Medical Malpractice Suit Filed Over Delivery-Decapitation Death


Posted on 15th January 2013 by gjohnson in Uncategorized


Here’s a nightmare out of a horror movie for you: A Missouri couple are suing an obstetrician who they allege decapitated their baby during a botched birth, according to Courthouse News Service.

The malpractice lawsuit was filed in St. Louis County Circuit Court by Arteisha Betts and Travis Ammonette against defendants including Dr. Gilbert Webb. The hospital where the incident took place, St. John’s Mercy Medical Center, was not named as a defendant in the litigation.

The suit charges that in March 2011 Betts came to the hospital when she started having preterm contractions. Although one doctor two weeks prior had said that Betts would need a cesarean section because of the baby’s large girth, Webb still insisted that Betts have a vaginal birth, Courthouse News reported.

But the baby, Kaden Travis Ammonette, got stuck in the mother’s birth canal. When Webb was trying to dislodge the baby, the doctor allegedly applied too much pressure and separated the infant’s head from its cervical spine.

In this gruesome scene, the lawsuit says that blood from the baby’s neck shot all over the hospital floor, in front of the parents. To top that horror off, Webb allegedly then pushed the baby’s head and body back into the birth canal and said that a cesarean was necessary, according to Courthouse News. She as wheeled to an operating room.

Even before the mother Betts was given an anesthetic, the suit charges, Webb cut into her abdomen to make the incision for the procedure.

Courthouse News quoted from the lawsuit, saying, “During the course of the cesarean section, defendant Webb surgically and completely removed decedent Kaden Travis Ammonette’s head from his neck and torso.”

I have to ask you: Should there be a cap on any jury awards in that case?

Two Anti-Patient Medical Malpractice Bills Pass In Michigan


Posted on 26th December 2012 by gjohnson in Uncategorized

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Michigan this month passed two bills reforming medical malpractice rules, and the consumer winds up the loser in that state. Ironically, the legislation was part of a “Patients First Reform Package.”

Senate Bill 1115 limits the amount of malpractice damages that can be awarded to victims, and it passed with a wide margin, namely a 108-2 vote in the state Senate.

Senate Bill 1118 decreases the time limit that a person or family has for suing on someone who is deceased, and also bars prejudgment interest on attorney fees and costs. It flew through the Senate in a 107-3 vote, according to Michigan Live Media Group.

Mag Mutual, a medical professional liability insurer, also issued a press release on the legislation, which benefits its industry.

The two anti-patient bills that passed were criticized by Marc Lipton, the Southfield attorney who is president of the Michigan Association for Justice, a trial lawyers group.

“I’m disappointed that the Legislature spent all this time on bills that were designed to protect insurance companies and ultimately would endanger patients,” Michigan Live Media Group quoted him as saying.

Exactly so.

There were actually four malpractice bills under consideration in Michigan, and only two of them made it to a vote. Of the bills that didn’t make it, one sought to expand the types of health care professionals that can be sued for medical malpractice. The Senate approved it but it never made it to a vote in the Senate.

The other bill, left hanging in committee, mandated that a medical facility and or health care professional couldn’t be sued for malpractice “if the doctor acted with reasonable and good-faith belief that the conduct was well-founded in medicine and the patient’s best interests,” Michigan Live Media Group reported.   



Florida Jury Clears Nurse In Brain Injury Malpractice Case


Posted on 19th December 2012 by gjohnson in Uncategorized

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It looks like no one is going to be held legally responsible in this sad scenario.

A Florida jury Monday cleared a nurse of any liability in a lawsuit stemming from a case where a child sustained permanent brain injury after coming to an emergency room with flu-like symptoms, according to

The $65 million medical malpractice suit was filed in 2009 by the parents of Milan Carvelli, 9, of Vero Beach. Following a three-week trial, the jury found that emergency room nurse Vicki Marchand of Indian River Medical Center “didn’t contribute to the child’s medical problems,” TCPalm reported.

The hospital had already reached a settlement of the suit for what was described as a “small, undisclosed amount of money.”

The suit alleged that the girl was brought to the emergency room on Feb, 4, 2008, vomiting and unnaturally thirsty. She was diagnosed with pediatric diabetic ketoacidosis, according to The child’s doctor directed that the child be transferred to a hospital that was equipped to deal with that ailment, but  inclement weather delayed the child’s transfer to Arnold Palmer Hospital in Orland, reported.

