Malpractice

WHEN READING THE DESCRIPTIONS OF THESE PAST CASES, PLEASE KEEP THIS IN MIND:

1)  THE OUTCOME OF A PARTICULAR MATTER DEPENDS ON A VARIETY OF FACTORS UNIQUE TO THAT CASE.;  AND

2)  CASE DESCRIPTIONS ARE NOT INTENDED TO GUARANTEE OR PREDICT ANY SIMILAR OR PARTICULAR RESULT IN THE FUTURE AND YOU SHOULD NOT ASSUME THAT A SIMILAR RESULT CAN BE OBTAINED IN A LEGAL MATTER OF INTEREST TO YOU.

Dental – Anesthetic Injection – Needle Trauma

Dentist damaged cranial nerves during an anesthetic injection. Dentist inserted the needle into the gum near the tempomandibular (jaw joint), causing the patient to feel an immediate, intense pain, electrical shock in the tongue, and to involuntarily lunge forward from the chair into an upright position. With the syringe still in patient’s mouth, the dentist pushed the patient back in the chair and plunged in the entire carpule of anesthetic fluid into the lower mandibular area. Nerve damage caused by needle trauma she sustained during this injection left patient with oral pain, a loss of speech, touch, taste, sensation, and general motor function of the tongue.

The case, which lasted 7 years, involved two trials and an appeal. Over 40 witnesses participated in the case, including multiple experts in anatomy, anesthesiology, neurology, oral medicine, oral surgery, speech pathology, economics, vocational disabilities, and American Sign Language.

The defense based its strategy entirely on the credibility of the defendant dentist who testified he remembered nothing about the injection and did not write any description of the injection in the patient’s chart. The defendant argued that the injection did not occur as described by the patient, because he and his employees would have remembered such an extraordinary event. However, none of the dentist’s employees could recall being present or if they were in a position to observe the injection. The dentist also attempted to present testimony of his past habit and custom of doing injections. At the first trial, the trial judge excluded the three employees testimony, because defendant established no evidentiary foundation that these separate witnesses remembered being present and in a position to observe this event. However, following trial, the dentist filed a Motion for Judgment Not Withstanding the Verdict and the first trial judge incorrectly found his ruling that this negative evidence lacked foundation, to be in error and ordered an entirely new trial. The District of Columbia Court of Appeal, in a reported opinion, Hummer vs. Levin, et. Al., 673 A.2d 631 (DC 1996), ruled that the first trial judge was initially correct in excluding this negative evidence that lacked foundation and subsequently erred in granting a new trial.

The first trial ended with a $4 million verdict and the second trial ended with a $3.2 million verdict, which was immediately paid. Patient then appealed the judgment for $3.2 million and two years later, the Court of Appeal reversed the trial court’s order for a new trial and reinstated the original jury verdict of $4 million. The defendant then paid an additional $1.2 million in judgment and interest for total payments of $4,400,000.00 in judgment and interest

This case was also reported in the following publications:

Washington Times, May 1, 1992, Dental Suit Yields $4 Million

Montgomery Express, May 5, 1993, Chevy Chase Dentist to Pay $3.2 Million Suit

Daily Washington Law Reporter, April 19, 1996, Negative Evidence

Metro Verdicts Monthly, Volume 4, Number 7, page 243, Dental Malpractice Injection Nerve Damage

Metro Verdicts Monthly Volume 5, Number 8, page 289, Dental Malpractice Injection Loss of Speech

Obstetric and Neonatal Care – Wrongful Death –

Controversial wrongful death case for neonatal negligence involving two Roman Catholic institutions, Georgetown and Providence, and their respective hospitals and doctors and the non-consensual abortion of a 22-week fetus. Mother’s medical care for her pregnancy was delivered by a second year family practice resident, despite the fact that qualified obstetricians, neonatal physicians and proper diagnostic equipments where readily available that could have effectually monitored, examined, tested and treated the mother and baby. Pre-delivery, doctors failed to classify and plan for an high risk pregnancy in a Level 3 facility for the eventuality of pre-mature labor and other complications which the mother had experienced with previous pregnancies.

When she went into labor at 22-weeks, the obstetrician in charge, without the mother’s consent, purposely ruptured the membrane to hasten birth. Obstetrician dropped the baby into a metal pan, then deprived the baby of oxygen or any neonatal care for one hour. After being transferred (and only at the mother’s insistence) to ICU at Children’s Hospital, baby died six hours later.

The hospitals and doctors settled the case on the eve of trial based largely on testimony from experts in obstetrics and neonatology who testified in deposition to their breaches in the standard of care in these circumstances by failing to:

Perform adequate vaginal examination;

Monitor fetal heart rate;

Perform sonogram examination;

Prescribe bed rest;

Administer cortisone to mature lungs by stimulating production of surfactant; and

Administer tocholytic agents to prevent further dilation and effacement of the cervix

so as to maintain the fetus in utero, and extend gestation to a time closer to full term.

