Kentucky Injury Law Blog

Medical Malpractice News: Lawyers for the family of actor John Ritter will proceed to trial today in their claim that his death could have been prevented. Learn more about the case: LA Times NBC Today Show Interview with John Ritter's widow

Make no mistake about it, aortic dissection is a dire emergency requiring immediate medical intervention.

In the Kentucky medical malpractice cases involving failure to diagnose aortic dissection cases I have handled, one of the key issues is the time between the failure to diagnose and the death of the victim. In other words, was there enough time to make a difference? Based on conversations I have had with experts on the subject, cardiologists and thoracic surgeons, if the misdiagnosis and the death are more than an hour or two apart, it is virtually certain that there was enough time to treat the condition appropriately and prevent the patient from dying.

I assume this will be one of the key issues in the Ritter case.

Amy Yasbeck, widow of actor John Ritter, does a fantastic job in her interview on NBC's Today Show. It sickens me every time I hear a reporter talk about a "$5 Million Dollar" lawsuit, or that a victim is seeking "$70 Million Dollars". Ms. Yasbeck clearly explains what Kentucky injury lawyers know, that she is not seeking "$67 MIllion Dollars".

Watch the video.

My partner Larry Jones and I recently created a website as a resource people who suffered heart attack or stroke while taking Avandia. KentuckyAvandiaAttorneys.com provides victims with resources and information on how Glaxo SmithKline marketed this dangerous drug, and a review of current Avandia lawsuits.

Kentucky mesothelioma lawyers will want to take note of this recent verdict in Baltimore. The plaintiff, a 73 year old man who worked with asbestos laden rope manufactured by John Crane, Inc. in the 1950s, was awarded $15.3 million.

$15.3 million in asbestos case

January 31, 2008

A Baltimore jury ordered a sealant company yesterday to pay a 73-year-old man $15.3 million after determining that he developed mesothelioma from exposure to asbestos-containing products made by the company, the plaintiff's lawyer said.

The National Senior Citizen Law Center recently reviewed nearly 200 admission agreements from Nursing Homes across the U.S. What they found was very disturbing, but not unexpected. At least it isn't to Kentucky nursing home lawyers.

It seems that nursing homes have been inserting language into their ad mission agreements that conflict with Federal and state law. In many instances, the agreements contained arbitration agreements. What nursing home neglect victims and their families don't often realize is that such provisions are almost universally unenforceable.

Clauses in nursing home agreements may violate the law
Kansas City Star, MO - Feb 2, 2008
... complex nursing home agreements, according to a new study. Although most presented few problems, some admission agreements skirt state and federal laws, ...

Click here to download the entire study

Kentucky dog bite victims were dealt a blow recently in an opinion written by Judge Tom Wine of the Court of Appeals. In the opinion, Wine extended the logic of Johnson v. Brown, 450 S.W.2d 495, 496 (Ky. 1970) and Dykes v. Alexander, Ky., 411 S.W.2d 47
(1967), which held that "one who keeps a dog enclosed or fettered on his own premises will not be liable to an interloper whose presence and exposure to the dog he has no reason to anticipate." In Carmical, the Court extended the logic to include deliverymen, further abrogating KRS 258.275(1).

Read the opinion here: Carmical v. Bullock

In other dog bite news, my partner Vanessa Cantley recently appeared at a Metro Louisville subcommittee hearing on the new dog ordinance. She has proposed a change to the dog ordinance which would require landlords/homeowners in Metro Louisville to provide insurance to cover tenants’ dogs in case of attack or require their tenants to maintain renter’s insurance which would do so. Kudos to Vanessa for taking a stand for dog bite victims.

In a fascinating change of policy, Medicare announced last week that it will not cover medical care for injuries resulting from medical errors. In other words, medical malpractice. This raises a host of serious questions for doctors, hospitals, injured patients and their lawyers. Will Kentucky medical malpractice attorneys be able to use this to their client's advantage? Or will it complicate matters?

Download the Centers for Medicare and Medicaid Services press release or visit the website for more information.

New York Times Article

Medicare Says It Won’t Cover Hospital Errors

By ROBERT PEAR
Published: August 19, 2007

WASHINGTON, Aug. 18 — In a significant policy change, Bush administration officials say that Medicare will no longer pay the extra costs of treating preventable errors, injuries and infections that occur in hospitals, a move they say could save lives and millions of dollars.
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Eileen O’Neill-Pardo’s mother, Margaret, died after an infection developed at a hospital.

Private insurers are considering similar changes, which they said could multiply the savings and benefits for patients.

Under the new rules, to be published next week, Medicare will not pay hospitals for the costs of treating certain “conditions that could reasonably have been prevented.”

Among the conditions that will be affected are bedsores, or pressure ulcers; injuries caused by falls; and infections resulting from the prolonged use of catheters in blood vessels or the bladder.

