting how Arizona injury victims keep getting screwed. The main culprit is the Arizona legislature, doing the dirty work of insurance companies and the health care lobby.

If someone in Arizona is the victim of an automobile crash, they will later be victimized by the health care providers that treated them. It does not matter if you have health insurance. If the insurance pays the provider the agreed upon rate for services, the provider can come after your injury award for the difference between what they billed the insurer and what the insurer paid. However, the providers don’t have to bill your insurer and can, instead, bill their entire amount against your award.

This creates further issues when you consider that certain types of insurers are also entitled to be repaid for amounts they pay out for injury-related care. It does not take an economist to realize that the injured victim will have to compensate the health care providers for every penny billed. On its face this seems reasonable; however, most Arizona drivers who cause crashes carry minimum insurance ($15,000). So, an injury victim who goes to the hospital for evaluation will have to pay the hospital providers approximately $6,000 from the $15,000, after already paying the hospital hundreds of dollars to obtain medical records to support the claim. After paying attorneys fees and costs, the victim is left with barely enough money to buy an Apple Macbook Pro.

Understaffed Medical Facilities Amplify Medical Errors

If you have ever survived a huge RIF (reduction in force) at your company you know what comes next.  The surviving employees must pick up the slack and do extra work.  Your company is now understaffed.  Without enough employees to do a job, the job cannot be done properly.  This can lead to attitudes like, “this will have to do,” “this was not in my job description,” and “I can’t continue to do everything.”  Short cuts must be taken.  Work quality suffers.  Things get missed.  You are left hoping you do not make a mistake that cannot be corrected.

The health care profession is not immune to understaffing.  Understaffing occurs at hospitals and nursing homes for many reasons.  Owners often intentionally understaff their facilities, short-term and long-term, to boost profits.  Patients do not receive appropriate care.  In the hospital setting it could be health care providers missing signs and symptoms of a serious condition; in nursing homes, it could result in abuse or neglect.  Understaffing is associated with high urinary catheter use, poor skin care, poor feeding, malnutrition, dehydration, and starvation.  Overworked staff tend to rush around, sometimes intentionally skipping certain care needs.  Patients’ conditions are more likely to decline.

In an understaffed facility, expect the unexpected.  Medical errors already plague U.S. hospitals.  These medical errors are magnified and compounded when there are not enough employees to ensure proper patient care.  For instance, a nurse responsible for the postoperative care of a patient might miss subtle signs and symptoms of a respiratory compromise.  Rushing around and trying to accomplish too many things in a short period of time could lead the nurse to assume that her healthy patient will be okay, just like the many other patients before her, without focusing on the patient’s specific situation.  Prematurely discharging the patient under the assumption that things will be fine, without paying attention to the amount of narcotic medication administered, could result in the patient suffering a fatal respiratory failure after getting home.

Sadly, there is no easy way to find out if your hospital or nursing home is understaffed; however, certain tell-tale signs could suggest you need to be concerned.  For instance:

Is the nurse constantly rushing around and not taking the time to thoroughly answer your questions?
Does the nurse appear stressed or anxious?
Does the nurse appear to be cutting corners or not being thorough in her duties?
Is the patient’s condition deteriorating?

If you think understaffing caused injury to you or a loved one, you should call an experienced medical negligence attorney like the ones at Harris Powers & Cunningham (602.271.9344).

Where is the Justice???

Our founding fathers explicitly declared that trial by jury is essential to secure the liberty of man and enforce the principles of the Constitution.  Yet, efforts are underway to take this weapon away from you.

We have all heard the bad lawyer jokes, mistakenly epitomized by Shakespeare’s famous quote, “First thing we do, let’s kill all the lawyers.”  The ironic thing is that this statement was made because lawyers stood in the way of the scheme, hatched by Dick the Butcher, to enable Jack Cade to overthrow the king.  The champions of justice, protectors of the Constitution–lawyers–were a major impediment to rebellion.

