Oceanus MLA v1i2 FEB.vp - Oceanus Insurance

Volume 1, Issue 2 Earn CME Credit/See back cover February 2010
Practice Liability
Business Practices/Unfair Competition . . 3
Informed Consent . . . . . . . . . . . . 7
Peer Review . . . . . . . . . . . . . . . 8
Nontreatment/Administrative Liability . . 9
Defensive Actions/Countermeasures
to Malpractice Suits . . . . . . . . . . . 10
New/Expanded Liability . . . . . . . . . 12
See full Table of Contents on Page 2
Malpractice
Review with Analysis
$3,000,000 RECOVERY - Failure of
radiologist to properly diagnose breast
cancer. . . . . . . . . . . . . . . . . . . 1
$2,000,000 VERDICT - Hysterectomy
performed by defendant ob/gyn for
presumed uterine fibroid tumors -
Amended pathology report included
atypical features - Months later tubes and
ovaries removed by defendant . . . . . 17
$875,000 VERDICT - Lack of informed
consent in performance of Lasik eye surgery
- Inadequate screening to discover thin
corneas . . . . . . . . . . . . . . . . . 18
$800,000 VERDICT - Primary care
negligence - Failure to properly monitor
decedent taking Coumadin . . . . . . . 20
DEFENDANTS’ VERDICT - Emergency
department negligence - Alleged failure to
diagnose medial nerve laceration following
palm laceration to minor plaintiff . . . . 22
See full Table of Contents on Page 2
Malpractice Verdicts
by Specialty
Dental . . . . . . . . . . . . . . . . . . 23
Emergency Department. . . . . . . . . 24
Hospital Negligence . . . . . . . . . . . 24
Nursing Home Negligence . . . . . . . 25
Ob/Gyn . . . . . . . . . . . . . . . . . 26
Ophthalmology . . . . . . . . . . . . . 26
Orthopedic Surgery . . . . . . . . . . . 27
Pain Management . . . . . . . . . . . . 28
Phlebotomy . . . . . . . . . . . . . . . 29
Podiatry . . . . . . . . . . . . . . . . . 29
Primary Care . . . . . . . . . . . . . . 30
Radiology . . . . . . . . . . . . . . . . 31
See full Table of Contents on Page 3
Malpractice Review
Malpractice Verdict Review with Analysis
$3,000,000 RECOVERY AFTER JURY AWARD OF $10,000,000
- FAILURE OF RADIOLOGIST TO PROPERLY DIAGNOSE
BREAST CANCER - DELAYED DIAGNOSIS AND
TREATMENT OF STAGE 4 FATAL BREAST CANCER.
CASE SUMMARY
The plaintiff’s decedent, a 44-year-old mother of two young children, received annual
mammograms. In April 1999, Dr. Arlene Sussman, a radiologist with South Shore
Radiologists, P.C., interpreted the decedent’s mammogram as normal. In October 1999,
the plaintiff felt a lump in her left breast and told her obstetrician/gynecologist who
palpated the lump and advised her to undergo a mammogram, sonogram and possible
aspiration of the lump. The plaintiff underwent the mammogram and sonogram and Dr.
Beth Listhaus, a radiologist also associated with South Shore Radiologists, P.C.,
interpreted the results as normal. She advised the decedent that she did not need to
undergo an aspiration of the lump.
CASE DETAILS
When the lump grew and appeared inflamed, in January 2000, a surgeon biopsied the
lump. The biopsy revealed stage four breast cancer with node involvement. The lump was
too large to be removed surgically and the decedent underwent chemotherapy and radiation
for five months. In 2000, the decedent underwent a mastectomy. In August 2001, the
plaintiff died from the disease.
The decedent’ husband, individually and as administrator of his wife’s estate, commenced
this action against the surgeon, the obstetrician/gynecologist, the two radiologists, South
Shore Radiologists, P.C., and various other physicians who had treated the decedent. The
allegation was that the physicians had failed to timely diagnose the decedent’s cancer, that
this failure was medical malpractice and that the remaining defendants were vicariously liable
for the actions of their employees. The court dismissed the claims against the surgeon, the
ob/gyn, the treating physicians and the hospital. The defendant radiologists argued that the
mammograms were normal and that even if the October 1999 mammogram was not
normal, the disease was aggressive and the result would have been the same.
The decedent was a homemaker whose children were 14 and 11. The plaintiff’s expert
oncologist opined that if the breast cancer had been diagnosed in either April or October
1999, the disease would have been at an earlier stage and the chance of survival would have
been much greater. The defendants’ expert oncologist opined that the disease was
aggressive, that the results did not warrant a biopsy and that the cancer would have resulted
in her death regardless of an earlier diagnosis.
The trial lasted two weeks. The jury deliberated for five hours. It found that Dr. Listhaus
and South Shore Radiologists had misread the mammogram performed in October 1999 and
Copyright 2010 Jury Verdict Review Publications, Inc
Continued on page 16

BUSINESS PRACTICES/UNFAIR COMPETITION
Letter terminating a perinatologist’s employment at a hospital was
unclear as to whether it was based on a one-year notice without
cause, or a 30-day notice for cause, presenting a question of fact in
breach of employment contract claim . . . . . . . . . . . . . . 3
An LPN terminated by a hospital for unwillingness to make up
missed weekend shifts could not sustain an age discrimination claim
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A hospital could not claim a medical corporation violated RICO by
“turbocharging” because the alleged violations did not lead to injuries
“directly,” but only “indirectly.” . . . . . . . . . . . . . . . . . 6
INFORMED CONSENT
A patient’s informed consent to a cardiac catheter ablation might not
have been obtained because she might not have been told of the
specific risk that caused her death . . . . . . . . . . . . . . . . 7
PEER REVIEW
Two surgeons were entitled to immunity because they did not act in
bad faith in peer review of cases of another surgeon who was asked
to resign from a hospital . . . . . . . . . . . . . . . . . . . . . 8
NONTREATMENT/ADMINISTRATIVE LIABILITY
Merely admitting to a hospital for further testing a patient who later
killed his wife upon discharge did not meet the institution’s
obligations under EMTALA. . . . . . . . . . . . . . . . . . . . 9
Table of Contents
Medical Practice Liability
DEFENSIVE ACTIONS/COUNTERMEASURES TO
MALPRACTICE SUITS
Discovery of the malpractice insurance information of a physician
who was a defendant in a professional negligence action was not
permitted . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
After receiving information leading a plaintiff to file suit against
several malpractice defendants, she waited too long to add two
other physicians as defendants . . . . . . . . . . . . . . . . . 11
NEW/EXPANDED LIABILITY
Questions of fact existed as to whether the alleged negligence of a
doctor and a hospital in diagnosing and treating a patient’s heart
attack caused her to lose an opportunity for a better result . . 12
A mental health patient was improperly ordered committed and
treated because two physicians had not personally examined him
before filing their supporting affidavits . . . . . . . . . . . . . 13
An internal medicine and infectious disease specialist was qualified
to testify in an action alleging that a gynecologist was negligent in
treating an abdominal/pelvic infection of a patient who later died
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A trial court gave an incorrect statement of the “mere happening”
jury instruction influencing an unfavorable verdict against a patient
whose leg was amputated after a blood clot formed following
surgery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Medical Malpractice Review with Analysis
$3,000,000 RECOVERY AFTER JURY AWARD OF $10,000,000 - Failure of radiologist to properly diagnose breast cancer ........1
Delayed diagnosis and treatment of stage 4 fatal breast cancer. (Even in situations where deviation for failure to render an earlier cancer
diagnosis is clear, the case can nonetheless be successfully defended on the basis that an earlier diagnosis, because of the nature of the condition
involved, may not have made a material difference to the ultimate outcome)
$2,000,000 VERDICT - Hysterectomy performed by defendant ob/gyn for presumed uterine fibroid tumors - Amended pathology
report included atypical features - Months later tubes and ovaries removed by defendant ......................................17
Endometrial stromal sarcoma. (A physician who relies on an important statement regarding a diagnosis being made by a specialist in an oral
statement should record that statement within the medical record so as to render some support to a contention later on questioning what was
actually said in that important conversation)
$875,000 VERDICT - Lack of informed consent in performance of Lasik eye surgery - Inadequate screening to discover thin corneas . . 18
Ectasia of left eye - Permanent limited vision. (A valid informed consent is not necessarily uniform from patient to patient and may require
additional information being imparted where the patient is incurring additional risks due to a pre-existing condition)
$800,000 VERDICT - Primary care negligence - Failure to properly monitor decedent taking Coumadin .........................20
Massive intracranial hemorrhage - Wrongful death. (Where liability is clear, but damages, by the very nature of the case, are limited,
practitioners should seriously consider conceding liability and proceeding on the issue of injury and damages alone so as to avoid any emotional
impact of the egregious deviation on the lay jury in evaluating damages)
DEFENDANTS’ VERDICT - Emergency department negligence - Alleged failure to diagnose medial nerve laceration following palm
laceration to minor plaintiff ....................................................................................... 22
(Where two independent physicians are accused as co-defendants in a medical malpractice litigation, whenever possible and consistent with
the truth, attempts should be made to offer a unified defense so that the positions of both accused physicians can be mutually supportive, rather
than contradictory)
2 Healthcare Liability Review

Medical Malpractice Verdicts by
Specialty
Dental
DEFENDANT’S VERDICT - Prosthodontic
negligence - Negligent installation of
bridgework - Headaches - Aggravation of
preexisting TMJ.......................................23
Emergency Department
DEFENDANT’S VERDICT - Failure to
diagnose stroke in 15-year-old female ....24
Hospital Negligence
$2,060,000 RECOVERY - Negligent
credentialing and supervision - Wrongful
death of woman following transabdominal
laparoscopic cyroablation........................24
DEFENDANT’S VERDICT - Alleged
negligent failure to prevent suicide - Alleged
failure to admit patient, a police officer, who
presents with complaints of severe anxiety
and advises that he had previously secured
his weapons because of his concerns......25
Nursing Home Negligence
$350,000 RECOVERY - Failure to develop
and implement decubitus ulcer plan despite
assessed risk upon admission - Defendant’s
negligence allegedly substantial factor in
death of patient.......................................25
Ob/Gyn
$4,230,000 VERDICT - University Center
for Reproductive Health negligence - Theft
of eggs, lack of consent for egg transfers and
misappropriation of eggs resulting in live
births.......................................................26
Ophthalmology
DEFENDANT’S VERDICT - Alleged failure
to advise plaintiff to seek immediate medical
treatment for eye symptoms - Eye infection
- Retinal detachment - Loss of vision in one
eye ..........................................................26
Orthopedic Surgery
DEFENDANT’S VERDICT - Inappropriately
sized tibial base plate allegedly inserted in
knee replacement surgery - Total knee
revision to remove and replace plate......27
Pain Management
DEFENDANT’S VERDICT - Pain
management physician allegedly negligent in
implanting pain pump in face of infection
present at site of prior pump implant -
Subsequent E Coli infection requires
removal and six-month delay in new pump
implant - Claim for six months of pain and
suffering and suicidal ideation .................28
Phlebotomy
DEFENDANT’S VERDICT - Failure to use
proper needle and use of excessive force
while drawing blood - Anterior interosseous
nerve damage..........................................29
Podiatry
DEFENDANT’S VERDICT - Alleged
malpractice during metatarsal osteotomy -
lack of informed consent - Alleged failure to
monitor and negligent post-operative care -
Continuing pain and disability .................29
Primary Care
$12,500,000 CONFIDENTIAL RECOVERY -
Improper placement of feeding tube -
Respiratory arrest in infant - Oxygen
deprivation - Cerebral palsy....................30
Radiology
$275,000 VERDICT - HMO radiologist fails
to appreciate pathology on chest x-rays -
Failure to adequately label x-rays - Delayed
diagnosis of Stage IV squamous cell
carcinoma of the lung - Wrongful death
................................................................31
Medical Practice Liability
Business Practices/Unfair Competition
LETTER TERMINATING A PERINATOLOGIST’S
EMPLOYMENT AT A HOSPITAL WAS UNCLEAR AS TO
WHETHER IT WAS BASED ON A ONE-YEAR NOTICE
WITHOUT CAUSE, OR A 30-DAY NOTICE FOR CAUSE,
PRESENTING A QUESTION OF FACT IN BREACH OF
EMPLOYMENT CONTRACT CLAIM.
A letter terminating a perinatologist’s
employment in a hospital department was
unclear as to whether it was based on the
employment contract’s one year
termination provision, without cause, or its
30-day termination provision, for cause, an
Ohio appellate court has held.
Children’s Hospital Medical Center of
Akron created a Maternal Fetal Medicine
Department (MFMD) when it purchased
the private practice of two local
perinatologists. The plan was to staff
MFMD with five full-time perinatologists
who would see patients at Akron General
Medical Center Summa Health System and
various outlying high risk outpatient clinics.
The plaintiff was hired only part-time. He
executed a five-year contract with
Children’s for part-time employment which
commenced in June 2005. Children’s
worked with recruitment firms, seeking
other perinatologists for the department.
By a letter dated May 2006, Children’s
terminated the plaintiff’s employment.
The plaintiff filed a complaint against
Children’s and the chairman of the
department, who had sent her the
Volume 1, Issue 2, February 2010 3

Business Practices/Unfair Competition
termination letter, alleging breach of
contract, among other things. The
defendants moved for summary judgment
which was granted. However, this ruling
was reversed on appeal. The appellate court
explained that there were questions of fact
as to whether the letter terminating the
plaintiff was based on the one-year
termination provision (applicable for
termination without cause) or its 30-day
provision (applicable for termination for
cause).
COMMENTARY
Generally, to prevail on a claim alleging
breach of contract, a plaintiff has to prove
the existence of a contract, performance by
the plaintiff, breach by the defendant and
damage or loss to the plaintiff resulting
from the breach. The plaintiff alleged that
the defendants breached her employment
agreement by terminating her employment
in violation of its notice provision. The
defendants responded that the plaintiff was
entitled to only 30 days notice of
termination, rather than one year, because
she was terminated for cause, rather than
without cause.
The plaintiff was hired for a five-year
term from June 2005, through June 2010,
subject to earlier termination under certain
limited circumstances. One section of the
employment agreement provided for
automatic termination upon death or
conviction for a felony or misdemeanor
related to the provision of or payment for
health care services. Another section
provided for termination without cause
upon one-year prior written notice by either
party to the other. Finally, a section
provided for termination for cause under
various circumstances upon written 30 day
notice.
By letter dated April 2006, the plaintiff
was notified of continued complaints
regarding her clinical performance and
professional conduct. The letter delineated
11 specific areas requiring her “continued
performance improvement[.]” It said that,
“[t]hisletter...shouldbeconsidered
notification of your one-year prior written
notice for termination of your contact
unless marked improvement is noted in
your performance. The period of notice
may be reduced to 30 days if there is not
marked improvement in your
performance.”
Following the plaintiff’s failure to report
to work, the defendants sent her a letter
terminating her employment, for cause,
based on her performance 30 days after the
letter purporting to give her notice of the
need to improve her performance.
The appellate court found that the letter
did not give a definitive 30-day notice of
termination. Rather, it indicated that if the
plaintiff failed to show marked
improvement in her performance, a 30-day
notice of impending termination might be
forthcoming. It gave her one year’s notice
of termination and stated that the notice
period could be reduced to 30 days in the
absence of marked improvement in her
performance.
An employment contract may address
termination of an employee for cause
and without cause and the respective
termination period that applies to
each. Where an employment contract
contains multiple provisions for termination
and multiple notice periods,
confusion could arise if the language
is not clear, or if a termination notice
is not clear. Physicians should seek
the advice of local counsel before
signing an employment agreement to
make sure that it clearly delineates
the rights and obligations of the parties
on such crucial issues such as
compensation and termination, and
that the physician understands these
provisions.
REFERENCE
Lindsay v. Children’s Hosp. Med. Ctr. Of
Akron, 2009 WL 692129 (Oh. 2009).
AN LPN TERMINATED BY A HOSPITAL FOR
UNWILLINGNESS TO MAKE UP MISSED WEEKEND SHIFTS
COULD NOT SUSTAIN AN AGE DISCRIMINATION CLAIM.
A licensed practical nurse (LPN) at a
hospital who was terminated for refusing to
cooperate in rescheduling missed weekend
shifts and lying with respect to Family
Medical Leave Act (FMLA) information
could not sustain a claim that her firing was
based on age discrimination in violation of
the Age Discrimination in Employment
Act (ADEA), a federal court in Mississippi
has decided.
The plaintiff worked as an LPN at the
George County Hospital from 1973 until
terminated in 2006. At the time of her
termination, she was working in the
emergency room. Beginning in 2002, she
also worked as a licensed practice nurse in
the emergency room at the Stone County
Hospital when that work would not
interfere with her assigned weekend shifts
attheGeorgeCounty.
In 2006, the plaintiff notified George
County that she would be requesting
FMLA leave intermittently to care for her
terminally ill spouse. She was given the
necessary leave forms, filled them out and
returned them. Her request to also apply
for FMLA leave relating to previous
absences was granted. She was scheduled
to work certain weekends, but did not,
apparently to take care of her spouse, and
Medical Liability Alert (MLA) has been developed with input from the University of Medicine and Dentistry of New
Jersey. Dennis P. Quinlan, M.D., Medical Director, UMDNJ-CME, serves as faculty coordinator for MLA. The University
of Medicine and Dentistry of New Jersey is accredited by the Accreditation Council for Continuing Medical Education
to sponsor continuing medical education for physicians. For reader response, please contact us via E-Mail at
(gary@zarins.com) or via regular mail to: MLA Reader Response, 45 Springfield Ave., Springfield, N.J. 07081.
Although this publication serves to alert Health Care Professionals to litigation affecting their practice, because of variations in fact patterns and
local jurisdictions, specific legal consultation should be obtained before acting on any information contained herein.
4 Healthcare Liability Review

