Articles Posted in Medical Malpractice

pregnancyWhen a family member or loved one is gravely injured or killed as a result of the negligence of another party, it is natural to want to seek out as many avenues as possible for relief or justice against the party at fault. In most situations, plaintiffs are precluded from bringing multiple rounds of claims against the same defendant.  Thus, for instance, a plaintiff cannot bring a lawsuit for negligence against a defendant and then, after losing, attempt to bring a different negligence claim.  Courts generally hold that plaintiffs are entitled to their day in court, but not to repeatedly drag a defendant into court if they lose.  However, this does not mean that it is impossible to bring multiple personal injury claims when a plaintiff feels that one claim does not adequately cover the harm that they have suffered. A recent case out of the neighboring state of Maryland looks at situations in which both personal injury and wrongful death claims can be brought.

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elderlyNursing home negligence is an all too frequent topic in the news these days. As the population of the United States grows increasingly older, and young adults find themselves trapped between raising children of their own and taking care of their elderly parents, older individuals are more and more likely to spend time in a nursing home or assisted living facility. While many of these service providers have stellar reputations, quality care, and a genuine consideration for their residents, recent stories have highlighted the darker side of nursing homes.  In some cases, nursing homes prey on the vulnerable elderly members of society, subjecting them to abuse, neglect, and even death.

A recent case before the West Virginia Supreme Court deals with the tragic death of Robert Thompson, an elderly man suffering from Alzheimer’s disease who resided at Nicholas County Nursing & Rehabilitation, which is owned by CMO Management, LLC (“CMO”). Mr. Thompson died in July 2011 from injuries resulting from prolonged abuse and neglect, including hip fractures, malnutrition, and serious pain. In 2013, Wanda Williams filed suit on behalf of Mr. Thompson for negligence and wrongful death. She sought damages not only for what happened to Mr. Thompson but also for systemic problems with the nursing facility during the course of his time there from 2009 to 2011.

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opioidsNews media across the country have been chronicling the consistent rise in opioid use and addiction throughout the United States over the last few years. Whether due to health issues, economic struggles, or general malaise among the public, the use and abuse of opioids has risen to the level of a national health crisis.  Opioids are prescription drugs, requiring that they be prescribed by a doctor and dispensed by a pharmacist.  Thus, as addiction levels have risen, criticism has increasingly turned to the possible contributions of physicians and pharmacists to this growing problem, as well as their liability for the relative ease of access to and misuse of prescription medications.

In response to concerns about the way health care professionals may be negligently contributing to an opioid epidemic, West Virginia Attorney General Patrick Morrisey recently unveiled new draft best practices for physicians and pharmacists who prescribe and dispense opioid medications.  Thus far, the best practices have been met largely with support by the medical community, since they seek to standardize the correct ways for medical professionals to use opioids within their practice, and lessen possibilities of mistakes or misuse within the State.

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operation bladeEvery day, thousands of Americans place their lives and their trust in the hands of the medical professionals who advise them, treat them, and operate on them. We take for granted that doctors and nurses are trained professionals with years of schooling and experience to guide their decision-making and ensure the health and safety of their patients. However, a recent study by researchers at Johns Hopkins University suggests that our optimistic faith in the medical profession may be misleading us, and the rate of medical errors in West Virginia and throughout the country is much higher than many of us have previously believed.

In a study released on May 3 in the BMJ (British Medical Journal), researchers argue that a careful look at the data available shows that medical errors are currently the third-ranking cause of death in the United States.  These include not only medical errors that occur during surgery or other high-risk treatments, but also medical misdiagnoses, erroneous prescriptions, and faulty treatments. In total, the researchers calculate that 250,000 people die from medical errors every year.