Our jury system was designed to provide justice, deliver order, and insure safety by holding people accountable for their transgressions.  Many safety systems and procedures have been implemented in this country because of the work of trial lawyers.  Rules were not meant to be broken.  Needless endangerment is not a byproduct of living.  Greed is not allowed to prevail over safety.

The problem is that we have a Dick the Butcher among us–largely represented by insurance companies.  The scheme is to overthrow the justice system under the guise of “tort reform.”  People have been convinced by these insurance companies, often masked as public interest groups like the U.S. Chamber of Commerce, that our justice system is dangerous to their way of life–to the point that they are willing to give up their right to hold people accountable for their transgressions.  One way this is accomplished is by demonizing the trial lawyers (i.e., kill all the lawyers).  Our justice system is losing its power to hold people, corporations, hospitals, and insurance companies accountable for the harm they cause.  The facts of a case often take second chair to the personal attack of the injured person and their lawyer.

Through decades of well-funded mudraking, Dick the Butcher has instilled fear in the hearts and minds of Americans.  Think about it.  Why would a person be willing to limit the amount of money an injured person can receive when another has caused significant brain injuries or loss of enjoyment of life from a lost limb?  Why do judges and juries view injured persons and their lawyers with detest, but tolerate defendants and their lawyers who perjure themselves?  Rather than focus on the bad conduct of the defendant, Dick the Butcher tells Americans that the  injured person’s lawyer gets rich at the expense of our economy and health care system.  There is no evidence to support this propaganda.

As tort reformers learned from The Bronx Tale, “it is better to be feared than loved because fear lasts longer.”  Fear is a powerful tool.  By causing fear, reason and rational thought become non-existent.  Without evidence, tort reformers tell Americans that access to health care and success of the economy are threatened by greedy trial lawyers; so, juries must punish injured persons to punish trial lawyers and save America.

As my prior post demonstrates, when juries focus on the defendant’s conduct and the harm caused, they are able to ignore tort reform propaganda and return a fair verdict.  That is all trial lawyers are after–fair verdicts.  The jury system was designed to foster fair verdicts–ones not influenced by bias, prejudices, and emotion.

The dilemma is that tort reform acts primarily outside the courtroom.  Caps and limitations on actions are not enacted by well-reasoned discussion of fact-based evidence.  If you want to protect your rights, because tort reform will eventually affect you or a loved one, you need to speak up.  Contact your legislative representatives, local and federal, and tell them that enough is enough.  The only way to protect Americans is to stop pandering to insurance companies.  To ensure safety, order, and justice, we must call out Dick the Butcher and mute his efforts.

Jury Returns $5.875 Million Verdict in Medical Negligence Case

PHOENIX, ARIZONA – Shawn Cunningham, Joseph D’Aguanno, and their hard-working team at Harris, Powers & Cunningham obtained a $5.875 million verdict in a medical malpractice wrongful death case. The Maricopa County jury determined that the untimely passing of a 32-year-old wife and stay-at-home mother of two young children would not have happened but for a series of serious omissions on the part of her health care providers. The jury deliberated for six hours following a two-and-a half week trial.

The general facts are:

On the morning of March 17, 2008, the patient was rushed by ambulance to a local Emergency Department (ED) with severe abdominal pain, bloody stool, and a history of Crohn’s disease. The ED physician evaluated her and ordered a stat CT scan around 8:50 a.m. Around 11:30 a.m., the ED physician learned that the only CT tech on shift fell ill and the stat CT could not be done until the next shift, scheduled for 5 p.m. The patient’s condition continued to worsen and, around 1 p.m., the ED physician decided to have a hospitalist admit the patient to the hospital. Life-threatening surgical issues should have been high on the differential, but neither the ED physician nor the hospitalist called the on call surgeon because they believed he would not see the patient without a CT scan.

