Health Care Reforms Stymies Caps on Medical Malpractice Damages


Posted on 30th March 2010 by gjohnson in Uncategorized

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President Obama’s health care reform is a triumph for those, like us, who oppose the unfair setting of limits on malpractice awards. We don’t believe that state lawmakers should have the right to tell someone who has lost use of their limbs, or suffered permanent brain damage, that their case is only worth $350,000, or $500,000. Under the law, that should be a jury’s decision, not a legislator’s.

Now, there is more legal backing for our viewpoint, out of Washington. Advocates of setting of caps on malpractice awards against doctors had been lobbying in D.C. for some support for their position as part of the health care changes.

But the overhaul that the president signed into law last week doesn’t address the issue of malpractice-award limits, according to The Wall Street Journal.

Proponents of the caps claim that huge malpractice verdicts have sent the cost of malpractice insurance through the roof in this country.

These advocates also argue that fear of being sued for malpractice is contributing to health-care costs skyrocketing, as physicians take defensive measures such as ordering unnecessary tests and procedures to cover their backs in case they are sued later on

Obama’s health care reform marks the third defeat that proponents of medical malpractice limits have suffered in recent weeks. Both the Illinois Supreme Court and the Georgia Supreme Court just tossed out limits in those states, $500,000 and $350,000, respectively.

The Journal pointed out that some malpractice changes did make it into the new health-care legislation. For example, the new law sets aside $50 million for states that try to slash malpractice costs by creating alternatives for trying cases or improving patient safety.

But there is also a provision that lets attorneys for plaintiffs to bypass any alternatives, and instead file suit in state court.

In the Georgia malpractice cap that was overturned, the case involved was that of a woman awarded $1.15 million for pain and suffering she suffered from a botched facelift.

In Illinois, the case led to that state’s malpractice limit being tossed out stemmed from a girl being born with brain damage.

The Journal quoted Theodore Olson, the attorney for the doctor in that case. He said it was hard to understand the notion that the state Legislature couldn’t set limits on damages. Why so?

If a jury of her peers believes a woman deserves $1.15 million because her face was like an open wound after her facelift, who are Georgia lawmakers to say she should only get $350,000?

Georgia Overturns Malpractice Cap In A Case That Puts A Face On Why Limits Are Unjust


Posted on 24th March 2010 by gjohnson in Uncategorized

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This one means something personal to me. Tommy Malone of Atlanta, Georgia is the best lawyer I know. He is a long time personal friend, a man who has mentored me, chuckled at some of my “out there” theories and co-counseled cases with me. His son, Adam Malone, may be the finest “young lawyer” in America. Adam has the combination of character, intelligence and sincerity that if he wanted to run for President, he would be a serious contender. He will someday have the position I now hold as Chair of the Traumatic Brain Injury Litigation Group.

I first saw the video of the catastrophic ruin a greedy doctor made of this woman’s face last summer at our national convention. My paralegal Jayne, who sat next to me while we watched, it has asked me about how the appeal has come out, a dozen times since.   Here the problem wasn’t that a jury wasn’t favorable to Adam’s client. The reason for the appeal was that the law, put in to assure that all doctors didn’t leave the State of Georgia (how ridiculous is that to even say) had limited her right to recover for this horrible disfigurement, drastically reducing the verdict.   The Georgia Supreme Court has said that was wrong and ruled the cap on damages unconstitutional.  In this case there may be the coming to justice that will forever put a stop to artificial restraints on what victims of malpractice and other wrongdoing can recover.

With this action, Georgia has become the latest state to throw out caps on awards in medical malpractice suits.  In this case,  Betty Nestlehutt, who is 75 now,    was horribly disfigured from a botched facelift.

If you watch the video,  you will see the injustice on capping this wrongdoing. There is no way that Georgia’s $350,000 limit on noneconomic malpractice damages could be considered adequate payment for her ordeal.   It’s particularly heart-wrenching to watch Nestlehutt’s spouse try to carefully apply some kind of bandages to her wounds, as she flinches in pain.