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united-states-on-charts-1458255-1280x960Plaintiffs typically bring lawsuits in the forum, or court, that is most convenient for them.  This is most often where they reside, but it may also be where an injurious act took place, or where the defendant resides.  In many personal injury cases, both parties reside in the same state or district. For instance, two neighbors who run into each other during an accident in their neighborhood would be likely to seek out the same court for their dispute.  But in certain circumstances, the parties may differ about where the lawsuit should be brought.  For instance, a defendant may spend half of his year in one state and half of his year in another, and argue that a lawsuit brought against him should be transferred to a different state.  In order to analyze where a case should be brought, courts consider a variety of factors.  A recent decision by the West Virginia Supreme Court highlights the weighing of the factors that must occur.

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index-1239049-1599x1066It is widely understood in federal and state courts that certain documents are privileged and protected from the public eye, including the eyes of other parties. These include documents created in anticipation of a case proceeding to trial, or documents evidencing communications between a lawyer and his or her clients.  One less well-known privilege that protects certain documents from public production is the peer review privilege. The peer review privilege, which protects documents produced in evaluating a physician, is widely raised in medical malpractice cases and is the subject of much dispute.  Recently, the Supreme Court of Appeals of West Virginia sought to clarify this privilege under state law.

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Courts have the power to award two different types of damages in West Virginia personal injury cases:  compensatory damages and punitive damages. Compensatory damages are intended to make the injured person “whole” by compensating the person for related medical costs, missed wages resulting from time away from work, pain and suffering, and emotional distress. Punitive damages are designed to punish a person or entity being sued for particularly callous behavior.

gavel-5-1236432The U.S. District Court for the Southern District of West Virginia recently explained in a medical malpractice case some of the requirements that a person must meet in order to assert a claim for punitive damages. Although the standard was recently changed, the case gives a good example of what courts look at when considering punitive damages claims.

Mother and Father sued an emergency room doctor and his hospital employer in March 2015, alleging that the doctor’s negligence contributed to their baby son’s death. Among other claims, the parents said the doctor failed to take into account when treating the baby that he showed signs of hemophilia – a rare blood disorder – and to take adequate steps to address the condition. They argued that both the doctor and the hospital failed to live up to the “duty of care” required of a physician and a hospital under the circumstances and that the hospital fraudulently misrepresented the quality of services provided in advertisements touting the expertise of their doctors. The parents asked the Court to award them both compensatory and punitive damages.

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During the discovery process, parties to a lawsuit have the opportunity to seek information, documents, and other evidence from one another. It’s an essential part of litigation and one that can help a person suing for personal injury to solidify and weigh the merits of his or her case. But just because you can seek information generally doesn’t mean that you can necessarily ask for everything under the sun. A recent ruling by the U.S. District Court for the Southern District of West Virginia explains some of the basic limits on the discovery process in the medical malpractice setting.

apple-on-the-desk-1428611-mMs. Wilshire’s son died from cardiac arrest in August 2009, roughly four days after being discharged from Plateau Medical Center’s emergency department following treatment for acute cocaine intoxication. She later sued the hospital and Dr. Brian Love for medical malpractice, claiming that Love deviated from accepted standards of medical practice in treating her son. She also alleged that Love released her son from the hospital too early and that this contributed to his death.

In the litigation that followed, Wilshire served discovery requests on Love in which she asked him to provide a detailed history of his education. Among other information, she sought a list of the schools he attended, the degrees he earned, and the dates on which he attended each institution. After Love provided the information, which showed that he’d spent 10 years completing medical school, Wilshire informed Love that she intended to subpoena the Marshall University School of Medicine to produce Love’s education records from that institution. Love objected and filed a motion to quash the subpoena.

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521961_hospital_bed.jpgRecently, the West Virginia Supreme Court affirmed a circuit court’s ruling that favored a medical company accused of killing a six-year-old child. The breakdown was three to two in favor of Kanawha County Circuit Court Judge Paul Zakaib’s decision that favored Pediatrix Medical Group.

