Articles Posted in Medical Mistakes

hospital bedMany states, including West Virginia, have strict procedures and requirements that govern the filing of any tort claim related to medical professionals or health care facilities. In West Virginia, these procedures are contained within the West Virginia Medical Professional Liability Act (MPLA). A failure to follow these procedures can result in the immediate dismissal of a claim. Since the requirements can be arduous, plaintiffs will, on occasion, try to avoid them by creatively pleading tort claims that they argue fall outside the purview of a medical malpractice or medical liability claim. In a recent case before the West Virginia Supreme Court, a plaintiff tried but failed to creatively plead a premises liability claim against a health care provider.

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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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emergency roomWhen an individual is charged with committing a crime, a prosecutor has the obligation to prove, beyond a reasonable doubt, the elements of that crime in order to obtain a conviction. This often includes establishing that the defendant had the required mental state and that the defendant engaged in the actions he is alleged to have committed. In addition, for most crimes, a prosecutor must show that the actions of the defendant actually contributed to the injury that occurred. For instance, if a defendant touched a victim on the arm without permission, and the victim later broke her arm in an accident, the defendant would not be liable for an assault resulting in broken bones. It was not his touch that caused the injury but the intervening accident.

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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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Personal injury cases can often be complicated legal matters that involve a number of responsible parties. They become even more complex when the case involves a government agency, as a recent case out of West Virginia’s Supreme Court shows. The good news is that the law gives injured persons at least a limited right to pursue damages from a negligent government agency.

ambulance-1440939Mr. and Mrs. Miller called Randolph County 911 in February 2010, explaining that their daughter was ill and had fallen in the bathroom of their home. The County emergency operators then contacted Elkins-Randolph County Emergency Squad, a separate government entity that provides emergency medical services in the area. The Millers called 911 again six minutes later, explaining that their daughter was still unconscious and asking the operator to hurry in sending an ambulance to the house. The EMS arrived at the Miller’s home roughly 22 minutes after the first call. By that point, the Millers had already driven their daughter to the hospital in their own car. She had no pulse when she arrived at the emergency room and was pronounced dead three hours later.

The Millers later sued Randolph County 911 and Elkins-Randolph County EMS, alleging that they were negligent in failing to properly train their employees and failing to adequately respond to the calls. The County 911 eventually settled the claims against it. Granting summary judgment to the EMS, however, a circuit court held that the governmental agency was immune from suit for duties owed to the general public. The State Supreme Court agreed on appeal.

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342559_jumping_for_joy.jpgThe West Virginia Supreme Court recently affirmed a circuit court decision clearing a physician and a registered nurse of medical malpractice, in the case of an 18-year old who died of a blood clot in 2004.

The young woman’s mother, Theresa Coleman, brought a civil suit against Dr. Allan Chamberlain and RN Patricia Hackney for medical malpractice, on the grounds that the blood clot was caused by oral contraceptives that they prescribed. The defendants, meanwhile, argued that Sara Coleman’s own actions and her health history were the cause. A few days prior to her death, Sara Coleman had fallen on a trampoline, whereas she had last taken a contraceptive pill four weeks prior. Sara Coleman had reportedly missed two days of work after her fall, and suffered shortness of breath on the morning of her death. She had a history of obesity and smoking, as well as a family history of blood clots, pulmonary embolism, and deep vein thrombosis.

Dr. Chamberlain was later dismissed from the lawsuit, and Dr. Michael Nutt added. After the circuit court jury returned a verdict in favor of Nutt and Hackney, Theresa Coleman filed a motion for a new trial. The circuit court denied her motion in April 2012, prompting Coleman to then file an appeal to the West Virginia Supreme Court. She argued that the circuit court had erroneously applied a new statute to an older case. The statute limits the liability of a health care provider when a patient ingests prescription drugs that the provider has approved. However, the supreme court affirmed the lower court ruling.

The supreme court first looked at Theresa Coleman’s contentions: the circuit court erred in allowing Dr. Chamberlain to be dismissed from the lawsuit; the circuit court erred in not allowing testimony about a missing medical form; the circuit court erroneously denied Coleman the right to present evidence as to Sara Coleman’s medical treatment; and the circuit court erred in denying Theresa Coleman the opportunity to impeach — or cross-examine — an expert witness’s credentials.

The supreme court found that Coleman had other opportunities to question the expert medical witness’s status other than cross-examination. The justices also noted that the circuit court judge laid out a lengthy analysis of his rulings on the missing medical form and other related issues, which meant that the judge studied the issues at length and did not act erroneously.
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1334533_ambulance.jpgThe family of a patient who died from an untreated urinary tract infection has sued the Charleston, West Virginia hospital where he sought treatment. Back in 2007, Clarence Leroy Dunnavant, who suffered from multiple sclerosis, checked into the Saint Francis Hospital with a high fever caused by a urinary tract infection. However, doctors allegedly misdiagnosed Dunnavant’s urinary tract infection, resulting in Dunnavant dying in the hospital less than one day later.

Dunnavant reportedly died after a hole developed in his intestinal tract, causing air to slowly fill his abdomen. The alleged result was that Dunnavant died through slow suffocation. Now Dunnavant’s family blames Saint Francis for negligent behavior. They have sued both the hospital and several of its doctors and nurses. The family’s attorney argues that Dunnavant’s on-call doctor never took the steps required to determine whether Dunnavant had a perforated bowel, and did not even personally examine Dunnavant until shortly before Dunnavant’s death. A second doctor failed to notice that Dunnavant’s X-ray showed that his abdomen was filled with air and therefore did not call for a radiologist for interpretation. Dunnavant’s nurses were also accused of negligent behavior for failing to keep the on-call doctor informed of Dunnavant’s symptoms and not following the doctor’s instructions for his care.

The on-call doctor insists that he followed careful procedures. He claims that the symptoms relayed to him by the hospital staff throughout the evening led him to believe that Dunnavant was suffering from a less serious ailment. The on-call doctor allegedly ordered all of the treatment based on the information received. In any event, the fates of Saint Francis and its staff, the on-call doctor, and the X-ray doctor lie in the hands of a West Virginia jury.

Medical mistakes are sadly all-too-common, with more than 200,000 occurring each year nationwide. This number is higher than the number of people killed in car accidents, yet mistakes are probably still underreported. The most frequent medical mistakes tend to involve prescription drugs, surgical errors, and birth injury mistakes. Over the years, the Wolfe Law Firm has seen all of these types of cases, as well as the issue involving Dunnavant’s case: misdiagnosis and poor care.
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