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Business Practices/Unfair Competition
was allowed to take FMLA leave for these
absences. She then refused to cooperate
with her supervisor in scheduling makeup
weekend shifts, in violation of the hospital’s
policy.
Informed of her lack of cooperation, the
hospital administrator decided to
investigate whether the plaintiff had worked
at Stone on the weekends for which she
had requested FMLA leave. Her supervisor
confirmed with Stone County Hospital that
the plaintiff had worked there on the
weekends she had taken FMLA leave. The
plaintiff was then terminated, “due to
insubordination by refusing to meet with
the [Director of Nursing] and refusing to
make up missed weekends . . . which is
stated in the policy manual [and] for call-ins
requestingFMLA...tostaywithhersick
husband [when] she worked those dates at
Stone . . .”
The plaintiff filed a charge of age
discrimination with the EEOC noting that
her supervisor made comments which
humiliated and embarrassed her like “you
must be real tired working two jobs at your
age.” She also alleged that “a younger and
less experienced person reported to work in
the ER on my shift later that same evening”
of her termination. The EEOC dismissed
her charge of discrimination. Nevertheless,
the plaintiff filed a lawsuit in a federal court
alleging she was unlawfully terminated due
to her age and her election to take
intermittent leave under the FMLA. The
defendant requested summary judgment
which was granted. The court concluded
that the hospital presented sufficient
legitimate nondiscriminatory reasons for
the plaintiff’s termination of employment.
COMMENTARY
The ADEA makes it unlawful for an
employer to discharge an individual because
of such individual’s age. When a plaintiff
alleges disparate treatment, liability depends
on whether the protected trait (under the
ADEA, age) actually motivated the
employer’s decision. This meant that the
plaintiff’s age had to have “actually played a
role and had a determinative influence on
the outcome.” If there was no direct
evidence of age discrimination, the plaintiff
could create a rebuttable presumption of
discrimination by establishing the elements
of a prima facie case: at the time plaintiff
was fired, he or she was a member of the
class protected by the ADEA (namely,
individuals who were at least 40 years of
age; was otherwise qualified for his or her
position; was discharged; and the defendant
hired persons not in the protected class, or
persons substantially younger, to fill the
plaintiff’s position.
Thecommentsallegedlymade,for
example, that “at her age she should not be
working two jobs,” were found not to
constitute direct evidence of discrimination.
Accordingly, the plaintiff relied on
circumstantial evidence. Although the court
found that she established a prima facie
case of age discrimination, it also found
that the hospital articulated legitimate,
nondiscriminatory reasons for firing her.
These included her refusal to cooperate
with her supervisor’s attempts to
reschedule her missed weekend shifts, that
she had been dishonest about her need for
FMLA leave on the weekends she missed,
and that at least four written warnings or
rule violations were issued. Further, the
plaintiff failed to show that the hospital’s
reasons for firing her were pretextual.
Direct evidence of discrimination
could be used to establish a claim under
the ADEA and other
antidiscrimination statutes. Absent
such direct proof, an inference of discrimination
may be proved under the
burden-shifting analysis. However,
when the employer offers multiple,
nondiscriminatory reasons for termination,
the plaintiff bears the burden
of proving that all of those reasons
are pretextual.
REFERENCE
Dalrymple v. George Regional Health
Systems, 2009 WL 742762 (D. Miss. 2009).
Volume 1, Issue 2, February 2010 5

Business Practices/Unfair Competition
A HOSPITAL COULD NOT CLAIM A MEDICAL
CORPORATION VIOLATED RICO BY “TURBOCHARGING”
BECAUSE THE ALLEGED VIOLATIONS DID NOT LEAD TO
INJURIES “DIRECTLY,” BUT ONLY “INDIRECTLY.”
A hospital could not claim that a medical
corporation violated the Racketeer
Influenced and Corrupt Organizations Act
(RICO) through “turbocharging” because
the alleged violations led to the alleged
injuries only “indirectly,” not “directly,” the
U.S. Third Circuit Court of Appeals has
decided.
The Saint Barnabas Corporation (SBC),
through a consortium of hospitals that it
owned and operated throughout New
Jersey, allegedly received excessive
Medicare payments by reporting inflated
patient treatment costs. SBC settled an
action with the United States. The
settlement agreement (in this qui tam
action) expressly provided that it was not
an admission of SBC’s liability.
Longmont United Hospital, a Medicare
participant located in Colorado, filed a class
action suit in a federal court claiming
violations of RICO by SBC. The trial court
granted SBC’s motion to dismiss
Longmont’s RICO claims on the ground
that the complaint failed to show both
proximate causation and SBC’s
participation in a RICO “enterprise.” A
federal appellate court then affirmed. It
explained that Longmont lacked “standing”
to pursue a RICO claim against SBC
because, at best, it had suffered harm
“indirectly” related to SBC’s alleged
“turbocharging,” rather than “directly,”
adding that there was no need to broaden
the universe of actionable harms to permit
RICO suits by parties who have been
injured only indirectly.
COMMENTARY
Under the RICO statute, any person
injured in his business or property by
reason of a violation of the statute could
sue for damages. However, for the plaintiff
to have “standing” to assert a RICO claim,
the alleged violation had to be a direct
proximate cause of the plaintiff’s injury.
When a court evaluates a RICO claim for
proximate causation, the central question is
whether the alleged violation “led directly”
to the plaintiff’s injuries. The motivating
principles behind this need for a direct
relation between the injury and the
injurious conduct include the difficulty in
ascertaining damages caused by remote
actions; the risk of duplicative recoveries;
and the prospect that more immediate
victims of an alleged RICO violation could
be expected to pursue their own claims.
In this case, the appellate court found
that SBC’s conduct was not a direct
proximate cause of Longmont’s injuries.
According to Longmont, SBC’s scheme
reduced Longmont’s Medicare
reimbursements by both increasing the cost
threshold necessary to qualify for “Outlier
Payment” (those designed to compensate
hospitals for treating especially costly
patients) and decreasing the amount of
those payments. However, the Centers for
Medicare & Medicaid Services (CMS) stood
between SBC’s conduct and Longmont’s
injuries. CMS was the agency that
interpreted the Medicare Act, promulgated
and enforced Medicare payment regulations
and administered Medicare payments. The
“Outlier [Payment] Threshold” was the
amount CMS established annually. CMS
also assigned the statewide average to a
hospital when its cost-to-charge ratio fell
below the National Threshold.
Thus, the appellate court found that
CMS’ policy generated the excessive Outlier
Payments because the higher statewide
average was applied to the formula used to
calculate these payments. SBC’s alleged
inflation of hospital costs was found not to
be the cause of Longmont’s injuries.
Instead, it was CMS’s response to this
behavior (i.e., reimbursing SBC for its
inflated costs without ensuring that they
were justified and raising the qualification
threshold for Outlier Payments in
subsequent years) that led to a decrease in
Longmont’s Outlier Payments.
The court also found that the motivating
principles at the heart of the proximate
cause requirement support its holding in
this case. First, it would be nearly
impossible to ascertain the amount of
Longmont’s damages attributable to SBC’s
reporting of inflated costs; second, there
was an appreciable risk of duplicative
recoveries; and third, the government was a
direct victim, and they had already
vindicated the laws by pursuing its own
claims and entering into a $265 million
settlement with SBC.
Special rules may apply where certain
types of actions are brought. For example,
for a private party (e.g., a private
hospital) to maintain a RICO
claim against another medical entity,
the proximate cause rule developed
for RICO actions would apply. Under
these rules, the injuries may have to
be the “direct,” rather than “indirect”
result of the alleged behavior
which violates RICO as these terms
have been defined in the context of
RICO litigation and failure to sustain
this burden could result in dismissal of
the action.
REFERENCE
Longmont v. Saint Barnabas
Corporation, 305 Fed. Appx. 892 (3rd. Cir.
2009).
6 Healthcare Liability Review

Informed Consent
A PATIENT’S INFORMED CONSENT TO A CARDIAC
CATHETER ABLATION MIGHT NOT HAVE BEEN
OBTAINED BECAUSE SHE MIGHT NOT HAVE BEEN TOLD
OF THE SPECIFIC RISK THAT CAUSED HER DEATH.
A patient’s informed consent to a cardiac
catheter ablation might not have been
obtained because she might not have been
told about the specific risk, an
atrio-esophageal fistula, that caused her
death, a California appellate court has held.
The patient suffered from cardiac
arrhythmia. She consulted the defendant
cardiologist and electrophysiologist to
discuss treatment with a cardiac catheter
ablation. This procedure involved inserting
a catheter into a blood vessel and winding it
into the heart. Electrodes on the tip of the
catheter would measure the heart’s
electrical activity and determine the location
of the “short circuit” that interrupted the
heart’s normal rhythms. Once doctors
identified the area of the abnormal electrical
activity, energy was applied to destroy a
small amount of heart tissue. This resulted
in the formation of lesions that halted the
abnormal electrical disturbances from that
area and restored the heart’s natural
rhythm.
The defendant and another physician,
also a defendant, often worked as a team
and arranged to perform the procedure.
The evening before the procedure, the
other physician met with the patient to
explain the procedure. She executed various
informed consent forms during the
meeting. The first defendant performed the
procedure, assisted by an electrophysiology
fellow. There were no apparent
complications, and the patient went home
the following day. However, the plaintiff
began experiencing visual disturbances
along with tingling and numbness in her
hands and arms. She called 911 and an
ambulance transported her to an
emergency room.
Doctors at the ER concluded that she
had suffered a transient ischemic attack (a
mini-stroke) and transferred her to a
telemetry unit for continuous electronic
monitoring. The next day, she suffered a
drop in blood pressure and a decrease in
her level of consciousness. The following
day, doctors determined she had suffered a
stroke affecting 80 to 90 percent of her
cognitive abilities and probably would not
regain consciousness. Soon after, she
suffered brain death and was removed from
life support. She died shortly thereafter. An
autopsy revealed she had died from the
effects of an atrio-esophageal fistula, “a
rare, but usually fatal, complication of the
cardiac catheter ablation procedure.”
The plaintiff filed an action against both
physicians and the hospital where the
procedure took place (UCLA), alleging that
the defendants failed to obtain her
informed consent. The defendants sought
summary judgment which was granted.
However, this ruling was reversed on
appeal. The appellate court explained that a
question of fact existed as to whether the
defendants should have informed the
decedent of the specific risk (an
atrio-esophageal fistula) that led to her
death.
COMMENTARY
A physician generally has a duty of
reasonable disclosure of the available
choices with respect to proposed treatment
and of the dangers involved with each. The
scope of a physician’s duty to disclose is
measured by the amount of knowledge a
patient needs in order to make an informed
choice. There was no dispute that the
defendants failed to warn the decedent of
the risk of death from the atrio-esophageal
fistula complication. The issue was whether
they were required to warn her about this
specific complication.
To meet their burden, the defendants
cited the forms the decedent executed the
day before the procedure: one, “Cardiac
Catheter Ablation,” disclosed the risk of
cardiac perforation and included the
warning “You may die from the
procedure;” a second, “Cardiac
Catheterization” said, “You may die from
the procedure” and stated the probability of
death as “1 in 1000;” the third,
“Transesophageal Echocardiogram,”
disclosed the possibility of injury to the
esophagus and adjacent tissue; and, finally,
“Electrophysiology (EP) Study,” disclosed
risks of cardiac perforation and heart
attack.
The defendants also relied on their
expert’s declaration that the
atrio-esophageal fistula complication
suffered was very rare. He stated that
“Although some in the electrophysiology
community believe that the incidence of
[atrio-esophageal fistula] is as high as one
percent, only about 18 atrio-esophageal
fistulas have been reported worldwide out
of approximately 20,000 to 30,000 catheter
ablations for atrial fibrillation - suggesting
that the risk of this complication is far less
than one percent.”
To the contrary, the appellate court
concluded that given that at least some
professionals in the electrophysiology
community believed the atrio-esophageal
fistula complication was as high as 1 in 100,
10 times higher than the risk disclosed, a
jury could have determined the defendants
provided inadequate disclosures. Moreover,
the plaintiff asked specific questions
regarding conditions potentially resulting in
death demonstrating unique concerns
which expanded the scope of the required
disclosure.
Some medical procedures may have a
risk of causing the death of the patient
which a physician may have to
disclose. However, the specific details
of such disclosure may not be so
clear. Whether a physician should disclose
every way the procedure could
result in death may be more than
called for, although the particular circumstances
(e.g., questions by the patient)
can be important in
determining the extent of required
disclosure.
REFERENCE
Secarea v. Regents of the Univ. of
California, 2008 WL 4951050 (Cal. App.
2008).
Volume 1, Issue 2, February 2010 7

Peer Review
TWO SURGEONS WERE ENTITLED TO IMMUNITY
BECAUSE THEY DID NOT ACT IN BAD FAITH IN PEER
REVIEW OF CASES OF ANOTHER SURGEON WHO WAS
ASKED TO RESIGN FROM A HOSPITAL.
No evidence indicated that two general
surgeons acted in bad faith when engaging
in peer review of several cases of another
general surgeon who was asked to resign
from a hospital, entitling them to immunity,
the Court of Appeals of Wisconsin has
held.
The plaintiff and two other general
surgeons at Community Health Network,
Inc. (CHN), the defendants, entered into a
one-year employment contract which they
renewed annually for many years. At some
point, interpersonal and professional
differences arose between them. ICU
nursing staff attributed low morale and
threats of attrition to the plaintiff. The chair
of the surgery department gave the plaintiff
written warning that the next episode
would result in suspension of privileges.
Eventually, the plaintiff notified CHN that
he would not renew his employment
contract, although he remained a member
of the medical staff as an independent
physician.
Several months later, the Medical
Executive Committee (MEC), convened to
peer review two of the plaintiff’s cases. The
Medical Patient Care Counsel (MPCC) had
flagged them as Level III cases, meaning
that “most experienced, competent
practitioners would have handled the case
differently” in at least one respect. The
plaintiffagreedthatinthefuturehewould
obtain medical consults on his
postoperative patients admitted to the ICU.
A week later, he wrote directly to the chief
of staff criticizing one of the other
surgeon’s care of two patients.
The MEC suspended the plaintiff’s MEC
participation for six months for
circumventing peer review procedures,
which required first taking concerns to the
Surgical Patient Care Council (SPCC).
Shortly after, the SPCC held peer review
discussions on four more of the plaintiff’s
cases. The two other surgeons with whom
the plaintiff had originally entered the
employment contract participated in those
reviews. The plaintiff protested that peer
reviews by “economic competitors” posed
a conflict of interest and requested outside
peer review. CHN at times outsourced peer
reviews, but it had no policy for doing so
on demand.
Since the plaintiff had changed his status
from CHN employee to independent
healthcare provider, he had to reapply to
participate in Network Health Plan (NHP),
a local health insurance group. As part of
the application process, NHP required the
CHN chief of staff to complete a
credentials verification questionnaire. He
noted the plaintiff employment history, but
still recommended that NHP accept his
application. However, NHP did not. It
advised the plaintiff that it would file a
report with the National Practitioner Data
Bank (NPDB) if “required by law.” The
plaintiff did not timely appeal and NHP
filed an Adverse Action Report.
The plaintiff applied to renew his clinical
privileges and medical staff membership at
CHN. Its president and CEO encouraged
him to voluntarily withdraw his application
and advised him that if he did not, CHN’s
medical staff leadership and executive
management would recommend against
reappointment. The letter also advised that
a cooperative withdrawal would “most
likely” not generate a need to submit a
report to the NPDB. The plaintiff
withdrew his application, and his CHN
medical staff membership ended.
The plaintiff filed an action against the
defendant and others, alleging tortuous
interference with contract, among other
things. The defendants moved for
summary judgment. The plaintiff
responded that they saw his thriving
practice as an economic threat and used the
peer review process to cloak their motive of
ousting him. The trial judge granted
summary judgment to the defendants and
this ruling was affirmed on appeal. The
appellate court found no evidence
supporting the plaintiff’s contention that
the defendant doctors acted in bad faith in
reviewing the plaintiff’s cases, so that they
were protected by the state’s peer review
statute.
COMMENTARY
Similar to other jurisdictions, Wisconsin’s
peer review statute provided that: “[N]o
person acting in good faith who
participates in the review or evaluation of
the services of health care providers . . . is
liable for any civil damages as a result of
any act or omission by such person in the
course of such review or evaluation.”
Wisconsin courts have to presume good
faith. To overcome this presumption, the
plaintiff had to present “clear and
convincing” evidence, which he did not do.
In the appellate court’s view, he only
speculated that the defendants were
improperly motivated by economic gain.
He labeled them “competitors” because all
threeweresurgeonsinthesametownand
asserted that they “stood to gain” if he left.
He asserted that they acted in bad faith
because CHN allowed them to critique his
cases under the guise of peer review despite
his requests for outsourcing, but he cited
no hospital bylaw authorizing outside peer
review upon request.
Furthermore, even assuming that the
defendants were biased against him, the
plaintiff did not suggest how they may have
held sway over the 12 physicians on the
MEC, the six other SPCC peer reviewers,
or the physicians on the MPCC of which
they were not a part.
Peer review has been encouraged as
a means of reviewing and improving
patient health care at hospitals. To
protect doctors who participate in
peer review activities, state statutes
often offer such participants immunity
from civil liability if such participation
was conducted in “good faith,”
which may be presumed. To overcome
a presumption of good faith, a
plaintiff physician may have to present
clear evidence of “bad faith” and
not simply rely on assertions that
those participating in the process
were competitors and, therefore,
acted in bad faith.
REFERENCE
Defendant: Community Health
Networks, Inc., 2009 WL 606112 (Wis.
App. 2009).
8 Healthcare Liability Review