The malpractice suit had alleged that Marchand didn’t realize until it was too late that fluid was building up on the child’s brain, according to The girl had to be resuscitated, and had sustained brain injury.  Now she has developmental issues, partial paralysis in her right arm and hand, and has a limp.

The family’s lawyers had sought $65 million in damages, saying that $40 million would cover the girl’s continued medical care, reported.

The jury thought differently.


Tennessee ER Doctors Don’t Need Special Protection From Malpractice Suits


Posted on 1st April 2012 by gjohnson in Uncategorized

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In Tennessee, emergency room doctors may soon be given extra protection from malpractice suits, legislation that doesn’t leaves physicians culpable enough for their actions and mistakes.

Under the pending legislation, a patient in Tennessee would have to meet a pretty high test, proving gross negligence by a doctor in an ER, in order to bring a successful malpractice case, according to a recent story in the Johnson City Press.

The bill’s sponsors are two Republicans, Rep. Glen Casada and Sen. John Jackson, and they have trotted out the usual justification for this type of malpractice legislation: That it will put a damper of frivolous lawsuits and therefore help keep health care costs down.

Opponents of the bill, who I agree with, include the Tennessee Association for Justice. In the Johnson City Press, the president of the association, Keith Williams, maintains that under the proposed law, if you went to an ER with chest pains and were diagnosed with bronchitis — but then went home and died of a heart attack — your survivors would have no legal recourse.

As the the Association for Justice points out, ER doctors are already protected from frivolous malpractice suits in Tennessee. As the law stands now,  if ER doctors provide care “that is consistent with standards set by their peers” they would not be liable in a malpractice case, Johnson City Press reported.

Opponents of the pending Tennessee legislation are also disturbed, rightfully so, that the bill also provides extra protection to surgeons whose patients are admitted through the ER.

Even though an estimated 98,000 people die in Tennessee each year due to medical errors, the state seems to be bending over backwards to help doctors, not patients.

As the Johnson City Press pointed out, last year Tennessee legislators passed a law that limits non-economic damages, including pain and suffering, at $750,000 for medical malpractice cases. Punitive damages were capped at $500,000.

At first blush, $750,000 might sound like a lot of money. But if your spouse, or parent, or child died because of a doctor’s negligence, you wouldn’t think that $750,000 is enough for a life.

State lawmakers have already given the Tennessee medical community too much protection. They should not dole out any more breaks to doctors.


Two Brain Injury Verdicts Make Top 10 List For 2011


Posted on 21st January 2012 by gjohnson in Uncategorized

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Lawyers USA’s list of the Top 10 Jury Verdicts in 2011 includes two cases involving traumatic brain injury, with one of them regarding Botox.  

The unusual Botox case resulted in a $212 million award against Allergan, which makes Botox, by a federal jury in Virginia last April. The sad part is that Virginia has a state cap on punitive damages, which could knock down the jury’s $200 million in punitive damages to just $350,000, according to Lawyers USA.

The Botox case involved Douglas Ray Jr., 67, who had developed hand tremors ever since his return from Vietnam. Ray’s doctor told him to get Botox treatments for his hand. After his third visit and injection, Ray first got a rash, then appeared to be confused and eventually sustained brain damage, according to Lawyers USA. Now he can’t walk, talk or feed or dress himself.

Ray’s lawsuit charged that Allergan failed to warn him about the risks of Botox. In Ray’s case, apparently the active ingredient in Botox —  botulinum toxin type A, made from botulism — moved from his arm muscle to his bloodstream and traveled to his brain.      

Botox doesn’t have Food and Drug Administration approval to be used to treat hand tremors, according to Lawyers USA. In fact, last year Allergan forked over $600 million in fines for marketing Botox for off-label uses.

The second case on Lawyers USA’s Top 10 List involving brain damage was a $144 million verdict for the birth of a baby who developed cerebral palsy. The lawsuit involved the botched birth of Kimberly VanSlembrouck’s daughter at William Beaumont Hospital in Michigan. It  charged that her baby should have undergone a Caesarian, not a vaginal, birth.

According to Lawyers USA, VanSlembrouck had gained a lot of weight during her pregnancy, and her doctor should not have risked her doing a vaginal birth. Markell, the newborn girl, suffered serious injuries coming through the birth canal, including three brain hemorrhages, Lawyers USA reported. She was purple with bruises.

The hospital did testing on Markell after she was born, and found that she had abnormal brain development, which it later blamed on a genetic condition called pontocerebellar hypoplasia.   

After being in intensive care for three weeks, doctors determined that Markell had cerebral palsy secondary to birth trauma, according to Lawyers USA.   