In fact, a jury had found that she was entitled to $1.265 million in damages – a verdict that the George Supreme Court upheld, leading to the overturning of the state’s cap on malpractice awards.

Nestlehutt, who was in the real estate business with her husband in Marietta, Ga., decided to get a facelift in 2006. Her physician convinced her to get a long list of procedures, including the facelift. But after the surgery, Nestlehutt developed raw, open wounds on her face.

Nestlehutt’s face remained scarred, and the video says she is embarrassed to be seen now and doesn’t like to go out.

On Monday Georgia’s highest court ruled on Nestlehutt’s case, finding that the state’s $350,000 limit on noneconomic damages, such as a plaintiff’s pain and suffering, from malpractice was in violation of the Georgia constitution, which guarantees the right to a jury trial.

In the high court’s unanimous ruling, Georgia Chief Justice Carol Hunstein wrote that the state’s 2005 limit on damages “clearly nullifies the jury’s findings of fact regarding damages and thereby undermines the jury’s basic function…The very existence of the caps, in any amount, is violative of the right to a jury by trial.”

Last month the Illinois Supreme Court scrapped the state’s $500,000 cap on malpractice damages against doctors and $1 million cap for hospitals, saying that the limits were unconstitutional. Roughly two dozen state now have caps on malpractice damages.

Georgia was limiting malpractice damages to $350,000 against physicians and $1 million against health-care providers.

In Nestlehutt’s case, a jury awarded her $115,000 for past and future medical care; and $1.15 million to her and her husband for noneconomic damages, with $900,000 of that for the woman’s pain and suffering.

Plastic surgeon Dr. Harvey “Chip” Cole had appealed the jury verdict, based on the state’s malpractice cap.

The real credit in this case must go to Adam Malone.  Rather than declining this case because of the cap, he saw it as just the right case to prove in undeniable ways the injustice of the cap.  He advocated in a special way unique to who he is and changed the law of Georgia and perhaps the law of the land.

Adam, I am proud to know you.

Former Arena Football Player Sues Team Doctor for Malpractice Over Concussions


Posted on 19th March 2010 by gjohnson in Uncategorized

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A case in Denver may be the first lawsuit where a professional football player is charging a team doctor with malpractice, for the way the physician treated his concussions, since the issue of head injuries came to national prominence three years ago, according to The New York Times.

The legal action was filed Wednesday by a former Arena Football League player, Clay Rush, against Dr. Saurabh Mangalik, team doctor for the now-defunct Colorado Crush, as well as the physician’s employer, HealthONE Clinical Services. The doctor and HealthONE were independent contractors for the team.

In the lawsuit, which was filed in a Colorado state court in Denver, Rush alleges that in 2008 he suffered several hits to his head during several games. The litigation alleges that Mangalik botchedhis treatment of Rush, which had led to permanent brain injury for the player.

The suit charges that Mangalik just treated Rush for a headache, failing to evaluate and observe him before letting him go back to play.

In a phone interview with The Times, Mangalik denied any wrongdoing and said he didn’t know there had been any problems with Rush’s care until he was contacted by the newspaper.

The doctor also asserted that he had warned Rush and Crush trainers that the injured player should not resume practice or return to play until his brain injury symptoms, such as headaches and dizziness, disappeared.

The Colorado Crush team don’t exist anymore.

There have been lawsuits similar to the one filed by Rush. La Salle University last November paid $7.5 million to settle a suit brought by a player who sustained a bad concussion and claimed that the school’s medical staff didn’t give him adequate treatment.

Ten years ago, former National Football League running back Merril Hoge sued Dr. John Munsell, the former Chicago Bears team doctor. The case was later settled, with the terms remaining confidential, according to The Times.