Nontreatment/Administrative Liability
MERELY ADMITTING TO A HOSPITAL FOR FURTHER
TESTING A PATIENT WHO LATER KILLED HIS WIFE UPON
DISCHARGE DID NOT MEET THE INSTITUTION’S
OBLIGATIONS UNDER EMTALA.
Merely admitting to a hospital for further
testing a patient who later killed his wife
upon discharge did not meet the
institution’s obligations under the
Emergency Medical Treatment and Active
Labor Act (EMTALA), the U.S. Sixth
Circuit Court of Appeals has held.
The patient’s wife took him to the
emergency room of Providence Hospital
because he was experiencing severe
headaches, muscle soreness, high blood
pressure, vomiting, slurred speech,
disorientation, hallucinations and delusions.
Hospital staff was also informed that the
patient had “demonstrated threatening
behavior.” Emergency room physicians
admitted him for more tests.
Among the physicians who evaluated the
patient were a neurologist, a psychiatrist
and an internist. The neurologist
determined that the patient “was acting
inappropriately” and “appeared to be
somewhat obtunded,” but had “no overt
outward signs of trauma.” The neurologist
felt that a psychiatric evaluation was
warranted. His notes indicated his belief
that “an acute psychotic episode [must] be
ruled out.” The psychiatrist determined that
the patient was not “medically stable from a
psychiatric standpoint” and that he should
be transferred to the hospital’s psychiatric
unit to “reassess him.” This unit was
intended for patients expected to be
hospitalized and stabilized and who were
“acutely mentally ill.” The psychiatrist
planned to conduct “reality testing” to
determine the extent of the patient’s
delusions. His notes stated “observe
carefully for any indications of suicidal
ideation or behavior.” The notes also
indicated that the psychiatrist believed the
patient had an “atypical psychosis” and
“depression.”
The patient was never transferred to the
psychiatric unit, but rather, was informed
that he would be released. A hospital
clinical progress report signed by a doctor
statedthat“[patient]...wantstogohome.
His affect is brighter. No physical
symptomsnow...wifefearshim.Denies
any suicidal ideation.” In the discharge
summary the “final diagnosis” was that he
had a “migraine headache” and an “atypical
psychosis [with] delusional disorder.” Ten
days after he was released, the patient
murdered his wife.
The plaintiff filed an action in a federal
court against the hospital alleging violation
of EMTALA. The defendants sought
summary judgment which was granted.
However, this ruling was reversed on
appeal. The appellate court rejected the
defendant’s argument that by admitting the
patient, they had discharged their
obligations under EMTALA. The court
concluded that the defendants did not
satisfy their EMTALA obligations merely
by screening the patient and admitting him
to conduct further testing.
COMMENTARY
For hospitals that participate in Medicare
and have an “emergency department,”
EMTALA sets forth two requirements.
First, for any individual who comes to its
emergency department and requests
treatment, the hospital has to provide an
appropriate medical screening to determine
whether or not an emergency medical
condition exists. Second, if the hospital
determines that the individual has an
emergency medical condition, it has to
provide, within the staff and facilities
available, for such further medical
examination and treatment as may be
required to stabilize the medical condition,
or for transfer of the individual to another
medical facility with the appropriate
facilities. The statute defines “emergency
medical condition” as one manifesting itself
“by acute symptoms of sufficient severity
(including severe pain) such that the
absence of immediate medical attention
could reasonably be expected to result in
placing the health of the individual . . . in
serious jeopardy[.]” “To stabilize” means
“to assure, within a reasonable medical
probability, that no material deterioration
of the condition is likely to result from or
occur during the transfer of the individual
from a facility[.]”
The hospital argued that its decision to
admit the patient for six days and perform
further testing satisfied its obligations under
EMTALA. However, the appellate court
disagreed. In its view, EMTALA imposed
an obligation on the hospital beyond simply
admitting a patient with an emergency
medical condition. Instead, the statute
required “such treatment as may be
required to stabilize the medical condition,”
and forbade the patient’s release unless his
condition has “been stabilized.”
A hospital may not automatically
meet its obligations under EMTALA
by admitting a patient. If an emergency
medical condition exists, it may
be required to stabilize the patient.
EMTALA is not a malpractice statute,
but generally requires all patients receive
the same screening protocols
and efforts, within its capabilities, to
stabilize patients.
REFERENCE
Moses v. Providence Hosp. and Med.
Ctrs., Inc., 561 F.3d 573 (6th Cir. 2009).
Volume 1, Issue 2, February 2010 9

Defensive Actions/Countermeasures to Malpractice Suits
DISCOVERY OF THE MALPRACTICE INSURANCE
INFORMATION OF A PHYSICIAN WHO WAS A
DEFENDANT IN A PROFESSIONAL NEGLIGENCE ACTION
WAS NOT PERMITTED.
Discovery of the malpractice insurance
information of a physician who was a
defendant in a professional negligence
action was not permitted in Tennessee, the
state’s Supreme Court has ruled.
The plaintiff underwent abdominal
surgery at Centennial Medical Center. Upon
discharge, she went to her father’s home to
recover. Two days later, the patient was
admitted to the emergency department of
Crockett Hospital complaining of
abdominal pain. Two physicians diagnosed
a urinary tract infection and sent her home.
The following day, the patient returned to
Crockett’s emergency department
complaining of increased abdominal pain,
slurred speech and shortness of breath. A
physician made a preliminary diagnosis of
sepsis. She was transferred by helicopter to
Baptist Hospital where she later died from
sepsis.
The plaintiff filed a complaint against
several doctors and hospitals, including the
emergency department physicians at
Crockett Hospital and their employer. He
sought information concerning the extent
and amount of liability insurance coverage
by the defendants for the claims forming
the basis of the lawsuit. The defendants
objected, arguing that the information was
not subject to discovery under Tennessee’s
rules of evidence because the extent and
amount of liability insurance coverage was
not relevant to the subject matter of the
lawsuit.
The trial court entered an order
compelling the defendants to respond to
the plaintiff’s requests for information
regarding their liability insurance coverage.
However, an intermediate appellate court
reversed and the state’s high court affirmed
that decision. It decided that the state’s
evidence rules did not permit discovery of a
defendant’s insurance information in a
malpractice suit.
COMMENTARY
As a rule, parties to a lawsuit may obtain
discovery regarding any matter, not
privileged, which is relevant to the subject
matter involved in the suit. In Tennessee, it
is not grounds for objection that the
information sought will be inadmissible at
trial, if the information sought appears
reasonably calculated to lead to the
discovery of admissible evidence. The
question presented in this case was whether
information concerning the defendants’
liability insurance coverage was relevant to
the subject matter involved in the suit or
would lead to the discovery of admissible
evidence. The Tennessee Supreme Court
first stated that information concerning a
defendant’s liability insurance coverage
would be inadmissible at trial pursuant to
the state’s rule of evidence. The court then
said that it could also not conclude
discovery of this information appeared
reasonably calculated to lead to the
discovery of admissible evidence.
The court further elaborated that state
courts were divided on this issue. Some
permitted discovery of information
concerning liability insurance coverage
because it facilitated settlement, but others
found such information not relevant to the
merits of the case or infringed on the
defendant’s privacy. According to the
decision, 48 states allow discovery of such
information although one of them
permitted such discovery for settlement
purposes only in cases in which the insurer
was joined as a party; and the Federal Rules
of Civil Procedure made insurance
agreements subject to mandatory initial
disclosure. Nevertheless, the court
explained that Tennessee has resisted this
trend, although the decision urged the state
to align itself with the majority view that
insurance information be discoverable in
malpractice cases.
Discovery of insurance coverage may
encourage settlements by enabling
both sides to make a realistic appraisal
of the case, so that settlement
and litigation strategy are based on
actual knowledge, rather than speculation.
Moreover, the insurance company
often is the real party in interest
to the suit to the extent of its policy
limits so that knowledge of the insurance
agreement may be helpful to
the plaintiff to prepare for the case
and be apprised of his real adversary.
Nevertheless, this is a question for every
state to decide for itself and an
individual jurisdiction cannot be
forced to adopt a position just
because it represents the majority
trend in the country.
REFERENCE
Thomas v. Oldfield, 279 S.W.3d 259
(Tenn. 2009).
10 Healthcare Liability Review

Defensive Actions/Countermeasures to Malpractice Suits
AFTER RECEIVING INFORMATION LEADING A PLAINTIFF
TO FILE SUIT AGAINST SEVERAL MALPRACTICE
DEFENDANTS, SHE WAITED TOO LONG TO ADD TWO
OTHER PHYSICIANS AS DEFENDANTS.
After receiving information leading a
plaintiff to file a malpractice suit against
several medical defendants, she nonetheless
waited too long (i.e., until the statute of
limitations had expired) to add two other
physicians as defendants, a Florida appellate
court has decided.
In August 1999, the plaintiff (a parent
suing on behalf of her child) gave birth to a
son. As of that date, she had knowledge
that she had suffered a ruptured appendix
and had undergone an emergency
appendectomy during pregnancy. She also
had knowledge of the physicians who were
involved in her care and treatment which
included attempts to prevent the child’s
premature delivery. She was further aware
that a premature delivery could result in
injury to her son. Attempts to prevent a
premature delivery were unsuccessful.
The plaintiff retained counsel and in May
2001, mailed correspondence to St. Luke’s
Hospital seeking medical records associated
with the plaintiff’s care and treatment. In
October 2001, the plaintiff served notices
of intent to initiate malpractice litigation on
various defendants alleging medical
negligence. However, two physicians
known to have been involved in her care
were not served at this time. More than two
years later, these two physicians were
served with additional notices of intent to
initiate medical malpractice litigation. They
filed motions for summary judgment,
arguing the claims against them were filed
outside the period established in the statute
of limitations.
During the hearing on these motions, the
plaintiff submitted additional information
from another doctor that allegedly put the
plaintiff on notice, for the first time, of the
alleged malpractice of the two physicians at
a later date. Nevertheless, the trial court
found that at least by May 2001, the
plaintiff had knowledge of injury and
knowledge of the possibility that such
injury was caused by medical negligence.
Accordingly, it granted summary judgment
in favor of the two physicians holding the
two-year period of limitations had elapsed.
This ruling was then affirmed on appeal.
The appellate court explained that when the
plaintiff received the information that led to
her initially filing a malpractice action, she
should have investigated and decided
whether to file suit against the two
physicians, which she did not do.
COMMENTARY
A statute of limitations determines the
time period available for a plaintiff to
initiate an action. A Florida statute
established several time periods relevant to
malpractice actions. The first was when the
incident giving rise to a malpractice action
was known or readily discoverable. It
expired two years later. The second was a
period of repose, applicable when the
incident giving rise to the malpractice
action was not, and reasonably could not
have been, discovered earlier. This period
begins to run the day the malpractice
occurred and expires up to four years from
that date, depending on whether or not the
malpractice could or should have been
reasonably discovered during this period.
The third period applied only to cases
involving children under eight years of age
and could enjoin the expiration of the
statuteofreposeuntilthechild’seighth
birthday, so long as the malpractice was not
and could not have been reasonably
discovered previously. Thus, if a child
under the age of eight was injured by an
incident of malpractice, and the malpractice
had not and could not have been
discovered, the statute’s four-year period of
repose extended only up to the child’s
eighth birthday. If a child under the age of
eight was injured by an incident of
malpractice and the malpractice was or
should have been discovered prior to the
child’s eighth birthday, the statute’s
two-year period of limitations began to run
and could extinguish the claim prior to the
child’s eighth birthday.
In this case, the appellate court found
that the plaintiff failed to initiate litigation
against the two physicians in question prior
to the expiration of the period of
limitations. In August 1999, the plaintiff
gave birth. As of that date, she had
knowledge that she had suffered a ruptured
appendix and had undergone the
emergency appendectomy that led to her
premature delivery. She retained an
attorney who initiated an action against
various defendants alleging malpractice, but
did not name the two physicians in the
initial action. Thus, the plaintiff was
required to investigate the claim to
determine if reasonable grounds existed to
commence a medical malpractice action.
She was found to be barred from bringing
a claim against new defendants two years
after October 2001, the date on which,
after having requested, received and studied
the medical records, she served notices of
intent to institute medical malpractice
litigation on certain individuals and entities.
A statute of limitations may have several
layers guiding plaintiffs as to the
appropriate time period for filing a
malpractice suit. There is usually a
fixed time period for commencing the
action which could be extended by a
discovery rule or a continuous course
of treatment. There may also be a
statute of repose which sets a longer
fixed period in which the action has to
be commenced although, as in
Florida, it may not start running
against a minor until a certain age is
reached which could also be qualified
by a discovery rule.
REFERENCE
Germ v. St. Luke’s Hospital Ass’n., 993
So.2d 576 (Fla. App. 2008).
Volume 1, Issue 2, February 2010 11

New/Expanded Liability
QUESTIONS OF FACT EXISTED AS TO WHETHER THE
ALLEGED NEGLIGENCE OF A DOCTOR AND A HOSPITAL
IN DIAGNOSING AND TREATING A PATIENT’S HEART
ATTACK CAUSED HER TO LOSE AN OPPORTUNITY FOR A
BETTER RESULT.
Questions of fact existed as to whether
the alleged negligence of a doctor and a
hospital in diagnosing and ordering
thrombolytic treatment for a patient’s heart
attack caused her to have lost an
opportunity for a better result, the Court of
Appeals of Michigan has decided.
The plaintiff experienced difficulty
breathing and collapsed. An ambulance
transported her to Huron Valley Hospital
where she complained of chest pains
shortness of breath and nausea. An EKG
revealed a possible septal wall infarct (i.e.,
heart attack). Given the plaintiff’s medical
history (she was 41 years of age, athletic
and had no history of heart disease) the
emergency room physician initially believed
she had a pulmonary embolism. This
diagnosis, however, was ruled out after a
CAT scan of the plaintiff’s thorax.
The plaintiff continued to suffer from
severe respiratory distress and her
condition worsened. A cardiac specialist,
the defendant doctor, was summoned and
ordered a 2-D echocardiogram, which
revealed decreased wall motion in the right
ventricle suggesting that she had had a
heart attack. He administered dopamine to
stabilize the plaintiff’s condition and she
was transferred to the intensive care unit.
Although Huron Valley was not equipped
to perform emergency invasive bypass
surgery, no arrangements for transfer were
made at this time.
Before administering any thrombolytic
therapy, or drugs to break down blood
clots, the defendant ordered a CAT scan of
the plaintiff’s head, concerned that she may
have suffered from an aneurysm due to her
history of a closed head injury, which could
contraindicate thrombolytic therapy. The
results were negative and the plaintiff was
administered Retavase. The defendant
believed that the plaintiff might stabilize as
a result of the Retavase and that transfer
would not be necessary. However, her
condition did not stabilize and the
defendant decided to transfer the plaintiff
to a hospital equipped to perform
emergency bypass surgery.
The plaintiff was transferred to
Beaumont Hospital where doctors
discovered that bypass surgery was not
possible because of irreparable damage to
her cardiac tissue. She underwent surgery
for the placement of a ventricle assist
device. Afterward, Beaumont transferred
the plaintiff to the University of Michigan
hospital where it was determined that she
would need a heart transplant, which she
received. After the transplant, the plaintiff
had to take immunosuppressant drugs on a
daily basis, had difficulty with daily tasks
and could not return to work.
The plaintiff filed an action against the
defendant and Huron Valley alleging their
negligence caused her to lose an
opportunity for a better result (i.e.,
receiving a cardiac bypass and a longer life
expectancy as opposed to a heart transplant
and a shorter life expectancy). The alleged
negligence was failure to timely diagnose
the heart attack, timely order thrombolytic
therapy and timely transfer her to a facility
capable of emergency cardiac intervention.
The defendants moved for summary
disposition, arguing that the plaintiff’s
opportunity to survive increased because
patients receiving heart transplants had a 65
percent chance of surviving 10 years, while
patients, like the plaintiff, suffering from
cardiogenic shock survived only 30 percent
ofthetime.Thetrialjudgegrantedthe
defendant’s motion. However, this ruling
was reversed on appeal. The appellate court
explained that there were conflicting
interpretations of the statistics applicable in
this case.
COMMENTARY
In jurisdictions such as Michigan, in an
action alleging medical malpractice, the
plaintiff has the burden of proving that he
or she suffered an injury that more
probably than not was proximately caused
by the negligence of the defendant. In other
words, the plaintiff cannot recover for loss
of an opportunity to survive or an
opportunity to achieve a better result unless
lost opportunity was greater than 50
percent.
In this case, one of the plaintiff’s experts
testified that patients in cardiogenic shock
only had a 30 percent chance of survival.
The plaintiff’s other expert testified that her
10-year survival rate after her heart
transplant was 65 percent. To support her
position that her chances of survival
decreased more than 50 percent as a result
of the alleged malpractice, one of the
plaintiff’s experts indicated that less than 10
percent of transplant patients survived 25
years after transplant surgery, while more
than 60 percent of patients receiving bypass
surgery would survive over 25 years.
Pre-malpractice (i.e., assuming the
plaintiff had timely received a bypass), she
had more than a 60 percent chance of
surviving 25 years or more, while
post-malpractice (i.e., with the heart
transplant), the plaintiff’s chances of
surviving more than 25 years dropped to
less than 10 percent. The difference was 50
percent or more which was sufficient for a
lost opportunity claim under Michigan law.
Thus, factual issued based on the statistics
existed as to whether the plaintiff could
prove loss of an opportunity for a better
result.
States differ on the legal definition of
“proximate cause.” Some states, such
as Michigan, require, in a claim based
on loss of an opportunity to survive or
for a better result, that the plaintiff
must establish that there was at least
a 50 percent loss of opportunity (i.e.,
that it was more probable than not)
to succeed. This type of proof generally
involves statistics which can be
subject to various interpretations that
may require the case be given to the
jury.
REFERENCE
Lanigan v. Huron Valley Hospital, Inc.,
2009 WL 536842 (Mich. App. 2009).
12 Healthcare Liability Review