The girl is a 15-year-old now, and can’t walk or talk. She needs 24/7 care and assistance doing everything from eating to dressing.

After a three-week trial, the Michigan jury granted the $144 million award. It looks like it didn’t buy the hospital’s gambit that Markell’s medical problems were genetic.

First Driver Distraction, Now ‘Doctor Distraction,’ Threatens Lives


Posted on 16th December 2011 by gjohnson in Uncategorized

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Distracted driving had been a hot topic this year, with states and federal officials passing laws banning the use of cellphones and texting by drivers. But these devices are now being blamed for causing “distracted doctoring,” with physicians and nurses being accused of paying more attention to their new-media gear than their patients.

The New York Times Thursday outlined the problem in a Page One story, where it reported that “some hospitals have begun limiting he use of devices in critical settings, while schools have started reminding medical students to focus on patients instead of gadgets.”

The Times quoted an official from the University of Rochester Medical Center who was disturbed by the doctors and nurses that he has spotted using iPhones, iPads and computers. That official, Dr. Peter Papadakos, authored a recent article on “electronic distraction” for Anesthesiology News, according to The Times.

Another article in the medical journal Perfusion talked about research that found roughly half  of the techs who are in charge of bypass machines had chatted on their cellphones and texted during heart surgery.

If you believe these fears about doctor distraction are overstated, try this on for size. In Denver a patient whose left side became partly paralyzed after surgery filed a medical malpractive suit, The Times reported. Guess what the neurosurgeon was doing during the surgery? Talking on his cellphone via a wireless headset. The case was settled before trial.

In another eyebrow-raising anecdote, a doctor at Yale-New Haven Hospital told The Times that he has seen youthful anesthesiolgists in the OR using a compuer during surgery, for tasks such as checking their email. In the intensive care unit, this doctor has seen his colleagues use computers to shop on Amazon and eBay.

A hospital in Oregon, according to The Times, has made operating rooms “quiet zones” that prohibit multi-tasking that isn’t specificaly related to a patient.

As many of the doctors quoted by The Times said, computers and iPads are a boon that can help prevent errors by giving physicians immediate access to patient records and data.

But the patient must not be neglected while doctors fiddle with these devices during surgery.            

Illinois Hospital To Pay $7.5 Million Settlement For Girl With Cerebral Palsy


Posted on 4th December 2011 by gjohnson in Uncategorized

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The grandparents of a 9-year-old girl who got cerebral palsy as the result of alleged malpractice at Christ Medical Center in Oak Lawn, Ill., will get a $7.5 million settlement, according to the Southtown Star.

 Advocate Health and Hospitals Corp., parent company of Christ Medical, agreed to the settlement of a lawsuit filed by Tom and Donna Tribble, legal guardians for Elliana Tribble. The suit, filed in 2009, alleged that the physicians and nurses at Christ Medical “delayed in responding to signs of fetal distress before” Elliana’s birth in August 2002, the Southtown Star reported Friday.

Elliana sustained brain damage from oxygen deprivation during her birth, and has cerebral palsy.

Under the settlement, the hospital does not admit any malpractice on the part of its staff, according to the Southtown Star. 

Tom and Donna Tribble, who live in Northbrook, Ill., are the parents of Elliana’s father, Sean Tribble. Sean and Joan Soka, Elliana’s parents, never got married, and the grandparents got custody of the child.

Elliana is disabled and in a wheelchair. Her grandparents told the Southtown Star that they will take part of the settlement to buy her a wheelchair that she will be able to steer with head movements and to make the doors in their home handicapped accessible.   


Family Awarded $1 Million From Medical Examiner’s Office That Kept Their Son’s Brain


Posted on 27th November 2011 by gjohnson in Uncategorized

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Justice sometimes does triumph.

A Staten Island, N.Y., couple has won a $1 million judgment against the New York City Medical Examiner’s Office, which retained their dead son’s brain without their permission or knowledge, the New York Post reported Saturday.

In a macabre twist in an already freaky case, the parents of Jesse Shipley, 17, didn’t discover that they didn’t have his brain until some of his high school friends saw it in a marked jar during a field trip to Staten Island’s morgue.

Jesse was killed in a car crash in January 2005, and was autopsied by the local medical examiner. But the Medical Examiner’s Office returned Jesse’s body to his parents for burial without his brain, without mentioning that little tidbit to the Shipley family. Doctors wanted to perform tests on the organ, according to the Post.