The decision concerned an incident back in September 2007, when a mother took her young daughter to Raleigh General Hospital after the latter obtained multiple bug bites on her body, resulting in a headache and fever. The Hospital initially treated the child and released her, only for her to return the following day with abdominal pain, vomiting, and a nose bleed. She was taken to the Charleston Area Medical Center and diagnosed with La Crosse encephalitis, a virus transmitted by mosquitoes that causes brain inflammation. Early in the morning on September 23, the girl complained about pain at the site of her IV, suffered from seizures, and fell unconscious. A physician employed by Pediatrix was on-call and ordered several tests, including a blood gas test and a chest X-ray, as well as anti-seizure medication. The medication did not alleviate the seizures, so the physician sought to intubate the girl. It turned out that because she suffered from respiratory acidosis, she needed to be intubated immediately. The girl ended up dying the next day.

The mother filed a lawsuit, claiming that by delaying the intubation, the physician had acted negligently. A plaintiff’s expert testified on her behalf, stating that the daughter should have been intubated once the blood gas results came back. However, the expert also admitted that he did not know when the results returned, or whether the physician knew of the results when he arrived to intubate the patient. The expert had no criticism of the physician’s actions once he intubated her.
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steth.jpegRecently, the West Virginia Supreme Court upheld a circuit court decision in favor of a hospital that had been sued for vicarious liability. The case involved a 2007 incident where Dr. Jan Cunningham went to the emergency room of Herbert J. Thomas Memorial Hospital (“Thomas Hospital”) and was admitted as a patient by Dr. Hossam Tarakji. A few days later, Dr. Richard Fogle performed exploratory surgery on Dr. Cunningham, which led to an infection, which required numerous follow-up procedures and resulted in Dr. Cunningham suffered a permanent injury. At some point during this ordeal, Dr. Tarakji went on vacation and Dr. Thomas Rittinger took his place. Dr. Cunningham eventually sued the three other doctors for negligence and Thomas Hospital for vicarious liability.

Vicarious liability involves situations where the employer is held liable for negligent actions by the employees. In order for the employer to be liable, the actions must take place within the “scope of employment.” A hospital could be held liable for a doctor’s harmful actions during a patient’s treatment. However, it would not be responsible for a doctor’s actions if he got into a drunk driving accident because — unless he was in a hospital-owned vehicle on his way to a patient or to the hospital — he would not be acting within the scope of employment.

One hitch to Dr. Cunningham’s argument was that the three doctors were not directly employed by Thomas Hospital. Rather, Drs. Tarakji and Rittinger were employed by Hospitalist Medicine Physicians of Kanawha County and Dr. Fogle was employed by Delphi Health Partners. Both entities were named in Dr. Cunningham’s lawsuit. Dr. Cunningham argued that even if the doctors were not directly employed by Thomas Hospital, they held themselves out as actual agents of the hospital, or the hospital had a joint venture with the two other entities.

The Kanawha County Circuit Court rejected the argument that the doctors were employees or actual agents of Thomas Hospital, and so Dr. Cunningham appealed to the West Virginia Supreme Court. The Supreme Court examined Thomas Hospital’s connection to the doctors in light of the legal factors for determining the difference between an employee/actual agent and an independent contractor: (1) how the “servant” was selected and engaged; (2) the manner of compensation; (3) who had the power of dismissal; and (4) who had the power of control.

For the first factor, the Supreme Court found that the two other entities were responsible for recruiting the three doctors, not Thomas Hospital. For the second factor, the Supreme Court noted that Thomas Hospital sent compensation to Delphi and Hospitalist, which then paid Drs. Tarakji, Rittinger, and Fogle. Thomas Hospital also did not bill patients for the doctors’ services or pay for their malpractice insurance. For the third factor, while the hospital required the doctors to follow its bylaws, there was nothing to suggest that the hospital had the power to terminate the doctors directly for noncompliance. Finally, for the fourth factor — considered to be the most important — the Supreme Court found that Thomas Hospital only exercised a level of control permitted by previous court decisions, and therefore did not have the power of control. Taking all of the factors together, the Supreme Court determined that Thomas Hospital was not the doctors’ employer and thus was not vicariously liable for their negligent actions. The Supreme Court also did not accept the argument that the two other entities had a joint venture with the hospital.
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