New/Expanded Liability
A MENTAL HEALTH PATIENT WAS IMPROPERLY ORDERED
COMMITTED AND TREATED BECAUSE TWO PHYSICIANS
HAD NOT PERSONALLY EXAMINED HIM BEFORE FILING
THEIR SUPPORTING AFFIDAVITS.
A mental health patient was improperly
ordered to be committed and treated in a
facility because the two doctors who
supplied the supporting affidavits had not
personally examined the patient, the Court
of Appeals of Arizona has held.
A petition for a court ordered evaluation
of the patient was filed. It alleged that the
patient was a danger to himself and to
others. The application was filed by a case
manager at Magellan Health Services of
Arizona that managed the behavioral health
care delivery system, who had met with the
patient and alleged that the patient had
admitted to her that he had stopped taking
some of his medication prescribed to treat
his bipolar disorder, had exhibited
symptoms of mania (e.g., he had lost 30
pounds, and said he needed to talk to the
President because he had a solution to the
mortgage crisis), and had threatened to
jump out of her car if she attempted to take
him to the hospital.
The court granted the petition and issued
orders for detention and evaluation. The
patient was admitted to Magellan’s Urgent
Psychiatric Center and was transferred to
Desert Vista Hospital two days later, where
he resumed taking medication to treat his
bipolar disorder and was evaluated by two
doctors. After the evaluation, Desert Vista’s
deputy medical director filed a petition for
court ordered treatment. The petition
alleged that the patient was persistently or
acutely disabled. Attached were the
affidavits of both doctors.
The trial court found the patient
“persistently or acutely disabled,” in need
of treatment, and “unwilling or unable to
accept voluntary treatment.” He was
ordered to complete in-patient/out-patient
psychiatric treatment for a period not to
exceed 365 days (in-patient limited to 180
days). However, this order was reversed on
appeal. The appellate court concluded that
the applicable statute required that the two
physicians personally examine the patient as
part of the process of involuntary treatment
and commitment, which had not occurred.
COMMENTARY
Generally, involuntary treatment
proceedings have to strictly follow statutory
requirements. In Arizona, a statute required
that the process start with the petition for
evaluation. An “evaluation” was “a
professional multidisciplinary analysis based
on data describing the person’s identity,
biography and medical, psychological and
social conditions carried out by a group of
persons consisting of not less than . . . [t]wo
licensed physicians, who shall be qualified
psychiatrists, if possible . . . and who shall
examine and report their findings
independently . . .”
An “examination” was “an exploration of
the person’s past psychiatric history and of
the circumstances leading up to the
person’s presentation, a psychiatric
exploration of the person’s present mental
condition and a complete physical
examination.” If the evaluation determined
that as a result of a mental disorder, the
patient was “a danger to self or to others,
[was] persistently or acutely disabled or
[was] gravely disabled” the medical director
at the evaluating agency could file a petition
for involuntary treatment which had to be
accompanied by the affidavits of the two
physicians who had examined the patient
during the evaluation period. The
examining physicians also had to testify at
the hearing, but affidavits could be
submitted to the court in lieu of testimony.
In this case, both physicians’ affidavits
were submitted in lieu of testimony. The
patient called one of them to testify at the
hearing and cross-examined her about her
affidavit. The doctor testified that the
patient was asleep when she tried to
examine him and that she was unable to
wake him. She further testified that she
attempted to examine him an hour and a
half later, but “he was too sleepy” and
“would not cooperate” and wake up for the
examination. She admitted that his
medication’s side effects most likely
contributed to his inability to engage in the
examination. The doctor also conceded
that she had no personal knowledge of the
patient’s condition, did not conduct a
physical exam, and that she did not attempt
to examine him when he later awoke.
Nevertheless, she completed the affidavit
knowing that medication could have
interfered with his ability to interact with
her. Consequently, her affidavit was not
based on a personal examination.
Involuntary commitment and treatment
deprives an individual of liberty.
This is a serious matter that can usually
only be done pursuant to stringent
statutory requirements. Failure
to comply with clearly articulated
statutory requirements (e.g., a personal
examination by two physicians)
can undermine an institution’s efforts
to involuntarily commit and treat a
patient.
REFERENCE
In re MH, 205 P.3d 1124 (Ariz. App.
2009).
Volume 1, Issue 2, February 2010 13

New/Expanded Liability
AN INTERNAL MEDICINE AND INFECTIOUS DISEASE
SPECIALIST WAS QUALIFIED TO TESTIFY IN AN ACTION
ALLEGING THAT A GYNECOLOGIST WAS NEGLIGENT IN
TREATING AN ABDOMINAL/PELVIC INFECTION OF A
PATIENT WHO LATER DIED.
An internal medicine and infectious
disease specialist was ruled qualified, by a
Texas appellate court, to testify in an action
alleging that a gynecologist was negligent
and liable for the later death of a patient
who suffered from an abdominal/pelvic
infection.
The patient sought treatment from the
defendant physician, a gynecologist at
Grater Orange Women’s Center (GOWC),
for pain and swelling in her left vulvar area.
She alleged that the defendant took a
culture of the affected tissue, cauterized the
area and prescribed Augmentin. The
patient allegedly informed the defendant
the next day that the area had worsened
and he advised her to go to the hospital.
She was admitted that day to Memorial
Hermann Baptist Hospital by another
doctor who started treatment with Invanz,
but the patient did not significantly
improve. She was then transferred to
Continue Care Hospital and the culture the
defendant had taken was determined to
show Methicillin Resistant Staphylococcus
Aureus (MRSA).
The patient’s condition continued to
deteriorate and she was transferred to
Memorial Hermann Baptist
Hospital-Orange in shock with
hypotension, acidosis, renal and respiratory
failure. The plaintiff alleged that exploratory
surgery was performed for possibly
peritonitis and gangrenous bowel, but the
patient continued to worsen and was
transferred back to Memorial Hermann
Baptist Hospital-Beaumont to begin
dialysis. Ten days later, her Multiple Organ
Failure Syndrome and Adult Respiratory
Distress Syndrome worsened. She declined
into a coma and died from sepsis and
abdominal/pelvic infection.
The plaintiff filed an action alleging that
the defendant was negligent by improperly
diagnosing the decedent with cellulitis,
failing to timely follow-up on the culture he
performed, failing to properly diagnose her
condition, failing to prescribe sufficient
proper antibiotics to combat the infection
and failure to control her infection. The
plaintiff filed an expert report by a specialist
in internal medicine and infectious diseases.
The defendant objected arguing that this
expert was not qualified to offer an opinion
as to the liability and causation of a
gynecologist.
The defendant moved to dismiss the
complaint which was denied and this ruling
was affirmed on appeal. The appellate court
explained that the trial court acted within its
discretion in concluding that the plaintiff’s
expert demonstrated his knowledge of
accepted standards for the diagnosis, care
and treatment of the decedent’s condition.
COMMENTARY
Generally, a person who offers an
opinion concerning a breach of the
standard of care in a health care liability
claim has to qualify as an expert. In Texas,
to offer an opinion regarding whether a
physician departed from accepted standards
of care, a person has to be a physician who
was practicing medicine at the time such
testimony was given at the time the claim
arose; had knowledge of the accepted
standards of medical care for the diagnosis,
care, or treatment of the illness, injury, or
condition involved in the claim; and was
qualified on the basis of training or
experience to offer an expert opinion
regarding the standards of medical care.
The statute also provided that in
determining whether a witness was
qualified on the basis of training or
experience, the court had to consider
whether, at the time the claim arose or at
the time the testimony was given, that the
witness was board certified or had other
substantial training or experience in an area
of medical practice relevant to the claim,
and was actively practicing medicine in
rendering medical care services relevant to
the claim.
The defendant argued that the trial court
erred by determining that the plaintiff’s
expert was qualified to render liability and
causation opinions since an expert had to
have training in the specific medical care
services the defendant was providing to the
patient, and that the plaintiff’s expert was
an infectious disease specialist, rather than a
gynecologist. The defendant also argued
that the treatment or medical care services
at issue was the evaluation of a patient
presenting with suspected cellulitis, vulvular
abscess or some other labial process in a
gynecological setting, yet “the plaintiff’s
expert neither practiced nor specialized in
gynecology.”
However, Texas courts had previously
established that an expert did not need to
practice in the same field as the defendant
to be qualified to testify. The expert’s
report stated that he was a board certified
specialist in infectious diseases, was
engaged in the full-time practice of
infectious diseases, was frequently called
upon to treat patient with MRSA and that
the labia were not an uncommon area for
MRSA infections. In addition, he asserted
that the standard of care for treating labial
MRSA lesions did not differ substantively
between a gynecologist and a specialist in
infectious diseases. He explained in his
report that the decedent’s presentation was
so typical of MRSA, that the standard of
care required the defendant to start
treatment with an appropriate antibiotic
and that Augmentin was not an effective
antibiotic against MRSA.
In many jurisdictions, experts may be
qualified to testify even though they
practice in fields different from the
defendant. In these cases, the expert
needs to demonstrate sufficient overlap
of the two fields or familiarity
with the diagnosis and treatment of
issues involved in the case. However,
any differences in background and experience
may be elicited on cross-examination
and could affect the weight
of the testimony.
REFERENCE
Moheb v. Harvey, 2008 WL 5501166
(Tex. App . 2008).
14 Healthcare Liability Review

New/Expanded Liability
A TRIAL COURT GAVE AN INCORRECT STATEMENT OF
THE “MERE HAPPENING” JURY INSTRUCTION
INFLUENCING AN UNFAVORABLE VERDICT AGAINST A
PATIENT WHOSE LEG WAS AMPUTATED AFTER A BLOOD
CLOT FORMED FOLLOWING SURGERY.
A trial court gave an incorrect statement
of the “mere happening” jury instruction
influencing a verdict against a patient whose
leg was amputated after developing a blood
clot following surgery, the Supreme Court
of Nevada has held.
The plaintiff underwent back surgery at
Sunrise Hospital. During the surgery, a
blood clot formed in the plaintiff’s left leg
and complications related to the blood clot
arose, ultimately leading to the amputation
of her lower left leg. She filed a medical
malpractice action against Sunrise and the
surgeon, asserting that their negligence in
identifying and treating the complications
that arose during and after surgery caused
the loss of her leg. Specifically, the plaintiff
alleged that Sunrise failed to provide a
fluoroscope with vascular imaging software,
preventing the surgeon from properly
treating the plaintiff’s limb and increased
the time her vessels were without oxygen;
that it provided a “Quantum” operating
table that interfered with the ability to
obtain adequate diagnostic imaging of the
plaintiff’s lower leg; and that it failed to
provide an angiography suite.
At trial, Sunrise requested the following
jury instruction: “The mere fact that an
unfortunate or bad condition resulted to
the patient involved in this case does not
prove, or even imply, that by virtue of that
fact, that the defendant was negligent.” The
plaintiff objected arguing that because she
presented evidence of Sunrise’s negligence,
this case did not warrant this so-called
“mere happening” instruction (i.e., that the
mere fact that an untoward result occurred
was not in and of itself sufficient basis for
liability). In response, Sunrise asserted that
the purpose of this proposed instruction
was to remind the jury that the mere
happening of a bad result did not mean that
anyone was responsible, and that
something more than an accident and
consequent injury was required to
demonstrate negligence, particularly since
the plaintiff’s expert testified that one risk
associated with the type of surgery the
plaintiff underwent was the loss of limbs
resulting from a risk of damage to arteries
and veins.
Thetrialjudgegavetherequested
instruction and the jury returned with a
verdict in favor of the defendant. However,
the resulting judgment was reversed on
appeal. The appellate court ruled that since
the verdict was close (e.g., the jury verdict
was six to two), the incorrect statement of
the “mere happening” jury instruction
could have made a difference in the
outcome.
COMMENTARY
The trial court instructed the jury that the
mere fact that an unfortunate or bad
condition resulted to the plaintiff did not
prove, or even imply, that by virtue of that
fact, the defendant was negligent. The
so-called “mere happening” instruction had
been given in earlier cases in Nevada.
However, according to the appellate court,
thelanguageusedbythetrialjudgeinthis
case was not a correct statement of the law.
The court elaborated that a correct
statement of the “mere happening” jury
instruction would merely inform the jury
that something more, or in addition to, the
bad event was needed to support a claim of
negligence against the defendant. The
instruction used in this case, on the other
hand, informed the jury that the loss of the
plaintiff’s limb did not “prove or even
imply” that because the surgery ended
tragically, the hospital was negligent. Thus,
the jury was not clearly informed that it
could consider the mere happening of the
event, together with other evidence, in
determining whether the hospital was
negligent.
The court also found this misstatement
of the law to the jury was prejudicial to the
plaintiff because she provided enough
evidence for the issue of liability to be
close. She presented evidence suggesting
that the hospital was negligent or at least
created a close question of fact for the jury,
that decided in the defendant’s favor six to
two. The court concluded that had the
proper jury instruction been given, it was
“probable that a different result might have
been reached by the jury.”
A negative medical outcome in and of
itself is ordinarily not enough to prove
that the medical provider was negligent.
However, it may be one element
in establishing a case. A bad result together
with other evidence could lead
a jury to find that negligence had, in
fact, occurred and that a misstatement
to the effect of the bad result
through a “mere happening jury instruction”
could make the difference
in a close case.
REFERENCE
Cook v. Sunrise Hosp. + Med. Ctr.,
L.L.C., 194 P.3d 1214 (Nev. 2008).
Volume 1, Issue 2, February 2010 15