Hospitals Look At Ways to Curb Errors, Help Staff That Make Mistakes


Posted on 18th March 2010 by gjohnson in Uncategorized

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Hospitals Look At Ways to Curb Errors, Help Staff That Make Mistakes

The Wall Street Journal Tuesday offered an intriguing take on how hospitals are trying to deal with errors by staff – including consoling physicians and doctors who make mistakes.

The story, headlined “New Focus on Averting Errors: Hospital Culture,” leads off by noting that errors by medical staffs lead to the deaths of an estimated 44,000 to 98,000 people a year.

The piece by one of the Journal’s star reporters, Laura Landro, says that hospitals are not only addressing the problem of staff errors but are also “coming up with procedures for handling – and even consoling – staffers who make inadvertent mistakes.”

A government advisory board, the National Quality Forum, has crafted a Care of the Caregiver guide, which has hospitals treating “traumatized staffers” who made errors with patients as if they are patients, too. Those guides even suggest that such staffers take part in the investigation of the error as long as they are not believed to acted recklessly or intentionally.

Noting that sometimes hard to assign blame for an error, the story cites a case that happened at St. Mary’s Hospital in Madison, Wis., four years ago. A nurse, Julie Thao, mistakenly gave a 16-year-old teen, Jasmine Gant, about to give birth an IV with an filled with an epidural pain killer.

The baby was delivered through a Caesarian section, but the mother Gant died. Thao lost her job, and was prosecuted for criminal negligence.

St. Mary’s paid a $1.9 million settlement to dispose of the malpractice suit brought by Gant’s family.

A study on that case that will be published in the April issue of the Joint Commission Journal on Quality and Patient Safety. That study found that although Thao skirted some safety procedures, there were weak links in the safety guidelines that contributed to her error. That study was also critical of the way St. Mary’s fired Thao.

Eventually, Thao plead guilty to reduced charges of two misdemeanors, and her nursing license was suspended. But Thao, who once considered suicide, got work as a researcher with an official of the National Quality Forum.

Jury Awards $38.8 Million In C-Section Malpractice Case


Posted on 13th March 2010 by gjohnson in Uncategorized

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A case involving a too common malpractice situation, a newborn sustaining brain damage at birth, has resulted in a jury awarding $38.8 million in damages.

Such a large verdict should be noted for the record, but there were not many details provided in the press release about the case.

The jury verdict stemmed from a case where the failure to perform a C-section resulted in a newborn sustaining brain injury.

The press release provided by the Orlando, Fla.-based law firm that won the case, Morgan & Morgan, doesn’t name its clients or say where the verdict was rendered or against whom.

“Delayed C-sections, in cases where the standard of care dictates that the operation be performed, are serious acts of medical negligence than can result in irreversible injury to the baby, such as cerebral palsy and serious brain damage,” the press release says.

U.S. Supreme Court To Hear Vaccine Brain-Damage Case


Posted on 9th March 2010 by gjohnson in Uncategorized

The U.S. Supreme Court has agreed to hear a case on whether a Pennsylvania family can proceed with their 15-year-old litigation against a drug maker whose vaccine, they allege, caused severe brain damage in their daughter.

The nation’s highest court will hear the case, of Robalee and Russell Bruesewitz against Wyeth, during its term that begins in October.

The couple, of Mount Lebanon, Pa., charge that their daughter Hannah, 18, started having seizures shortly after getting her third vaccination with the diphtheria-pertussis-tetanus vaccine. The suit alleges that Hannah changed from being a healthy baby to being an individual who will need lifelong care.

Wyeth, now part of Pfizer, took the verson of the tetanus vaccine that allegedly caused Hannah’s brain damage off the market in 1998.

A tangle of litigation ensured. The 3rd U.S. Circuit Court of Appeals last year agreed with a lower court ruling that said a 1986 law barred the Bruesewitzes from suing. That’s because a so-called vaccination court had already been set up to handle claims and compensate those hurt by the vaccine.

But even though Wyeth-Pfizer won in the circuit court, it wants the U.S. Supreme Court to hear the case, as does the Obama administration, according to the Pittsburgh Tribune-Review.