Malpractice – Hospital Negligence – Shock Trauma Care & Surgery – Wrongful Death

Wrongful death suit and settlement against D.C. Government on behalf of widow and two children of a deceased gas station manager who was shot by an armed robber. During a exploratory laparotomy the surgeon determined by palpation that there was a stellate (star like) laceration over the dome of the liver (2 in. long by 3 in. wide by 1.25 in. deep). The surgeon decided to place a drain and close the lap and monitor the bleeding and decided not to gain access and visualize the wound to determine the full nature, extent, character, and track of the wound or the method of tamponade. The liver wound continued to bleed. The medical records established that for ten hours following surgery the liver was losing a high volume of blood and a high volume of blood products were being infused to replace this loss. (5,450 ml of pack cells, fresh frozen plasma, whole blood and platelets). Repeated post-surgical laboratory results (PH, PO2, PCO2, PT, PTT, Platelets, HGB, HCT, WBC, RBC, NA Clorides, Carbon Dioxide, Potassium, Sodium, Bun, Glucose Calcium Creatinine, Fibrin, Split and Fibrogen) showed a steady decline in the patient’s physiological condition as a result of the tremendous blood loss and its replacement with inferior blood products. The hospital did attempt to repair the bleeding liver laceration for the next 10 hours. When a second surgery to repair the laceration was finally attempted, the patient was in much graver physiological condition from the tremendous blood loss and was unable to survive the second surgery.

Malpractice: Hospital Negligence – Ambulation of Post-Surgical Patient.

A hospital nurse and hospital occupational therapist attempted to have patient stand and walk for the first time since her total knee replacement surgery several hours earlier and while patient was infused with the analgesics and anesthetics, Fentyl and Bupivacaine. Before attempting to ambulate, patient warned the nurse and therapist that her leg was “dead” and she could not feel anything in it. Patient even banged her leg several times to show the therapist that she could not feel it due to the effects of the epidural and could not safely stand on her own. The therapist responded “we do it all the time.” Then when therapist and assistant attempted to make the patient stand, she was immediately dropped, her surgical incision was completely opened. As a reslut of the fall, patient suffered severe damage at the original surgical site, disfigurement, pain and permanent loss of range of motion and weight-bearing capacity and required two more surgeries, a reconstruction of the medial collateral ligament by an orthopedic surgeon and plastic surgery for a muscle flap with skin graft.

The hospital settled shortly before trial based largely on the strength of the deposition testimony of the plaintiff’s nurse expert, board-certified in orthopedic nursing and emergency nursing with extensive experience working with adult orthopedic surgical patients in a hospital setting and standards of nursing. The expert testified to conduct which failed to conform to those standards and what reasonably prudent nurses, occupational and physical therapists, in similar circumstances would do. She testified, for example, that the standard requires that an adequate assessment of a patient’s fall risk be evaluated considering factors such as age, size, weight, mental status, history, medications, impaired mobility, physical weakness, deformity, impaired mobility, poor coordination, balance, sensation status of extremity, and the patient’s perception of their current condition. The nurse expert testified these factors were not taken into account and even if it was necessary to ambulate the patient, the hospital staff should have adequately planned the ambulation, and utilized a safe method and equipment (i.e., strapping patient to hospital staff for stability) that could have prevented the fall.

Malpractice: Fraudulent Rotator Cuff Surgery

Orthopedic surgeon committed fraudulent rotator cuff surgery on a 72-year old patient complaining of shoulder pain for only three weeks and she was offered only surgery and no conservative treatment option, such as cortisone injection. Before surgery, the MRI written report of the radiologist stated the film showed no rotator cuff tear. The surgeon testified he never reviewed the MRI film of the shoulder he ordered. During the surgery, the surgeon took no tissue sample to send to pathology for study.

After the first surgery, patients shoulder pain continued and another orthopedic surgeon found the source of her pain to be a bone spur that needed shaving. During the second surgery, second orthopedic visualized and inspected the area of the supposed first surgery where rotator cuff tear and repair would have occurred. In the second surgeon’s operative report testified this area, in his exact words, was “pristine” and the coracoacronial ligament that was to have been repaired in the rotator cuff repair surgery was still intact and without any evidence that a repair had ever taken place.

The civil trial against the surgeon occurred after he was convicted on federal perjury and tax evasion charges. During the civil trial, the court permitted the jury to hear cross-examination of the doctor explaining to the jury why he could not attend the rest of the trial because he was being sent the next day to federal prison to serve his prison for these criminal charges. The medical malpractice insurance company settled the case while the jury was still deliberating on their verdict.

Legal Malpractice- Failure to Timely Re-file – Non-Suit Statute

Elderly motorist injured in a high-speed crash caused by fleeing motorist who ran a red light while attempting to elude the police that were chasing him. The elderly motorist’s attorney originally filed suit against fleeing motorist and subsequently non-suited the case, Under Virginia Code § 8.01-380, a plaintiff may dismiss their claim once as a matter of right with the right to re-file the claim in the same court within 6 months. Original attorney failed to re-file the case within 6 months of taking the non-suit, and could not withstand a motion to dismiss her personal injury case. Following this dismissal, original attorney was immediately amenable to settlement and his professional liability insurance company paid elderly motorist a fair and reasonable settlement of the legal malpractice claim.

Legal Malpractice: – Failure to Timely File Lawsuit – Statute of Limitations

Claim against personal injury law firm for failure to timely file a complaint for negligence on behalf of an injured motorist (Virginia Code § 8.01-243 two-year limitation for filing a personal action for injury) settled with law firm for the likely value of the underlying personal injury claim, if it had been timely filed and reached a verdict or settlement.