Medical Malpractice Review (cont'd from page 1)
that this error constituted medical
malpractice. However, the jury found that
Dr. Sussman did not depart from accepted
medical standards in reading the
mammogram performed in April 1999. The
jury awarded the plaintiff $10,000,000. This
included $5,000,000 for past pain and
suffering, $3,000,000 to the children for
loss of parental care and pecuniary
contribution and $2,000,000 to the
husband. After the verdict, the parties
settled for $3,000,000, the total insurance
coverage of the radiologist.
MEDICAL LIABILITY ANALYSIS
Plaintiff’s counsel believes that the high
jury award in this case owed much to the
fact that residents of Suffolk County are
well aware of the high cancer incidence in
their County and all know someone in the
area who is or has been a cancer patient.
Common sense and knowledge informed
the jury that physicians should be sensitive
and vigilant where there is a breast lump
and should not ignore or minimize its
danger. Campaigns to highlight the need
for mammograms have reached the public
and the plaintiff’s decedent was clearly
compliant in receiving annual
mammograms. She had done what she
could to protect her health, but was let
down by the professionals who were
expected to properly read the
mammograms. This compounded with the
decedent’s husband’s testimony regarding
her excruciating pain and suffering and the
loss to the young children of their mother
resulted in the $10,000,000 award.
RISK MANAGEMENT ADVISORY
It is interesting to note that this $10
million verdict was reduced significantly
and ultimately settled for $3
million, the amount of coverage available
to the defendant radiologist. The
plaintiff’s willingness to settle for an
amount significantly less then the verdict
amount may well have reflected a
consideration of the fragility of this
verdict in the appellate court based
upon the damages sustained as a result
of a mere three-month delay in
the cancer being diagnosed. In this
case, the verdict against the remaining
defendant radiologist was based
on his allegedly negligent interpretation
of the mammograms between
October 1999 and January 2000 when
the diagnosis was made. The plaintiff
would have been presented with the
difficult task of proving to the appellate
panel by a preponderance of the
evidence that the relatively insignificant
delay of three months in diagnosis
was causally related to the
damages suffered in the ultimate, untoward
outcome.
In this regard, the defense emphasized
that even if the October 1999
mammogram was found to be not
normal, the disease was aggressive
and that the outcome would have
nonetheless been the same, as evidenced
by the fact that the cancer
was diagnosed in January of 2000,
barely three months later. Had the
matter not settled, this deficiency in
causal relationship of injury to the
plaintiff as a result of the
three-month delay could have proved
fatal to the plaintiff’s case on appeal,
which was obviated by the settlement
of the parties for $3 million, as opposed
to the $10 million verdict.
Practitioners are reminded by this aspect
of the case that in order for a
verdict to be rendered in medical
malpractice litigation against an accused
physician, the plaintiff has the
burden of establishing not only deviation
from acceptable standards of
care, but also that the deviation was a
proximate cause of injury to the patient
that otherwise would not have
occurred. In medical malpractice litigation,
successful defenses can be
mounted not only on the basis that
there may not have been a deviation
from acceptable standards of care,
but also on the basis that the damages
involved may not have been a result
of that deviation, particularly in
situations where the deviation may
not have been a major contributing
factor to the ultimate untoward outcome.
This is particularly so where
there is an insufficiency of time between
the failure to render a proper
diagnosis and the resulting injury or
death of the patient, as it may well
have been in this case had it proceeded
to the appellate court and not
settled.
In this case, the plaintiff’s expert
oncologist opined that had the breast
cancer been diagnosed in October of
1999, the disease would have been at
an earlier stage than the Stage IV ultimately
found and that the patient’s
chance for survival would have been
much greater. The defendant’s expert
oncologist opined that the disease
in this case was particularly
aggressive and that the cancer would
have resulted in her death even if a
diagnosis had been made some three
months earlier.
Practitioners are once again reminded
by this aspect that even
where there exists a clear deviation
that may have occurred, the failure of
a plaintiff to establish by the preponderance
of the evidence that the deviation
was the proximate cause of
injury can result in a finding for the
defense which is just as effective as if
there had been no finding of deviation
in the first place. Where deviation is
based on a failure to render an earlier
diagnosis at a time when it was
substantially already too late to effectuate
a change beneficial to the patient,
the inability of the plaintiff to
establish that the deviation was a
proximate cause of injury should become
the focus of the defense and
can often be very effective.
EXPERTS
Plaintiff’s oncology expert: Richard
Hirchman from New York, NY. Plaintiff’s
radiology expert: Bonnie Dobkin from
Manhasset, NY. Defendant’s oncology
expert: Mark Citron from Lake Success,
NY. Defendant’s radiology expert: Gail
Phillips from Lake Success, NY.
REFERENCE
Suffolk County, NY. Bernard Roettger,
as Admin. vs. D.L., M.D. Case no.
002422/2002; Judge Peter H. Mayer.
Attorney for plaintiff: Salenger & Sack,
Esqs. in New York, NY. Attorneys for
defendant: Shaub Ahmuty Citrin & Spratt
in Lake Success, N, Lewis Johs Avallone
Aviles in Melville, NY and Kral, Clerkin,
Redmond,RyaninSmithtown,NY.
16 Healthcare Liability Review

$2,000,000 VERDICT - HYSTERECTOMY PERFORMED BY
DEFENDANT OB/GYN FOR PRESUMED UTERINE FIBROID
TUMORS - AMENDED PATHOLOGY REPORT INCLUDED
ATYPICAL FEATURES - MONTHS LATER TUBES AND
OVARIES REMOVED BY DEFENDANT - ENDOMETRIAL
STROMAL SARCOMA.
CASE SUMMARY
In this medical malpractice case, on
March 3, 1998, the 36-year-old female
plaintiff had a hysterectomy performed by
the defendant ob/gyn for presumed
fibroid tumors of the uterus. After an
initial pathology report stating that the
tumors were benign, the pathologist
issued an amended report, which included
observations of mitotic count, spindle
cells, lack of circumscription and other
atypical features and stated that
recurrence could not be ruled out. In late
1998, the plaintiff developed abdominal
pain and the defendant removed the
plaintiff’s tubes and ovaries in early 1999.
The same pathologist then issued a report
that endometrial stromal sarcoma, a
malignancy, had been found in the ovary
and that upon reexamining the 1998
tissue the tumor was felt to be similar.
CASE DETAILS
The plaintiff testified she did not learn
she had cancer until late December 2000
when she developed severe abdominal pain,
underwent surgery at another hospital and
was told she had a tumor large enough to
obstruct the bowel, which had originated in
her uterus and had been present in 1998.
The plaintiff’s expert gynecologist testified
that the standard of care required the
defendant to refer the plaintiff to a
gynecologist-oncologist for evaluation and
treatment after receiving the 1998
pathology report and again in 1999. The
plaintiff’s expert gynecologist-oncologist
also testified that if a
gynecologist-oncologist had been brought
into the case in 1998 and 1999, the plaintiff
would have been treated with additional
surgery, chemotherapy, radiation or a
combination, and that earlier treatment
would have allowed a chance of cure or
more effective treatment of the rare
malignancy.
The defense argued that the 1998
diagnosis was benign so it did not require a
referral, that the defendant reasonably
believed the 1999 surgery was adequate and
that additional therapy would do nothing
for the plaintiff’s rare form of cancer. The
defense also maintained that the plaintiff’s
cancer was incurable and had metastasized
to several distant sites by 1998.
After a trial that lasted approximately ten
days, the jury found in favor of the plaintiff
and awarded her $2,000,000 for past and
future pain and suffering.
MEDICAL LIABILITY ANALYSIS
Both standard of care and causation were
hotly contested in this case. The defendant
maintained that no referral was required in
1998 or 1999 and that in any case the
plaintiff could not have been cured as of
1998 so that a referral would not have
affected the outcome. Since the plaintiff
had already outlived the overall life
expectancy of five years for metastatic
uterinesarcomabythetimeoftrial,the
defense maintained that there was no
injury. The jury, however, answered “yes”
to special interrogatories asking if the
defendant was negligent in 1998 and 1999
and if the defendant’s negligence caused an
injury.
A big factor was the testimony of the
defendant himself. The defendant’s
testimony that he had contacted the
pathologist after receiving the reports and
was told to do nothing further was
contradicted by the pathologist, who
testified he was the one who called the
defendant because he was concerned that
the tumor was in the “gray zone” between
benign and malignant. The defendant also
testified that he told the plaintiff that “we
were lucky” and the cancer was caught early
in 1999, at a time when his expert
maintained she had incurable metastatic
cancer and when the defendant himself
believed her prognosis to be “hopeless”
because there was no treatment that could
help her.
RISK MANAGEMENT ADVISORY
This case basically hinged upon a
credibility issue regarding the inconsistencies
in testimony between the
defendant ob/gyn and the pathologist
as to what the pathologist actually informed
the defendant regarding the
nature and extent of the potential abnormality
he had found and about
which he alleged he informed the
ob/gyn in a timely manner. In this regard,
the defendant testified that after
receiving the reports, he was told
to do nothing further, which statement
was contradicted by the pathologist
who testified that he personally
called the defendant because he was
concerned that the tumor was in a
gray zone between benign and malignant.
The defendant ob/gyn apparently
relied on this conversation and
failed to make a notation within the
record contemporaneous with the
conversation to his detriment. In the
alternative, the defendant could have
required some written statement or
report from the pathologist as to the
conversation so as to provide evidence
at a later date as to what actually
transpired and why he failed to undertake
the specific action in regard
to these advisements allegedly having
been made by the pathologist.
Practitioners are reminded by this aspect
of the case that from a liability
standpoint, when important information
is imparted by a specialist, the
physician in receipt of that information
should, contemporaneous with
the event in question, record the fact
that he or she received such an advisement
from the specialist. Further,
they should note in the record what
particular actions were taken so as to
avoid a situation later on in a medical
malpractice litigation of having to rely
on an oral statement made that was
important to the litigation regarding
an allegation of liability for failing to
respond in a timely manner to the
purported information having been
received.
Volume 1, Issue 2, February 2010 17

Another important aspect of this case
was the defendant’s testimony that he
had told the plaintiff that she was
lucky that the cancer was caught
early in 1999. However, his expert alleged
that the plaintiff, in fact, had incurable
metastatic cancer at that
time and that the defendant himself
allegedly believed that the situation
and prognosis was hopeless and that
no treatment could have been effective.
This inconsistency in testimony
created an additional credibility gap
before the jury, which was hard and
difficult for the defendant to overcome
and which probably was extremely
persuasive in the jury’s ruling
in favor of the plaintiff.
Medical Malpractice Review
Practitioners are reminded by this aspect
of the case of the importance of
perceived credibility in medical malpractice
litigation and the difficulties
that might be encountered by a physician
where the evidence indicates, to
the satisfaction of the jury, that a
physician as a party to the litigation
may have lacked credibility in his testimony
regarding an important allegation
in the case. Practitioners
should take note of this aspect of the
case that physicians are usually held
in high regard by lay jurors, upon
whose very word they are generally
expected to rely on for their health
and well-being. Where there is clear
evidence of a lack of credibility demonstrated
in any litigation on behalf of
an accused physician, the jury, which
might forgive an unintentional mistake
in testimony made, will seldom
accept a demonstrated lack of credibility
on any significant issue made by
an accused physician in the litigation
involved.
EXPERTS
Plaintiff’s gynecologist-oncologist expert:
Dr. Robert Wallach from New York, NY.
Plaintiff’s ob/gynecologist expert: Dr.
Charles March from Los Angeles, CA.
Defendant’s gyn-oncologist expert: James
Dolan from Park Ridge, IL. Defendant’s
ob/gyn expert: Linda Holt from Chicago,
IL.
REFERENCE
Cook County, Illinois. Linda Sheppard
vs. Dr. H. Case no. 04-L-011269; Judge
Irwin J. Solganick. Attorney for plaintiff:
Lynne Duffey of Hofeld & Schaffner in
Chicago, IL. Attorney for defendant:
Catherine Coyne Reiter of Hepler Broom
in Chicago, IL.
$875,000 VERDICT - LACK OF INFORMED CONSENT IN
PERFORMANCE OF LASIK EYE SURGERY - INADEQUATE
SCREENING TO DISCOVER THIN CORNEAS - ECTASIA OF
LEFT EYE - PERMANENT LIMITED VISION.
CASE SUMMARY
This was a medical malpractice action
which alleged lack of informed consent,
as well as negligence. The plaintiff alleged
that the defendant ophthalmologist was
negligent in performing LASIK surgery
and failed to adequately screening the
plaintiff to discover that he had unusually
thin corneas. The plaintiff claimed that he
was not informed that his condition
posed an increased risk of injury from the
procedure, specifically the development
of ectasia. The defendant maintained that
the plaintiff was fully informed of the
risks and alternatives of LASIK surgery
and elected to proceed with the surgery.
During the trial, the plaintiff agreed to an
undisclosed settlement amount with the
laser center where the surgery was
performed and an optometrist who was
involved in the screening process.
CASE DETAILS
The plaintiff was a 27-year-old male at
the time he underwent a LASIK procedure
to both eyes performed by the defendant
ophthalmologist on January 9, 2001, in
Pittsburgh. The plaintiff testified that he
was never told nor made aware of the risks
involved in the surgery, in particular the risk
due to his thin corneas. The plaintiff’s
expert ophthalmologist testified that at the
time of the surgery, the plaintiff exhibited
abnormally thin corneas. The plaintiff’s
expert testified that thin corneas place
patients at increased risk for development
of a known LASIK complication called
ectasia. Ectasia is a bulging of the corneal,
also called latrogenic keratoconus or
secondary keratoconus because it is
basically a surgically induced version of the
naturally occurring disease keratoconus.
The plaintiff’s expert testified that ectasia
is a very serious long-term complication of
LASIK which may cause progressive
myopia and effects similar to irregular
astigmatism, such as ghosting and other
distortions with fluctuating vision. The
plaintiff contended that his condition of
thin corneas made him an inappropriate
candidate for the LASIK procedure and
that the defendant was negligent in
proceeding with the surgery. The plaintiff
was diagnosed with ectasia following the
surgery and argued that he should have
been informed by the defendant that he
had thin corneas, which placed him at a
higher risk of developing the complication.
The plaintiff’s physician testified that
ectasia is a non-curable condition, and that
the plaintiff’s only option may be a corneal
transplant. The plaintiff’s complaints
included very poor vision in one eye,
inability to drive at night and difficulty
reading numbers on a computer.
The defendants contended that the
plaintiff was fully informed of the risk of
theLASIKsurgeryandsignedastandard
form that which is given to all patients. The
defendant’s expert testified that ectasia is a
complication of LASIK which occurs in a
statically small number of patients and did
not result from any action or inaction on
the part of the defendant. The defendant’s
expert testified that there is no definitive
answer as to how thick a cornea must be in
order to successfully undergo LASIK
surgery. The defense contended that the
plaintiff’s corneas were not so abnormally
thin as to place him in the high risk
category.
Thejuryfoundthatthedefendant
performed the LASIK surgery without the
plaintiff’s informed consent. The jury
found for the defendant on the negligence
count. The plaintiff was awarded $875,000
in damages. The plaintiff’s motion for delay
damages was granted and brought the
recovery to $952,891. The defendant has
filed a notice of appeal.
18 Healthcare Liability Review

MEDICAL LIABILITY ANALYSIS
This medical malpractice action
highlighted the performance of growingly
popular LASIK surgery and one of its
known complications called ectasia. FDA
websites estimate the rate of ectasia after
LASIK surgery to be about one in 2,000,
but cautions that this number could be
underestimated due to underreporting and
lack of long-term follow-up. Interestingly,
the plaintiff won the case on the basis of
lack of lack of informed consent, a fertile
area of litigation in elective surgery.
It was the plaintiff’s position that a
person must be informed of the particular
circumstances and conditions that they
have before surgery, in this case abnormally
thin corneas, so that they can fully
understand the risks of the procedure. The
plaintiff’s medical evidence showed that
thin corneas clearly increase risk of the
development of ectasia. Motions in limine
precluded any defense references to the fact
the defendant successfully treated the well
known golf professional, Tiger Woods, or
any other character evidence not disclosed
on the defendant’s curriculum vitae or in
his deposition testimony. The defendant
was also precluded from making references
to the defendant’s high success rate in other
dissimilar cases.
The plaintiff sought to portray the
defendant as a very busy, specialized and
successful surgeon who did not give the
plaintiff the special attention he needed.
Evidence showed that the defendant flew
from Maryland to Pittsburgh to operate on
35 patients (70 eyes) in a single day, earned
approximately $35,000 per day and then
flew back home. The plaintiff’s $875,000
damage award was increased by delay
damages, as well as an undisclosed sum
from two settling defendants, boosting the
total recovery to more than $1 million.
RISK MANAGEMENT ADVISORY
Medical Malpractice Review
In this failure of informed consent
case, practitioners are indeed reminded
that not all informed consents
to a particular surgical intervention
are routinely uniform. In situations
such as in this case, where the patient
has a pre-existing condition which
could contribute to an increased risk
to a particular surgical intervention,
the practitioner involved has the duty
in conformance with acceptable standards
to advise the patient of that increased
risk by virtue of the pre-existing
condition in a specially addressed
informed consent to that issue.
In situations where there exists a
pre-existing condition to any surgical
intervention which renders the patient
more susceptible to a particular
complication, perhaps unique to that
pre-existing condition, the practitioner
involved cannot in conformity with
acceptable standards of informed
consent simply rely in these situations
on a routine standard informed consent
form. Rather, in order to fairly
and adequately apprise the patient of
the risks involved, a practitioner has
the duty to address the particular
complication or pre-existing conditions
that the patient has which
makes him more susceptible to the
occurrence of a complication in the
informed consent procedure. Failure
to do so could invalidate the routine
regular standard informed consent
and render the practitioner responsible
for damages if, in fact, that particular
event dealing with the
increased exposure due to the pre-existing
condition occurs.
Furthermore, in situations where the
complication to a particular surgical
intervention, or the increased risk of a
complication can be discernible by a
reasonable examination normally and
regularly performed prior to the institution
of surgery, the failure to act in
accordance with the existence of that
pre-existing condition cannot be excused
on the basis of the fact that the
practitioner was unaware of that condition
when he instituted the surgical
intervention.
An additional aspect of this case was
the defense of a known complication
to the particular surgical intervention
that can and does occur in the absence
of deviation by the very nature
of the procedure itself. However, this
defense cannot apply in a situation
where the patient in a reasonable examination
exhibited signs and symptoms
of a tendency to incur that
complication in the surgical intervention
involved. Under these conditions,
the defense of a known complication
would not be applicable to avoid liability
for having proceeded with the
procedure, particularly in the absence
of informing the patient of the potential
for that particular situation developing.
Practitioners should take note that
the validity of an informed consent to
any particular surgical intervention or
procedure is not necessarily uniform
from patient to patient and can, in
fact, require additional notification to
the patient under special circumstances,
as was the situation in this
case where the patient, through routine
reasonable examination, reveals
the potential for the occurrence of a
complication because of a unique
pre-existing condition. In that event,
the patient should be advised of the
potential for such an occurrence in
the informed consent. The failure to
do so can invalidate the informed
consent which otherwise is routinely
obtained without specifically addressing
the unique or unusual circumstances
rendering the patient more
susceptible to the occurrence of a
particular complication.
Practitioners are also reminded by
this case that the defense of a known
complication to any particular procedure
implies that the procedure was
performed without deviation from acceptable
standards of practice.
Where there exists a deviation, as was
found in this case in the failure to adequately
inform the patient for the
potential for the occurrence of a
known complication, then the practitioner
can be responsible for the injury
sustained as a result of the
occurrence of that complication.
Practitioners would do well to remember
that the occurrence of a
known complication to any particular
procedure that can and does occur in
the absence of deviation is not a defense
where that complication occurs
as a result of a deviation from acceptable
standards of practice. Further,
the failure to so inform the patient of
the potential for the occurrence of
that known complication can be a deviation
from acceptable standards of
practice which can incur liability even
if the complication is known and otherwise
acceptable.
Volume 1, Issue 2, February 2010 19