Jesse’s family only learned that their son’s body was missing its brain when they buried it because of the shocking incident during the field trip. That when Jesse’s schoolmates chanced upon his brain in the jar, the Post reported.

Needless to say, the teens told Shipley’s surprised family what they had seen. If that wasn’t disturbing enough, “a Catholic priest told the family that Jesse’s burial wasn’t proper without his brain,” according to the Post.

The family didn’t get the brain back until October 2005, and they subsequently filed suit against the Medical Examiner’s Office. The city was liable, according to a Staten Island Supreme Court judge, under the so-called right of sepulcher, which says that a family is entitled to all the remains of a relative, according to the Post.

The defense didn’t have a leg to stand on. The city apparently contended that Jesse’s father Andre Shipley “would have known his son’s brain were being kept for further testing if he’d known to ask,” the Post reported.


It probably didn’t help the defense’s case, either, when a medical examiner said he keep Jesse’s brain hanging around in a jar because he waits until he has a half dozen brains before calling in a neuropathic examiner to study them, the Post said.

We hope in those other cases that the families knew their loved one’s brains had been withheld from them, unlike the Shipleys.

The Shipleys did lose one legal acton last year, when the family sued claiming that their son’s brain had been displayed unlawfully. An appellate court threw that claim out, the Post reported.     


Two Reports Explain Why Medical Malpractice Caps Hurt Consumers


Posted on 19th November 2011 by gjohnson in Uncategorized

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Despite the rheroric of many lawmakers and the misconceptions of the public, putting caps on medical practice cases doesn’t hold down spiraling health care and insurance costs, according to two recent reports on the topic.  

“A Failed Experiment: Health Care in Texas Has Worsened in Key Respects Since State Instituted Liability Caps in 2003,” done by the public advocacy group Public Citizen, and “Can Mandatory Caps on Medical Malpractice Damages Harm Consumers?,” by the think tank the Cato Institute, were both released last month.

And they both come to somewhat similar conclusions, namely that medical malpractice awards don’t drive up the cost of health care.

But what is disturbing in these reports is that consumers, people who have been harmed and have a cause of action against a medical provider, are being short-changed because of the caps. In fact, even worse, they are losing their ability to sue as lawyers shy away from bringing litigation that is expensive to try, with little potential reward.

The Public Citizen report dealt with Texas, which set a $250,000 limit on noneconomic damages for medical malpractice suits in 2003.

“A common misconception among policymakers and pundits is that medical malpractice litigation is significantly, or even chiefly, to blame for our country’s skyrocketing health care costs and steadily diminishing access to care,” the report said. “Those who blame malpractice litigation for the broken economics of our health care system typically tout laws limiting physicians’ liability as the answer.”

But the data in Texas doesn’t bear that out, despite the claims to the contrary by Texas Gov. Rick Perry,  who spearheaded the legislation limiting cap awards, according to the Public Citizen report.

“While litigation over malpractice in Texas has plummeted dramatically since the caps were imposed, residents of Texas (except for people with financial connections to liability insurance companies and, to a lesser extend, doctors) have realized few, if any, benefits. Instead, the health care picture in Texas has worsened significantly by almost any measure,” the report said.         

Since the Lone Star State imposed the caps, its Medicare spending has outpaced the national average. 

“Per enrollee spending for Medicare’s two main programs ranked second-highest in Texas among the 50 states in 2009,” the report said. “In 2003, Texas ranked seventh … These figures contradict the theory that medical malpractice litigation is driving health care costs.”

In addition, premiums for private health insurors have risen and outpaced the national average. Oh, by the way, the percent of Texans who are uninsured has also increased, “solidifying the state’s dubious distinction of having the highest uninsured rate in the country,” according to the report.

In addition, the per capita increase in the number of doctors practicing in Texas has been slower than prior years, and “the prevalence of physicians in non-metropolitan areas has declined,” according to the report.

The cap in Texas appears to have been a boon to insurance companies and doctors. For one insuror, premiums for doctors were 50 percent less in 2010 versus 2003.  But the medical malpractice payments that insurors are issuing have dropped 74 percent, adjusted for inflation, from 2003 to 2010, the report said. That translates into a “windfall” for insurance companies, according to the report.

“But the benefits realized by these two groups have not translated into savings for regular Texans or for the taxpayers who  fund Medicare,” the report said.

The Public Citizen report is very detailed, and it all can’t be presented here. But one of the highlights is the section on health insurance premiums. Caps have not kept those costs down.