In addition, Medicare says it will not pay for the treatment of “serious preventable events” like leaving a sponge or other object in a patient during surgery and providing a patient with incompatible blood or blood products.

“If a patient goes into the hospital with pneumonia, we don’t want them to leave with a broken arm,” said Herb B. Kuhn, acting deputy administrator of the Centers for Medicare and Medicaid Services.

The new policy — one of several federal initiatives to improve care purchased by Medicare, at a cost of more than $400 billion a year — is sending ripples through the health industry.

Yet another study shows what Kentucky Malpractice Lawyers have been saying for years:  it is the insurance industry, not lawyers or lawsuits that are responsibile for the high premiums doctors pay for medical malpractice coverage.

The report, compiled and authored by Jay Angoff (former Missouri Insurance Commissioner), surveyed annual reports from 15 medical malpractice insurers.  Agnoff’s conclusion is that insurers raised MDs’ premiums without reason and have perpetrated a lie by claiming that a so-called “malpractice crisis” exists.

For a copy of the report “No Basis for High Insurance Rates: An Analysis of the 15 Largest Medical Malpractice Insurers 2006 Financial Statements”, visit www.justice.org/pressroom/angoff

Everyone makes mistakes. Even doctors. But you rarely hear a doctor admit she made a mistake. In my years representing Kentucky medical malpractice victims, I have never once heard a doctor admit their error caused a patient harm. In his new book, Dr. Atul Gawande says just that. Gawande, a surgeon whose bestselling book inspired the hit TV series Grey's Anatomy, takes a refreshingly candid look at the medical profession and the havoc medical errors can cause.

Here, he discusses a surgical error:

Six months ago, I was performing a thyroid operation on a teacher my age and damaged a nerve that led to her vocal cords. This woman can no longer talk and has had to give up work. The only way I can live with myself is to try to do all I can for her and understand what I did wrong and do better next time. Being sorry is not enough.

The Guardian has an interesting article on Gawande and the book. An interesting read.

I've handled medical malpractice wrongful death lawsuits all over Kentucky. But never one for an elective cosmetic surgery. I've always wondered how jurors would react to the obvious defense theme that the deceased put their own life at risk for vanity's sake. That would definitely be something to explore in a focus group.

New York lawyer Tom Moore apparently knows the answer to that question. I have seen Tom Moore speak at seminars on numerous occasions. I have watched trial tapes from a few of his trials. He is as passionate a lawyer as I have ever run across. Anyone who has seen him in action will agree. It comes as no surprise that he settled a case this week in excess of $3 million dollars involving a woman who died during a facelift.

But wait! There is a twist. The surviving husband is a physician. I have to wonder what his stance on tort reform was prior to this tragedy. Reminds me of Senator Robert Smith of New Hampshire and "friend of the people" Rick Santorum, whose wife filed a medical malpractice suit in 1999 for over $500,000.

Can you say Hypocrite?

I am always amazed when I see kids whizzing around Louisville on their "roller shoes" . To be completely honest, I even want some for myself. But being a personal injury lawyer, I can't help but wonder if it wasn't just an injury waiting to happen. According to a recent study published in the journal Pediatrics, they are very dangerous. As you would expect the real danger is while kids are learning to use the shoes. And if you let your kid wear them without protective gear such as elbow pads, knee pads and wrist guards.

I would be very interested to know what kind of warnings accompany these shoes. There may indeed be a very good basis for a products liability suit. These shoes may be unreasonably dangerous.

Do you think "Heelys" will go the way of the lawn dart?

I think the key phrase here is “perhaps unfairly so”.  Anyone who has tried a number of medical malpractice cases in Kentucky knows this to be true.  Try enough cases, and you are going to lose one.  Justice is often elusive when the defendant is an MD.  I recently tried a medical malpractice case to a Louisville jury where the doctor made a medical error and wrote a prescription for over 10 times the recommended initial dose.  My client nearly died and suffered excrutiatingly painful injuries and permanent scarring.  But the jury bought the defense theory that this could have happened even if the proper dosage had been prescribed and found against the plaintiff.  They completely ignored the fact that the prescription error made it likely that she would suffer these injuries, whereas it would have been very unlikely had the prescription been correct.

And justice eluded my client.  “Unfairly so”.  No perhaps about it.

Malpractice Juries Tend to Side More With Doctors, Researcher Finds

Charles Toutant
New Jersey Law Journal
April 26, 2007

Popular belief, at least in medical communities, holds that juries in medical malpractice cases tend to side with plaintiffs, even where the case against a doctor is a weak one.

But jurors actually tend to believe doctors more than they do plaintiffs, says a law professor who examined numerous data on medical malpractice litigation, including cases in New Jersey.

Philip Peters Jr., of the University of Missouri-Columbia School of Law, concluded that juries treat doctors favorably, "perhaps unfairly so," and are more likely than even fellow physicians to defer to a doctor's opinion.

Law.com - Malpractice Juries Tend to Side More With Doctors, Researcher Finds.