Medical Malpractice Review
EXPERTS
Plaintiff’s ophthalmologist experts:
Michael S. Insler from New Orleans, LA
and Francis Mah (treating) from Pittsburgh,
PA.
REFERENCE
Allegheny County, PA. Cantalupo vs.
TLC - The Laser Center, et al. Case no.
G.D. 06-7982; Judge Paul F. Lutty, Jr.
Attorneys for plaintiff: Alan H. Perer and
Brian W. DelVecchio of Swensen, Perer &
Kontos in Pittsburgh, PA. Attorney for
defendant: James A. Wood of Matis, Baum,
Rizza & O’Connor in Pittsburgh, PA.
$800,000 VERDICT - PRIMARY CARE NEGLIGENCE -
FAILURE TO PROPERLY MONITOR DECEDENT TAKING
COUMADIN - MASSIVE INTRACRANIAL HEMORRHAGE -
WRONGFUL DEATH.
CASE SUMMARY
The female decedent, 56 years of age at
her death, was treated by the defendant
primary care physician. Due to a history
of deep vein thrombosis and a heart
condition, the decedent was on
Coumadin, a blood thinner. The
defendant was responsible for regular
monitoring of the decedent’s blood’s
ability to clot by virtue of a test called
INR. The plaintiff alleged that the
defendant failed to properly monitor the
decedent and as a result her blood
became too thin. The decedent was
susceptible to uncontrolled bleeding and
her blood was depleted of its clotting
factors.
CASE DETAILS
On November 18, 2005, the decedent
grazed her ear while being helped out of
her wheelchair and into a car. The next
morning, she became unresponsive and was
taken by ambulance to the hospital. INR
tests performed at the hospital found
results of 12.29. The target range is between
2 and 3. A CT-scan disclosed that the
decedent had suffered a massive intracranial
hemorrhage which caused herniation of her
brain. She remained in a coma until her
death on November 22nd, several days
later.
The plaintiff brought suit against the
defendant, alleging that the defendant was
negligent in failing to monitor the
decedent’s Coumadin levels via the INR
testing. The plaintiff maintained that the
decedent’s injuries were a direct result of
this negligence.
The defendant denied the allegations.
The defendant argued that the decedent
suffered from a multitude of serious health
problems, including a rare blood cancer,
which caused her to be wheelchair bound
and would have significantly limited her life
expectancy. The defendant ultimately
admitted liability, but disputed the nature
and extent of the plaintiff’s damages.
At the conclusion of the trial, the jury
deliberated and found in favor of the
plaintiff.Thejuryawardedthesumof
$800,000 in damages.
MEDICAL LIABILITY ANALYSIS
The decedent suffered from health
problems which significantly impacted her
life expectancy. In late 2004, the decedent’s
cardiac condition resulted in multiple
hospital visits. She was hospitalized in May
2005, and at that time doctors confirmed a
prior heart attack, coronary artery disease,
congestive heart failure and atrial
fibrillation. Testing revealed an ejection
fraction of 25% which showed a
significantly reduced capacity for her heart
to pump. She underwent bypass surgery
and a defibrillator was inserted.
The decedent also suffered from
plasmacytoma, a rare blood cancer that
originates from plasma cells in the bone
marrow.Inthemajorityofcases,thistype
of blood cancer progresses to a fatal cancer
called multiple myeloma. She was originally
diagnosed in 1988 with a solitary tumor on
her lower back. The tumor was removed in
1989. She underwent radiation and physical
therapy and was relatively cancer free until
late 2002, early 2003, when another tumor
emerged in the same location. She received
two years of chemotherapy. However, by
2005, the tumor grew to a size that caused
pressure on her nerves in her spine, causing
her back and leg pain as well as leg
weakness. She was wheelchair bound as a
result in early 2005.
On July 29, 2005 the decedent underwent
surgery to remove the tumor, but all of the
tumor could not be removed. Due to
life-threatening complications, she was
hospitalized 85 days and underwent a
second surgery to stabilize her spine on
September 15, 2005. She was discharged
from the hospital on October 21st and was
under the care of visiting nurses and the
defendant. It was during this time that the
failure to monitor her INR occurred.
The defendant admitted liability
approximately three weeks prior to trial.
However, the defendant, through his
expert, alleged that the decedent had a
minimal life expectancy of only three years
due to her medical conditions. The
defendant argued that the decedent would
have lived a life where she was under heavy
sedation for pain and would have
succumbed to her cancer and its side
effects. While the decedent was married for
37 years and had four adult children and
grandchildren, it was unlikely that she
would have been able to provide any
support for her family as a result of her
other medical conditions if the cerebral
bleed had not occurred. The plaintiff
maintained that the decedent had a life
expectancy of five years, but both sides
agreed that the decedent would have
endured great pain, been wheelchair bound
and under heavy sedation during those
remaining years.
RISK MANAGEMENT ADVISORY
The evidence in this case indicated
that due to a history of deep vein
thrombosis as well as a heart condition,
the decedent was on Coumadin,
a blood thinner. The defendant was
responsible for regular monitoring of
the decedent’s blood’s ability to clot
by virtue of an INR test. The plaintiff
alleged that the defendant negligently
failed to properly monitor the decedent
and, as a result, her blood became
too thin. The decedent at that
point was susceptible to uncontrolled
bleeding and her blood becoming de-
20 Healthcare Liability Review

pleted of its clotting factor. As a result
of these allegations, the plaintiff
succumbed. The suit basically alleged
that the defendant’s failure to monitor
the decedent’s Coumadin levels
via the INR test was a direct cause of
the decedent’s injuries and ultimate
death. The evidence also indicated
that the tests performed at the hospital
where the decedent was admitted
found the results of the INR test to be
12.29, where the target range was
conceded to be between 2 and 3. The
result of a CT scan initiated at the
time of the hospitalization indicated
that the decedent had suffered a
massive intracranial hemorrhage
which, in turn, caused herniation of
her brain. She remained in a coma
until her death on November 22, several
days later.
The primary care physician in this
case advisedly admitted liability, resulting
in the trial proceeding only on
the basis of damages and the extent
of injury without any proofs whatsoever
as to negligence or deviation on
the part of the accused primary care
physician. The resulting jury verdict
on damages was $800,000 for the
death of a reasonably young decedent
of 56 years of age, but who was already
seriously impaired from a multitude
of health problems, including a
rare blood cancer which rendered her
wheelchair bound and which would
have significantly limited her life expectancy.
This case stands out as an example of
the benefits that may be accrued to
an accused practitioner when he or
she admits liability when liability is
clear and then defends on the issue of
damages alone. Practitioners are
again reminded by this case that in
Medical Malpractice Review
situations where liability appears
clear and is practically not defensible,
then the damages that may be
awarded to a plaintiff for injury sustained
from that deviation may well
be limited by the plaintiff’s own unrelated
impaired state of health in a
number of regards that undoubtedly
would have limited their life expectancy
in any event, even absent the
particular deviation from acceptable
standards of care alleged. By admitting
liability and proceeding on the
extent and nature of the injuries involved,
an accused physician can avoid
evidence being presented at trial of
what might appear to be a relatively
serious deviation that in itself might
have incite a lay jury to render a significantly
more sizable award.
The trial in this case, therefore, proceeded
on the far less emotionally
charged issue of an evaluation of the
damages or injuries sustained that
were not related to the decedent’s
multitude of pre-existing conditions
that had already, even before this deviation,
impaired her life expectancy,
in accordance with the plaintiff’s expert
to be five years and in accordance
with the defendant’s expert to
be estimated at three years. The
damages in this death case were extremely
limited primarily because the
decedent was impaired with so many
conditions prior to the deviation involved
and the evidence indicating
that had there been no deviation, her
enjoyment of life was already severely
impaired and her life expectancy was
significantly diminished by the unrelated
pre-existing conditions.
In this case, the fact that liability was
admitted and, therefore, was a
non-issue, precluded the jury from
hearing the details of the alleged neglect,
which could have contributed
to a significantly larger award at the
hands of the lay jury and their inherent
tendency in clear deviation cases
to want to punish the defendant physician
for what they may perceive to
be serious misconduct resulting in injury
to the patient. All of that potential
emotional response by the lay jury
sitting in judgment of this case was
avoided by conceding liability and
proceeding on a fair, impartial, and
unemotional examination of the extent
of injury and deprivation of prolongation
of life in accordance with
the strict rules presented by the judge
for dispassionately evaluating these
injuries and damages. In this regard,
the jury was tasked with taking into
account the patient’s already seriously
impaired medical condition as
well as her very limited life expectancy.
Defense counsel’s decision to
concede liability was ultimately vindicated
by the somewhat limited, and
at the same time fair, verdict of
$800,000 awarded by the jury after
they evaluated the restricted and limited
injuries and should be considered
in situations such as prevailed in this
case.
EXPERTS
Plaintiff’s medical experts: Joseph
Weinstein, M.D. from Brockton, MA and
Josel Schwartz, M.D. from Peabody, MA.
Defendant’s medical expert: Chris Elaine
Holmes, M.D. from Burlington, VT.
REFERENCE
Franklin County, VT. Stone vs. Dr. N.
Case no. S464-07Fc; Judge Geoffrey W.
Crawford. Attorney for plaintiff:
Christopher J. Maley of Sylvester & Maley
in Burlington, VT.
Volume 1, Issue 2, February 2010 21

Medical Malpractice Review
DEFENDANTS’ VERDICT - EMERGENCY DEPARTMENT
NEGLIGENCE - ALLEGED FAILURE TO DIAGNOSE MEDIAL
NERVE LACERATION FOLLOWING PALM LACERATION TO
MINOR PLAINTIFF.
CASE SUMMARY
This was a medical malpractice action
brought against an emergency department
physician, the hospital where the minor
plaintiff was treated and a family
physician who performed follow-up care.
The plaintiff claimed that the defendant
doctors negligently failed to timely
diagnose and treat a median nerve
laceration following a palm laceration.
The defendants argued that they
confirmed normal sensation and strength
in the injured hand and therefore,
reasonably concluded that there was no
nerve damage.
CASE DETAILS
The minor plaintiff was a 14-year-old boy
at the time of injury on June 22, 2004. He
testified that he was riding bicycles with his
friends in the woods and was running to
see another rider go over a jump. The
plaintiff claimed that he tripped over
branches and fell while carrying a glass
bottle, causing a laceration to his palm.
The plaintiff presented to the emergency
room of the defendant hospital and the
palm laceration was sutured by the
defendant emergency room physician. The
minor plaintiff was instructed to follow-up
in two to three days with his family
physician and saw the defendant family
physician several days later. The plaintiff
saw the defendant family physician again,
approximately ten days later.
The plaintiff alleged that he told both
defendant physicians that his hand did not
feel normal and that he had lost strength
and feeling and could not use his dominant
right hand. The plaintiff claimed that the
defendant family physician told him not to
“baby” the hand and to use it as much as
he could. By the end of the summer, the
plaintiff contended that he still did not have
normal strength or feeling in the injured
hand. He went to a hand surgeon who
diagnosed a complete laceration of the
median nerve. The plaintiff claimed that the
delay in diagnosis and repair of the nerve
injury reduced his chance of successful
treatment. EEG results showed a
permanent partial loss of hand function,
according to the plaintiff’s expert.
The defendant emergency room
physician testified that he examined the
plaintiff’s hand thoroughly at the hospital to
confirm that his sensation and strength
were intact. The defendant family physician
testified similarly and pointed to his medical
record which documented that the
plaintiff’s right hand sensation and strength
were normal at the time of his
examinations. The defense contended that
the plaintiff’s injury may have increased
from an initial partial tear to a complete tear
of the median nerve.
The defendant also argued that such an
injury to a 14-year-old boy has a repair
window of at least six months. Accordingly,
the defense argued that there were no
damages to the plaintiff as a result of the
alleged delay in diagnosis. The defense
contended that the plaintiff had a good
surgical result.
The jury found no negligence on the part
of any defendant.
RISK MANAGEMENT ADVISORY
In this case, both the emergency
room physician and the defendant
family physician who treated this patient
were exonerated from any liability
by the jury. The defendant
emergency room physician testified
that he examined the patient’s hand
thoroughly at the hospital to confirm
that his sensation and strength were
intact. This required examination and
the results of that examination were
entered into the record contemporaneous
with the event in question in
some detail. Also, the defendant family
physician who saw this patient
within a matter of days of the emergency
room physician testified similarly
and pointed to his medical
records which clearly and unequivocally
documented an examination in
May and the fact that the patient’s
right hand sensation and strength
were normal at the time of his examination.
An important aspect of this case
which lead to the verdict in favor of
both defendant physicians was the
fact that both physicians entered
their examinations and conclusions,
which were reasonable under the circumstances
at the time, thoroughly
within their records. These notations
not only included the results of their
examination, but also some of the elements
of what were involved in the
examinations, indicating a thoroughness
that both physicians expressed
within their records and leading to
the conclusion that the patient’s hand
sensation and strength were normal
at the time of their examinations. The
no cause for action in this case can in
a large degree be attributed to the
thoroughness of these notations made
within the record by both physicians
and, in addition, to the fact that both
of the accused physicians’ testimonies
coincided and did not contradict each
other.
Practitioners are again reminded by
this case of several important elements
in avoiding liability. The initial
consideration in this regard is that the
records of both physicians were thorough,
complete, detailed and substantially
supported not only their
position, but the position of the other
accused physician in the case by substantially
reaching the same independent
conclusions
contemporaneous with the events in
question. Further, the consistency of
the testimony as to the nature and
extent of the early findings in the case
by both physicians could not help but
reinforce the defense of both accused
physicians because their testimony
was duly recorded and seemed to coincide
with each other’s conclusions
and observations made at the time as
reflected in the records.
22 Healthcare Liability Review

Medical Malpractice by Specialty
Practitioners should take note that in
situations where two physicians are
both accused, the fact that their testimony
does not contradict each other
and seems to coincide and support
the other’s conclusions and findings
can well be an important element in
the defense of both physicians and,
whenever possible, should be emphasized
in any defense where the two
physicians are jointly accused of deviation
in the treatment of a patient in
a medical malpractice litigation.
Where two independent physicians
are accused of having deviated from
acceptable standards of practice to
the detriment of a patient for treatment
being rendered at different
times for the same injury, whenever
possible, the attorneys defending the
action should make a concerted effort
to determine the scope and nature of
the anticipated testimony by each of
the defendant physicians so as to,
whenever possible and consistent with
the truth, conform that testimony in
order to avoid inconsistent testimony
that might be given by each of the
two defendants, through failure of
memory or for any other reason, that
could be harmful to each of the defendant
physicians in the case.
In this regard, practitioners are once
again reminded that testimony inconsistent
with the position of the other
individual accused physician by co-defendants
in a malpractice litigation
can be utilized by plaintiff’s counsel
and expert(s) to effectively impair the
credibility not only of each of the defendants
through these cross-accusations,
but can also impair the
credibility of the entire defense posture
and should, whenever possible
consistent with the truth of what actually
occurred, be avoided by careful
preparation and honest attempts to
reconstruct what may have occurred
in the particular alleged malpractice
situation to the benefit of both accused
physicians in the case.
In this case, the given testimony by
both accused physicians supported
each other’s position, which support
was substantiated by thorough, complete
entries within their respective
medical records indicating similar
conclusions which, in turn, supported
both of their positions in defense of
the case and substantiated each of
the individual conclusions being rendered
at the time of the alleged deviation.
There can be little doubt in this
case that the completeness, thoroughness
and timeliness of these joint
entries being made by two independent
physicians substantially reaching
the same conclusions was the material
contributing factor to a successful
defense verdict for both physicians.
REFERENCE
Delaware County, PA. Doud vs. Taylor
Hospital, et al. Case no. 06-8557; Judge
Kathrynann W. Durham. Attorney for
plaintiff: Richard Heleniak of Messa &
Associates in Conshohocken, PA. Attorney
for defendant emergency room and
hospital: Kenneth J. Powell of, Jr. of Marks,
O’Neill, O’Brien & Courtney in
Philadelphia, PA. Attorney for defendant
family physician: Paul C. Troy of Kane,
Pugh, Knoell, Troy & Kramer in
Norristown, PA.
Medical Malpractice by Specialty
Dental
DEFENDANT’S VERDICT - Prosthodontic negligence -
Negligent installation of bridgework - Headaches -
Aggravation of preexisting TMJ.
In this matter, the plaintiff alleged that
the prosthodontist was negligent in the
installation of a bridge which caused the
plaintiff to suffer headaches and an
aggravation of a preexisting TMJ
problem. The defendant denied the
allegations of negligence and maintained
that there was no breach of the standard
of care.
The female plaintiff, age 52, treated with
the defendant prosthodontist. She had a
history of unstable teeth. The defendant
installedanupperarchbridgeinthe
plaintiff’s mouth in 2003. The plaintiff
alleged that following the installation of the
bridge, she experienced headaches and an
aggravation of her preexisting TMJ
problem. She also alleged that her jaw was
forced backward by the installation of the
bridge. The plaintiff sought the services of
another dentist who repaired the bridge.
The plaintiff still complains of unceasing
pain.
The plaintiff brought suit against the
defendant, alleging negligence. The
defendant denied the allegations and
maintained that the bridge was properly
installed and there was no deviation from
any standard of care.
At the conclusion of the trial, the jury
returned its verdict in favor of the
defendant and against the plaintiff. This
was the second trial, during the first trial, a
mistrial was declared by the trial judge.
EXPERTS
Plaintiff’s dental expert: Barry
Gibberman D.M.D. from Cincinnati, OH.
Defendant’s dental expert: Brent Haeberle,
D.M.D. from Louisville, KY.
REFERENCE
Jefferson County, KY. Patten vs. Dr. P.,
DDS. Case no. 05-8182; Judge Gibson,
2-9-09. Attorney for plaintiff: Allen McKee
Dodd of Dodd & Dodd in Louisville, KY.
Attorney for defendant: Christopher P.
O’Bryan of O’Bryan, Brown & Toner in
Louisville, KY.
Volume 1, Issue 2, February 2010 23