“Although health insurance costs in Texas have not outpaced national rates as dramatically as have Medicare expenditures in the state, they have risen faster than the national average since the caps were imposed,” according to the report. “Family health insurance premiums in Texas rose by 51.7 percent between 2003 and 2010. Nationally, they rose by 50 percent. Since 2004, health insurance premiums in Texas have risen 13.1 percent faster in Texas than nationally.”

Here are the report’s conclusions.

“Despite the sales campaign to promote Texas as an exhibit of the merits of limiting doctors’ liability for mistakes, the real world data tell the opposite story. Health care in Texas has become more expensive and less accessible since the state’s malpractice caps took effect.

The beneficiaries of the new system are the doctors who escape accountability for their errors and the liability insurance  companies that reap a windfall of inflated premiums. Regular Texans are the losers. They include not only the victims of medical malpractice who are deprived of the chance to recover damages but also the taxpayers who must foot the bill for the future medical costs of seriously injured patients.”

That conclusion is similar to the one made in the study by the Cato Institute, on whether mandatory caps on medical malpractice damages harm consumers. The executive summary of that report makes its position pretty clear.

“Supporters of capping court awards for medical malpractice argue that caps will make health care more affordable,” the Cato report said. “It may not be that simple.”

That’s the understatement of the year.

“First, caps on awards may result in some patients not receiving adequate compensation for injuries they suffer as the result of physician negligence,” the Cato report said.

“Second, because caps limit physician liability, they can also mute incentives for physicians to reduce the risk of negligent injuries,” the report added.

And contrary to what supporters of caps claim, “medical malpractice awards do track actual damages,” according to the Cato report.

But here is the heart of the matter, from the report.

“If the medical malpractice liability insurance industry does indeed protect consumers, then policies that reduce liability or shield physicians from oversight by carriers may harm consumers,” it said.

In its conclusion, the Cato report said that patients are protected by a interdependent system of oversight that includes evaluations, hospital oversight and the medical malpractice industry.

“Underlying nearly all of these activities is the threat of legal liability for negligent injuries,” the report said. “Reducing physician liability for negligent care by capping court awards, all else equal, will reduce the resources allocated to medical professional liability underwriting and oversight and make many patients worse off. Legislators who see mandatory liability caps as a cost-containment tool should look elsewhere.”



Only One In Five Malpractice Claims Ends Up In A Payout, Study Says


Posted on 20th August 2011 by gjohnson in Uncategorized

Despite the headlines politicans make denouncing frivolous lawsuits and large jury awards, a comprehensive study found that only about one in five malpractice claims against physicians results in some kind of payment. And neurosurgeons were at the greatest risk of being sued.

Those were some of the findings of a study that analyzed malpractice data from 1991 through 2005 for 41,000 doctors covered by a major insurer. The results of that study were published online last week by The New England Journal of Medicine, and made headlines across the nation.

The study determined that each year 7.4 percent of all doctors had a malpractice claim filed againt them, with 1.6 percent having a claim lead to a payment. Therefore, the study said, “78 percent of all claims did not result in payments to claimants.”    

One should cast a skeptical eye on the study, because only a small portion of patients harmed by doctors ever file malpractice suits. Such malpractice cases are expensive for a lawyer to bring to court, since he or she will have to hire expensive experts to testify on behalf of the plaintiffs, a big upfront cost. And such cases are taken on a contingency basis, which means an attorney risks walking away without any compensation if he or she loses the case.   

Nonetheless, the new study offers some interesting information. It found that the proportion of the medical specialties that each faced claims was: neurosurgery, 19.1 percent; thoracic-cardiovascular surgery, 18.9 percent; general surgery, 15.3 percent; family medicine, 5.2 percent;  pediatrics, 3.1 percent; and psychiatrt, 2.6 percent.

At first it was surprising that obstetrics wasn’t on that particular list. But then we read this part of the report.

“Outlier awards, which were defined as those exceeding $1 million, were infrequent, in part because the full size of outlier awards would not have been recorded if they had exceeded individual policy limits,” the report said. “Sixty six payments exceeded this amount, accounting for less than 1 percent of all payments. Obstetrics and gynecology accounted for the most payments (11).”  

The mean indemnity payment was $274,887 across all the specialties, and the median was $111,749. The study found that payments ranged from $117,832 for dematology to $520,923 for pediatrics. 

“Specialties that were the most likely to face indemnity claims were often not those with the highest average payments,” the study said. “For example, the average payment for neurosurgeons ($344,811) was less than the average payment for pathologists ($383,509) or for pediatricians ($520,924) , even though the neurosurgeons were several times more likely to face a claim in a year.”