Despite receiving pain medication, the patient was in agony. Her condition continued to decline. The CT was not completed until 6:25 p.m. and the results were not communicated to the hospitalist until 7:15 p.m. With the results in hand, the hospitalist contacted the on call surgeon for an urgent, stat, surgical consult. The surgeon ordered conservative therapy and advised he would see the patient in the morning. In response, because of the grave nature of the patient’s condition, the hospitalist pleaded with the surgeon to come in. The surgeon abruptly hung up. Even a call from the hospital’s CEO failed to get the surgeon in that night. The surgeon did not come in and perform surgery until the following morning, but it was too late. The patient was in septic shock and the beginning stages of multi-organ failure. She died on March 19, 2008.

The near unanimous jury verdict made it clear that the health care providers needlessly endangered their patient by failing to comply with simple safety principles — one of which requires physicians to timely diagnose and treat a potentially life-threatening surgical condition. The inability to perform a stat CT scan did not relieve the health care providers of their obligation to protect their patient. The untimely death of this woman — who was a wife, mother, and child — could have been avoided with a simple phone call to the surgeon when the stat CT scan became unavailable or by obtaining an alternative imaging study. The culture at this hospital prevented the health care providers from considering these simple, potentially life-saving alternatives. The omissions of the health care providers put all patients at risk and the jury’s verdict made it clear that such omissions are not acceptable.

The health care providers committed medical malpractice and the jury apportioned 40% of the fault to the on call surgeon, 30% to the hospital, 25% to the hospitalist, and 5% to the ED physician.

Learn more about Harris, Powers & Cunningham at www.hpc-lawyers.com

Microsoft vs. Motorola – Battle of 1980s Powerhouses

Many of us will remember the market share and stronghold that Microsoft and Motorola enjoyed in the 1980s.  Microsoft, still a PC powerhouse, has been slowly hemorrhaging over the past few decades.  While Apple woos the younger generation, and older technophiles, with aesthetics and lifestyle integration, Microsoft continues to cater to business clients but struggles beyond the PC.

In the latest techno-war, Microsoft filed a patent infringement suit against Motorola claiming the company’s Android-based smartphones violate nine Microsoft patents related to syncing email, calendar, and contact information, along with scheduling meetings and notifying applications about available battery power and signal strength. The suit seeks undefined monetary damages and a permanent injunction barring the sale of Motorola Android phones in the United States.  Microsoft claims that it is safeguarding “the billions of dollars” it invests each year in bringing innovative software products and services to market. Florian Mueller does a good job discussing the suit.

It does not take a genius to realize that Motorola is not the real target; however, another Android-phone manufacturer, HTC, recently signed a royalty agreement with Microsoft in exchange for access to Microsoft’s patent portfolio.  There are two directions that the recent suit could go – Motorola inks a royalty agreement with Microsoft or Google’s Android OS goes back to the drawing board.

Why is this significant?  The success of the iPad has launched tech companies into a frenzy to develop an iPad competitor, or killer.  The key to their success will be the OS.  Google is working on an OS to power these watered-down laptops.  Additionally, over the last six months, Android-based phones have become the most popular smartphones on the market.

All this on the eve of Microsoft launching its own Windows Phone 7 platform and working with tablet makers to adopt Windows for their new products.  Windows Phone 7 is likely Microsoft’s last chance to get into the non-business smartphone market, and last chance to exert a kung-fu grip on business clients. Microsoft’s prior mobile OS efforts were virtually complete failures, as seen by the success of the Blackberry – which is slowly going by the wayside as businesses provide iPhone functionality.  Let’s face it, it is tough to compete with modern GUIs and instant-on functionality.   I love Microsoft, but it could use a little rejuvenation and be mindful that sometimes less is more.

With Motorola caught in the crosshairs, this lawsuit has the potential of taking down the new kid on the block.  So now that Google has drawn the ire of Apple, Oracle, and Microsoft, what is a tech behemoth to do?  Only time will tell, but I suspect there will be no licensing deals between Microsoft and Google.