Medical Malpractice by Specialty
Emergency Department
DEFENDANT’S VERDICT - Failure to diagnose stroke in
15-year-old female.
In this matter, the plaintiff alleged that
the defendant emergency room doctor
failed to diagnose a stroke in the
15-year-old female plaintiff who
presented to the emergency room after
falling down stairs at her home. The
defendant denied the allegations and
disputed that there was any deviation
from acceptable standards of care in the
treatment of the plaintiff.
The 15-year-old female plaintiff
presented to the emergency room and the
defendant on December 27, 2005, after she
complained that she fell down the stairs at
her house and then experienced arm pain.
The defendant performed a CT-scan which
was normal and released the child with
instructions to follow-up with her family
doctor. The plaintiff returned to a different
hospital less than one day later with
continued and worsening complaints. She
was diagnosed at that time with ischemic
stroke.
The plaintiff alleged that she sustained
physical and cognitive delays as a result of
the delay in diagnosis. The plaintiff brought
suit against the defendant, alleging that the
defendant was negligent in failing to
diagnose the plaintiff’s stroke. The plaintiff
alleged that the defendant should have
administered an MRI and kept the child
overnight for observation.
The defendant denied the allegations and
maintained that there was no deviation
from acceptable standards of care. The
defendant maintained that the plaintiff
failed to demonstrate any symptoms or
complaints which would indicate stroke,
especially in a 15-year-old. The defendant
further argued that any injuries from the
stroke had already occurred prior to her
coming to the hospital and were not the
result of any action or omission on the part
of the defendant.
The matter proceeded to trial. The jury
returned its verdict in favor of the
defendant and against the plaintiff. Post
trial motions were pending.
EXPERTS
Plaintiff’s neurology expert: Seemant
Chatuverdi, M.D. from Detroit, MI.
Defendant’s ER expert: Bruce Janiak, M.D.
from Augusta, GA. Defendant’s neurology
expert: Kenneth Gaines, M.D. from New
Orleans, LA. Defendant’s radiology expert:
Dennis Whalley, M.D. from Louisville, KY.
REFERENCE
ShelbyCounty,KY.Mayvs.Dr.W.Case
no. 06-0440; Judge Hickman, 3-13-09.
Attorneys for defendant: Scott W.
Whonsetler and Robert Ott of Whonsetler
& Johnson in Louisville, KY.
Hospital Negligence
$2,060,000 RECOVERY - Negligent credentialing and
supervision - Wrongful death of woman following
transabdominal laparoscopic cyroablation.
In this matter, the plaintiff alleged that
the defendant hospital was negligent in
permitting the surgeons to perform a
procedure which neither had performed
before without properly supervising and
credentialing the surgeons. The defendant
denied the allegations.
The female decedent underwent a
procedure at the defendant hospital called a
transabdominal laparoscopic cyroablation
to freeze a lesion located on her kidney.
The decedent’s doctors suspected that the
lesion was cancerous, although tests did not
confirm that she had cancer. The plaintiff
alleged that neither of the surgeons who
performed the procedure had ever
performed that procedure before operating
on the decedent. During the surgery, the
surgeons perforated the decedent’s
stomach and she later died as a result of the
infection that developed.
The plaintiff alleged that the defendant
surgeons were negligent and that the
hospital was negligent for failing to properly
credential and supervision the surgeons.
The plaintiff also alleged that the surgeons
and the hospital failed to inform the
plaintiff that the doctors had never
performed the procedure before and
therefore, they did not have informed
consent from the decedent.
The defendants denied the allegations.
The defendant hospital maintained that in
lieu of peer review, it held public meetings.
The defendants agreed to permit judgment
in the amount of $2,060,000 to be entered
against the hospital in favor of the plaintiff.
The plaintiff had settled with the surgeons
in a confidential settlement prior to this
matter.
EXPERTS
Plaintiff’s surgical expert: John Edoga,
M.D. from Morristown, NJ. Plaintiff’s
hospital administration expert: Arthur
Shorr from Woodland Hills, CA.
Defendant’s hospital administration expert:
Lynn Buchanan from TX.
REFERENCE
Brooke County, West Virginia. Haught
vs. Weirton Medical Center. Case no.
07-C-41; Judge Arthur M. Recht, 5-12-09.
Attorneys for plaintiff: Christopher Regan
and Geoffrey Brown of Bordas & Bordas
in Wheeling, WV. Attorney for defendant:
James J. D’Ambrose in Brockton, MA.
24 Healthcare Liability Review

Medical Malpractice by Specialty
DEFENDANT’S VERDICT - Alleged negligent failure to
prevent suicide - Alleged failure to admit patient, a police
officer, who presents with complaints of severe anxiety and
advises that he had previously secured his weapons because of
his concerns.
The plaintiff contended that when the
39-year-old police officer presented to the
emergency room with complaints of
severe anxiety and advised the triage
nurse, his sister-in-law, that he had
secured both his personal and department
guns because of work pressures and other
causes of anxiety, the patient should have
been admitted. The triage nurse
contended that she so told the other
defendants who denied being so advised.
The defendants maintained that
irrespective of this factor, admission was
not justified. The defendants established
that the decedent had denied suicidal intent
both that day at the hospital and the
following day during a phone call between
him and the hospital staff.
The jury found for the defendants.
EXPERTS
Plaintiff’s psychiatrist expert: Steven A.
Fayer from New York, NY. Defendants’
psychiatrist expert: John O’Brien from
Philadelphia, PA.
REFERENCE
Morris County, NJ. Cillo vs. Morristown
Memorial Hospital, et al. Docket no.
MRS-L-2492-05; Judge W. Hunt Dumont,
9-09. Attorney for mental health
professional and psychiatrist: Michael S.
Bubb of Bubb, Grogan & Cocca, LLP in
Morristown, NJ. Attorney for defendant
triage nurse: Kenneth J. Fost in Bloomfield,
NJ.
Nursing Home Negligence
$350,000 RECOVERY - Failure to develop and implement
decubitus ulcer plan despite assessed risk upon admission -
Defendant’s negligence allegedly substantial factor in death of
patient.
The plaintiff contended that upon her
admission to the defendant nursing home
on June 15th, the patient was identified as
being at risk for the development of
pressure ulcers. The plaintiff maintained
that despite her known risk, the defendant
nursing home staff failed to develop and
implement a care plan to address this risk
until March, well after the decedent had
developed serious pressure ulcers on her
back and sacrum.
The records reflected that pressure ulcers
were first noticed were first noted prior to a
hospitalization in February of 2006. The
plaintiff asserted that the nursing home
continuously violated the standard of care
and nursing home policies and procedures
by failing to develop and implement a plan
of care to prevent these ulcers from
worsening. The plaintiff contended that it
was not until March 2006 that the nursing
home staff developed a care plan to address
the decedent’s worsening pressure ulcers.
On March 18th, the ulcer on the decedent’s
back was documented as a Stage III and a
sacral ulcer was documented as a Stage II.
The plaintiff maintained that between
March 18th and April 6th, her pressure
ulcers continued to worsen. On April 6th
when she was hospitalized again, her sacral
ulcer was unable to be staged and her back
ulcer had progressed to a Stage IV.
The plaintiff contended that the decedent
was also malnourished, dehydrated and had
a MRSA infection. The plaintiff asserted
that these injuries, along with the
deterioration in her physical and mental
condition, contributed to cause her death
on November 27, 2006. The plaintiff
maintained that the pain and suffering
during the approximate ten month stay was
severe.
Thecasesettledpriortotrialfor
$350,000
REFERENCE
Cook County, Illinois. Case information
withheld. Case no. 2007 L 003778; 9-09.
Attorneys for plaintiff: Steven M. Levin
and Michael Bonamarte of Levin &
Perconti in Chicago, IL.
Volume 1, Issue 2, February 2010 25

Medical Malpractice by Specialty
Ob/Gyn
$4,230,000 VERDICT - University Center for Reproductive
Health negligence - Theft of eggs, lack of consent for egg
transfers and misappropriation of eggs resulting in live births.
This settlement resulted from a series of
twelve cases brought by plaintiffs who
had received treatment at the UCI Center
for Reproductive Health at either Garden
Grove Medical Center in Garden Grove,
CA or Saddleback Memorial Medical
Center in Laguna Hills, CA between 1987
and 1994. The plaintiffs brought suit
against the defendant board of regents
who recruited two physicians to direct the
center for reproductive health, alleging
the physicians misused human embryos
with prohibited egg transfers and
misappropriation of biologic material.
These cases were brought in 2003, years
after the plaintiffs had received treatment
at the reproductive health center and
years after the actions of the physicians
went public, and the defendants
therefore, contended the cases were
barred by the statute of limitations.
In 1986, the UCI College of Medicine
and American Medical International
recruited the two physicians from the
University of Texas, San Antonio Medical
Center, and the center was operated by
them with minimal oversight from UCI and
medical center administrators until the
center was closed in 1995 by a university
official.
Evidence that the physicians took human
eggs without consent, fertilized them and
transferred the embryos went undisputed
by the defendants as the first round of
litigation ensued. The defendants
contended they could not be held
vicariously responsible for the renegade
actions of the physicians. Yet, in 1999, the
defendants resolved approximately 125
cases for more than $20,000,000. An
additional 38 cases were resolved for a
waiver of costs or nominal settlement
payments.
The next round of litigation, which began
as 18 additional cases, included the 12
resolved in this series of cases. The
plaintiffs presented documentation of
misappropriation of eggs, some resulting in
live births and some involving eggs which
went unaccounted for. The plaintiffs
claimed they did not know they may have
been victims because they were never
contacted by the university and made aware
of the problems at the center. In these
cases, the defendants claimed that because
of the tremendous amount of publicity
which arose from the first round of
litigation in the later 1990s, they plaintiffs
most certainly had knowledge that
something at the clinic may have been
amiss, and therefore, the statute of
limitations had been running and had, in
fact, expired years before. The defendants
argued they did their best to contact
patients with the limited records that
remained from the clinic.
The defendants demurred to the
complaint on statute of limitations grounds,
which was sustained without leave by the
judge. The plaintiffs appealed and the
decision of liability was reversed by the
Fourth District Court of Appeal on the
grounds that constructive suspicion based
on publicity alone was insufficient to trigger
the statute of limitations. The two parties
then engaged in a series of five mediations
and settled for amounts ranging from
$45,000 to $675,000, for a total of
$4,230,000.
REFERENCE
Orange County, California. Debra Ann
Beasley and John Kent vs. Regents of the
University of California. (Multiple related
actions).Attorney for plaintiff: Daniel M.
Hodes of Hodes Milman, LLP in Los
Angeles, CA. Attorneys for plaintiffs:
Steven Heimberg of Heimberg Law
Group, LLP in Los Angeles, CA and Mark
Bush, Esq. of Legion Counsel, LLP in
Southern California, CA. Attorneys for
defendant: Byron Beam, Esq. and Louise
Douvill, Esq. of Beam, Brobeck, West,
Borges & Rosa, LLP in Newport Beach,
CA.
Ophthalmology
DEFENDANT’S VERDICT - Alleged failure to advise plaintiff to
seek immediate medical treatment for eye symptoms - Eye
infection - Retinal detachment - Loss of vision in one eye.
The plaintiff alleged that the defendant,
an ophthalmological surgeon, was
negligent in failing to advise the plaintiff
to seek immediate medical treatment
when the plaintiff complained of eye
symptoms. The defendant argued that he
advised the plaintiff to present to the
hospital immediately, but the plaintiff did
not follow his instructions. Wills Eye
Hospital, where the plaintiff was treated,
was also named as a defendant in the case
on a vicarious liability theory.
The plaintiff was a 50-year-old man when
a piece of metal entered his eye while he
was working on a lawn mower. The
plaintiff presented to the defendant, Wills
EyeHospital,wherehecameunderthe
care of the defendant ophthalmological
surgeon. The defendant removed the
foreign object from the plaintiff’s eye and
gave the plaintiff instructions for follow-up
treatment.
The plaintiff testified that the day after
his injury, he called the defendant doctor
and complained of eye pain. The defendant
was attending a seminar in San Diego,
California at the time he received the
plaintiff’s call on his cell phone. The
plaintiff testified that the defendant told
him he could go to the emergency if he
wanted to, but that there was no urgency.
The plaintiff presented to the hospital
approximately 11 hours after speaking with
26 Healthcare Liability Review

Medical Malpractice by Specialty
the defendant. He was treated for infection
which ultimately resulted in a retinal
detachment.
The plaintiff is legally blind in one eye as
a result of the retinal detachment. The
plaintiff claimed that immediate treatment
would have avoided the retinal detachment
and that the defendant was negligent in
failing to advise him to seek immediate
treatment.
The defendant physician testified that he
advised the plaintiff, during the cell phone
conversation in question, to go to Wills Eye
Hospital immediately. The defense argued
that the defendant doctor had spoken with
the plaintiff earlier in the day and advised
Orthopedic Surgery
the plaintiff to go to the local community
hospital emergency room immediately for
tingling sensations in his chin. However,
the plaintiff did not present to the local
emergency room on the prior occasion for
approximately 1.5 hours after speaking with
the defendant, even though he lived only
ten minutes away. The defense argued that
the plaintiff’s earlier actions indicated that
he was not compliant to the defendant’s
instructions. The defense also contended
that earlier treatment for the plaintiff’s eye
infection would not have prevented the
ultimate retinal detachment which
occurred.
Thejuryfoundthatthedefendant
physician was not negligent.
REFERENCE
Philadelphia County, PA . Bartholomew
vs. Dr. M., et al. Case no. 07-04-04227;
Judge Paul Panepinto, 6-19-09. Attorney
for plaintiff: Thomas Duffy of Duffy &
Partners in Philadelphia, PA. Attorney for
defendant Maguire: Daniel J. Sherry of
Marshall, Dennehey, Warner, Coleman &
GoggininKingofPrussia,PA.Attorney
for defendant, Wills Eye Hospital: Robert
Britton of Post & Schell in Philadelphia,
PA.
DEFENDANT’S VERDICT - Inappropriately sized tibial base
plate allegedly inserted in knee replacement surgery - Total
knee revision to remove and replace plate.
On February 3, 2004, the defendant
orthopedic surgeon performed a total
replacement surgery on the 39-year-old
female plaintiff. The surgery was required
due to severe arthritis that developed
secondary to a workplace accident the
plaintiff was in 1999. The plaintiff alleged
that the defendant committed medical
malpractice by inserting a tibial base plate
that was a full two sizes larger than was
appropriate and that as a result there was
a severe overhang. The plaintiff further
alleged that during the two years that the
defendant continued to treat the plaintiff,
the defendant concealed the error in spite
of the plaintiff’s reported complaints of
severe pain and clicking and popping of
her knee. The defendant argued that the
components used in the knee
replacement, including the tibial base
plate, were appropriate and properly sized
and that the plaintiff’s complaints arose
from an accident the plaintiff was
subsequently involved in one year after
the 2004 surgery.
On March 20, 2006, a nonparty
orthopedic surgeon performed a total knee
revision. He stated in his operating report
and testified at trial that the tibial base plate
was two sizes too large. The defense expert
orthopedic surgeon opined that there were
no departures, that the components were
properly sized and that the plaintiff’s
subsequent accident caused the onset of
her symptoms.
Initially, the plaintiff demanded $750,000
of the jury; during the trial, the plaintiff
demanded $650,000. No offers of
settlement were made. After a ten day trial
and after the jury deliberated for between
two and three hours, the jury of three men
and three women returned a defense
verdict, finding no departures.
EXPERTS
Plaintiff’s orthopedic surgery expert:
Gregory Shankman from Utica, NY.
Defendant’s orthopedic surgery expert:
David Benatur from Long Island, NY.
REFERENCE
Nassau County, NY . Mitchell Kraeling
vs. Dr. S. Index no. 012448/2006; Judge
Joseph P. Spinola, 5-15-09. Attorney for
plaintiff: Duffy and Duffy in Uniondale,
NY. Attorney for defendant: Charles
Connick of Charles X. Connick, esq. in
Mineola, NY. Attorney for defendant:
Montfort,Healy,McGuire,et.alinGarden
City, NY.
Volume 1, Issue 2, February 2010 27

Medical Malpractice by Specialty
Pain Management
DEFENDANT’S VERDICT - Pain management physician
allegedly negligent in implanting pain pump in face of infection
present at site of prior pump implant - Subsequent E Coli
infection requires removal and six-month delay in new pump
implant - Claim for six months of pain and suffering and
suicidal ideation.
This was a medical malpractice action in
which the 52-year-old male plaintiff
contended that the defendant pain
management specialist negligently
implanted a new abdominal pain pump
despite the fact that the plaintiff had an
active infection at the site of the pain
pump being removed and replaced. The
plaintiff maintained that as a result of the
defendant’s negligence, he suffered an E.
coli infection at the implant site which
required its removal and a six-month wait
period for a new implant. The plaintiff
maintained that during this time, he
suffered severe pain that was so extreme
that he was constantly thinking about
suicide. The defendant contended that the
pump implant was appropriate in view of
the plaintiff’s mental state and maintained
that the two pump site infections were
unrelated.
The evidence revealed that the plaintiff
developed RSD in 1991. He was
unemployed at the time. The only
treatment which seemed to help with his
constant and unrelenting pain was the
installation of an abdominal pain pump.
The defendant became the plaintiff’s pain
management physician in 1995. Over the
ensuing ten years, the defendant implanted
approximately five pain pumps into the
plaintiff’s abdomen.
In May 2006, it was discovered that the
plaintiff had a small amount of fluid
seeping through a 4mm hole in the scar
over the site of the pain pump located on
the plaintiff’s lower left abdomen. The
defendant advised that this pump needed to
be considered infected and should be
removed. The plaintiff pleaded with the
defendant not to remove the pain pump as
it was the only treatment that helped his
RSD pain. The defendant was concerned
about the plaintiff’s mental state because
without a pain pump, the patient had been
suicidal in the past. The defendant advised
that the old pump had to be removed.
However, if at time of surgery, the area
around the old pump was not infected, he
would place a new pain pump on the other
(right) side of the plaintiff’s lower
abdomen. The plaintiff agreed and the
surgery took place on May 30, 2006.
Upon finding no obvious infection at the
old pump site, the defendant proceeded to
implant a new pump on the patient’s lower
right side. However, cultures taken from
the old pump site did show light growth of
MSSA. The patient did well post-operative
and for several weeks the wounds healed as
expected. It was at this time that the
plaintiff chose to terminate his
patient-physician relationship with the
defendant and did not show up for the next
scheduled appointment.
The plaintiff then developed a suspected
wound site leak and went to another
non-party pain management physician. On
July 6, 2006, this physician removed the
pump installed by the defendant. Cultures
taken from this site showed the presence of
an E. coli infection. Although this infection
ultimately cleared, the plaintiff was forced
to wait until it had done so before
undergoing another pain pump
implantation and was without a pain pump
for six months. The plaintiff claimed that
during this time he suffered so much pain
that he was suicidal. Ultimately, another
pain pump was placed in December 2006.
The plaintiff sued the defendant claiming
that a new pump should not have been
placed on May 30, 2006. Rather, the pump
on the left side should have been removed
and then, several months later, a new pump
placed. The plaintiff alleged that as a result
of this failure, he developed an E. coli
infection because the new pump was placed
without allowing an already present
infection to clear. The plaintiff claimed that
he was never suicidal prior to May 30, 2006,
and that he could have coped without a
pain pump for the period of time necessary
to let the original limited infection clear.
The plaintiff had also brought a claim
against the hospital. The plaintiff contended
that he spilled hot coffee on himself,
claiming that this defendant’s nurses had
negligently served him while he was too
sedated to safely drink hot liquids. The
hospital settled prior to trial.
The defendant maintained that his
treatment was appropriate given the clinical
presentation at surgery and the plaintiff’s
unique, potentially unstable mental status.
In this regard, the defendant successfully
argued that the plaintiff had indeed become
suicidal after the pump he placed was
removed under the non-party physician’s
care, and the defendant stressed that he had
been most concerned with this very
eventuality. Moreover, the E. coli infection
present at the July 6, 2006, procedure was
completely different and unrelated to the
MSSA infection present on May 30, 2006.
Therefore, the defendant argued that not
only was the defendant’s care appropriate,
but that a lack of proximate cause existed
for the plaintiff’s injury as the two
infections were unrelated to each other.
The plaintiff made a demand in the low
six-figures and asked the jury to award
$800,000. The defense refused an offer.
Thejurytriallastedfivedaysandthejury,
consisting of 4 males and 8 females,
deliberated for two hours before returning
a 10-2 verdict in favor of the defendant.
EXPERTS
Plaintiff’s infectious disease expert: Layne
Gentry, M.D. from Houston, TX.
Plaintiff’s pain management expert: David
Findlay, M.D. from Weatherford, TX.
Defendant’s pain management expert:
Donald Bacon, M.D. from San Antonio,
TX.
REFERENCE
Tarrant County, TX . Ricky Ray Adcock
and Cynthia Adcock v. Dr.D., et al. Docket
no. 153-224238-07; Judge Ken Curry,
4-17-09. Attorney for plaintiff: C. Robert
Dorsett, Jr of Dorsett Swift LLP in Austin,
TX. Attorney for defendant: Edward P
Quillin of Quillin Law Firm in Dallas, TX.
28 Healthcare Liability Review

Medical Malpractice by Specialty
Phlebotomy
DEFENDANT’S VERDICT - Failure to use proper needle and
use of excessive force while drawing blood - Anterior
interosseous nerve damage.
In this medical malpractice matter, the
plaintiff alleged that the defendant’s
phlebotomist was negligent in drawing
blood and caused her to suffer permanent
injury. The defendant denied the
allegations.
Thefemaleplaintiffwasatthedefendant
hospital on September 21, 2000. She had
blood taken by one of the defendant’s
phlebotomists. The plaintiff alleged that the
phlebotomist failed to use proper
procedure, stuck her several times and used
the incorrect size needle even though the
plaintiff specifically requested the use of a
“child size” needle. The plaintiff further
alleged that the defendant used excessive
force while drawing the blood.
The plaintiff maintained that she suffered
damage to her anterior interosseous nerve
as a result of the incident which caused her
to develop chronic regional pain disorder.
The plaintiff alleged that the injury
occurred in her dominant arm and she has
suffered permanent pain and loss of major
functions of that arm. The plaintiff brought
suit against the defendant hospital, alleging
negligence and maintaining that the
defendant phlebotomist deviated from
acceptable standards of care. The plaintiff
alleged a lost wage claim of $40,000 and
permanent pain and suffering. The plaintiff
demanded the sum of $800,000.
The defendant denied the allegations.
The defendant denied that there was any
deviation from acceptable standards of
care. The defendant also denied the
causation, maintaining that the
phlebotomist did not come in contact with
the plaintiff’s nerves and therefore, could
not have inflicted the alleged injuries.
At the conclusion of the trial, the jury
returned its verdict in favor of the
defendant and against the plaintiff.
REFERENCE
Androscoggin County, Maine. Connors
vs. Sisters of Charity Health System, Inc.
and St. Mary’s Regional Medical Center.
Case no. CV2003-165; Judge Ellen A.
Gorman. Attorney for defendant: James F.
Martemucci of Martemucci & Topchik
LLC in Portland, ME.
Podiatry
DEFENDANT’S VERDICT - Alleged malpractice during
metatarsal osteotomy - lack of informed consent - Alleged
failure to monitor and negligent post-operative care -
Continuing pain and disability.
The plaintiff contended that the
defendant podiatric surgeon failed to
properly perform a second metatarsal
osteotomy surgery to treat a hammertoe
of her right foot’s second toe, that he
failed to obtain informed consent to the
procedure, and that he failed to render
proper post-operative care. The plaintiff
maintained that immediately after the
procedure she felt fine and was advised by
the defendant that she could return to
work. She then claimed to feel pain and
was required to undergo follow-up
surgery and that she continues to feel
ongoing pain and disability. The
defendant argued that the procedure he
performed was consistent with podiatric
standards for a second metatarsal
osteotomy and that he did not advise the
plaintiff to return to work for five weeks
while she remain non-weight bearing.
On September 23, 2004, the 58-year-old
female plaintiff, a maintenance worker,
underwent the second metatarsal
osteotomy in the defendant’s office. The
procedure involved shaving the bone that
connected her left foot’s second toe and
the middle portion of her left foot. The
procedure also included the removal of a
neuroma. On October 5, 2004, the
defendant removed the surgical sutures.
The plaintiff immediately returned to work
and on November 9, 2004, she reported
that she was feeling much better.
The plaintiff claimed that she developed
intensifying pain that stemmed from her
right foot. By September of 2005, she had
visited the defendant three times to seek
evaluation of the pain. On March 20, 2007,
another podiatrist performed follow-up
revisionary surgery, but the plaintiff claimed
that she suffers continuing pain and
disabilities. She claimed that she has to rest
after walking long distances and her
disability impairs her ability to perform
housework.
The plaintiff commenced this action
against the defendant alleging that he
negligently performed the surgery, that he
failed to obtain informed consent to the
procedure and that he failed to render
proper post-operative care. Specifically, she
contended that her second metatarsal did
not heal properly because the defendant
had failed to apply both internal and
external fixation devices, and instead only
applied external fixation.
The plaintiff’s podiatric expert opined
that the defendant would have been able to
correct the improper healing had he
performed X-rays during the second,
fourth and sixth weeks following surgery.
The plaintiff further contended that the
defendant should not have advised her to
return to work as soon as she did, less than
two weeks after surgery. In addition, the
plaintiff alleged that the defendant did not
disclose the risks associated with the
procedure and that, therefore, the plaintiff
did not give informed consent. This claim
Volume 1, Issue 2, February 2010 29

Medical Malpractice by Specialty
was predicated on the plaintiff’s difficulty in
understanding English. The judge
dismissed that claim.
The defendant argued that the external
fixation he used was consistent with
podiatric standards for a second metatarsal
osteotomy and that he did not approve of
the plaintiff returning promptly to work;
rather, he advised her to remain non-weight
bearing form four to five weeks after the
surgery. The defense further argued that
theX-raysheperformedduringthefirst
and fifth weeks after surgery were
consistent with the standard of care and
Primary Care
that more frequent X-rays would not have
altered the plaintiff’s outcome. Defense
experts opined that the plaintiff’s one actual
disability stemmed from the displacement
of an implant that was inserted during the
revisionary surgery performed by a
different surgeon. They maintained that
removal of the implant would resolve the
plaintiff’s pain.
The trial lasted five days. After
deliberating for five hours, the jury of one
male and five females returned a
unanimous defense verdict.
EXPERTS
Plaintiff’s podiatry expert: Ovidio
Falcone from Brooklyn, NY. Defendant’s
podiatry experts: Thomas DeLauro from
Manhattan, NY and Edwin Wolf from
New York, NY.
REFERENCE
Queens County, NY . Maria Ano Grozav
Dr. G., D.P.M. Index no. 022825/2006;
Judge Allan B. Weiss, 3-19-09. Attorney for
plaintiff: Fredric Lewis in New York, NY.
Attorney for defendant: Feldman, Kiefer &
Herman in Buffalo, NY.
$12,500,000 CONFIDENTIAL RECOVERY - Improper
placement of feeding tube - Respiratory arrest in infant -
Oxygen deprivation - Cerebral palsy.
In this matter, the plaintiff alleged that
the defendant medical provider was
negligent in the placement of a feeding
tube which caused respiratory arrest and
resulting brain damage. The defendant
denied the allegations.
The infant plaintiff was born on October
5, 2003, and was several weeks premature,
but otherwise healthy. He was placed in the
NICU unit so that he would be able to gain
weight and develop further prior to
discharge from the hospital. At
approximately three weeks of age, a feeding
tube was inserted so that the infant could
receive routine two hour feedings. The
defendant inserted the feeding tube into the
plaintiff’s lung rather than his stomach. No
one discovered this error and the next three
feedings were given to the plaintiff into his
lung, rather than his stomach. After the
third feeding, the plaintiff suffered
respiratory arrest. Emergency resuscitation
efforts were undertaken, but were initially
unsuccessful because no one realized the
scope of the problem at the time. When
one health care provider inserted a chest
tube into the infant’s lung for a possible
pneumothorax and milk immediately came
spilling out, it became apparent to the staff
that this was the originating problem. The
plaintiff was revived immediately thereafter;
however, the child had been deprived of
oxygen sufficiently long enough to suffer
brain damage. The plaintiff was diagnosed
with cerebral palsy as a result of the
incident.
The plaintiff brought suit against the
defendant medical provider, alleging
negligence and breach of the standard of
care. The defendant denied the allegations
of negligence and disputed the nature and
extent of the plaintiff’s claim for damages.
The parties eventually agreed to a
confidential settlement of $12,500,000. It is
reported as the largest personal injury
settlement in this county.
REFERENCE
Peoria County, Illinois. Keith Quadros, a
minor by his parent and next friend, Sunil
Quadros and Sunil Quadros, individually
vs. Undisclosed Medical Provider. Case
information withheld, 5-5-09. Attorneys for
plaintiff: David J. Pritchard and Patrick A.
Salvi of Salvi, Schostok & Pritchard P.C. in
Chicago, IL.
30 Healthcare Liability Review

Medical Malpractice by Specialty
Radiology
$275,000 VERDICT - HMO radiologist fails to appreciate
pathology on chest x-rays - Failure to adequately label x-rays
- Delayed diagnosis of Stage IV squamous cell carcinoma of
the lung - Wrongful death.
The decedent plaintiff contended the
radiologist for defendant HMO failed to
appreciate the pathology on a set of chest
x-rays done in 2003 and 2004, which the
plaintiff claimed indicated the presence of
a mass. The plaintiff brought suit against
the HMO claiming negligence in the
standard of care which delayed her
diagnosis of stage IV squamous cell
carcinoma of the lungs; a delay she
claimed affected the curability of her
disease. The defendant claimed there was
no breach in the standard of care in the
labeling of the x-rays. The plaintiff’s adult
children also joined the settlement with
claims of wrongful death. The plaintiff
died as a result of her illness shortly after
this case settled.
The female plaintiff, in her mid 60s at the
time the x-rays were done, enrolled in the
defendant HMO in 1998. Based upon her
history of smoking, she obtained chest
x-rays from HMO physicians in 2003 and
2004. Those x-rays were read as old
granulomatous disease and old rib fractures.
In July 2004, the plaintiff changed
physicians within the HMO and no chest
x-rays were obtained despite the fact the
plaintiff was coughing up bloody sputum at
that time. She was diagnosed with a chest
infection and no further chest films were
recommended.
In 2008, the plaintiff was diagnosed with
stage IV squamous cell carcinoma of the
lungs and began medical treatment for the
disease. The plaintiff argued that by labeling
the film as “old granulomatous disease,”
her treating physicians were misled and
therefore, failed to order serial x-rays, failed
to refer her to specialists and failed to
obtain a biopsy. The plaintiff further
argued that had the diagnosis been made
around 2004, her disease would have
been curable.
The case settled prior to trial, but the
defendant was prepared to argue the
standard of care was met at all times and
that even had the plaintiff’s diagnosis
been made in a more timely fashion, she
would not have been survivable. The
plaintiff demanded $350,000 and the
defendant offered $200,000. The matter
settled via binding arbitration for
$275,000, which included the plaintiff’s
claim for her injuries and the adult
children’s potential claims for wrongful
death.
REFERENCE
Riverside County, California. Roe vs.
HMO. Mediator Judge Thomas F. Nuss,
Retired, IVAMS, 3-11-09. Attorney for
plaintiff: Jeffrey A. Milman, Esq. of
Hodes Milman, LLP in Irvine, CA.
Attorneys for defendant: Mike Lubrani
and Leanna Hiraoka of Lubrani & Smith,
LLP in Riverside, CA.
Where does Healthcare Liability Review
find actual medical liability cases?
Our consulting partner, Zarin’s Professional
Liability Publications/Medical Liability Alert,
utilizes actual trial results as published in Jury
Verdict Review Publications, Inc.
(www.jvra.com). Jury Verdict has been
monitoring and publishing jury verdicts with
analysis and commentary for the legal, insurance
and academic communities throughout the U.S.
since 1980. All cases cited in this publication are
the actual trial experiences of physicians,
dentists and other caregivers.
What can we expect to learn from the
companion CME exam?
The CME course and exam are sponsored by
the University of Medicine and Dentistry of
New Jersey. They are designed to demonstrate
to the provider through review and analysis of
actual medical liability case histories the factual
patterns of provider conduct that created
liability. Another learning objective is to define
the legal criteria that determine liability in order
to avoid and reduce the provider’s medical
liability exposure.
Participants in this self-study CME activity can
earn up to 12 AMA PRA Category 1 Credits.
Upon completion of the activity as designed and
achieving a passing score 70% or higher,
participants will receive a letter of credit
awarding the AMA PRA Category 1 Credits.
If I have questions, suggestions or
comments about the newsletter, who can I
contact?
Please do not hesitate to contact your broker
with any questions or comments that you may
have about Healthcare Liability Review or call
Oceanus Insurance directly (toll free)
866-558-2247.
Volume 1, Issue 2, February 2010 31