Medical Malpractice In The News (Week of 6/18/2018) - The Sanders Firm
24/7 | Se hablo espanol Call 516.741.5252

Medical Malpractice In The News (Week of 6/18/2018)

The Sanders Firm stays current on medical malpractice in the news and publishes its take on medical negligence news stories so that millions of healthcare patients can connect to reliable information.

Let’s glance at this week’s medical malpractice news….

  1. Iowa Jury Awards Plaintiffs $29M In Medical Malpractice Damages

On June 13, just over three years after the estate for Iowan housewife Carrie DeJongh filed a medical negligence lawsuit against the Sioux Center Community Health Center, a jury awarded an unprecedented twenty-nine million dollars in damages to the grieving plaintiffs.  

DeJongh died while undergoing a CT scan from Dr. Roy T. Slice, an emergency care physician who worked at the healthcare facility.

Medical Negligence Arises During Standard Exam

During a procedural CT scan in 2015, Dr. Slice injected DeJongh with a contrast solution that brought about an immediate anaphylactic reaction; the patient lost consciousness and went into shock soon after exposure.

Instead of administering Epinephrine to regress DeJongh’s hypersensitivity, the physician gave her Benadryl, a drug used to treat rashes and hives.  

Nearly an hour passed before the health center gave Epinephrine to DeJongh, but by that time, her heart had stopped beating and she slipped into a coma.

The patient suffered severe brain damage that same evening, and she passed away the next day.

Doctor Failed to Offer Competent and Skilled Healthcare

The plaintiffs in this case asserted argued Dr. Slice didn’t perform as a reasonable competent physician would have under similar circumstances when he carelessly ignored giving Epinephrine to DeJongh.

Expert testimony during the trial further established DeJongh would have most likely survived if her doctor had not prescribed Benadryl and had injected her with the correct life-saving drug.

Steep Malpractice Award Surprises Overconfident Defendants

The defendants went on record suggesting a conservative Iowan jury would only grant the plaintiffs minute legal damages, if any, since the parties had multiple opportunities to settle before trial.

In closing arguments, the defense further asserted the Iowa courts value future consortium damages (to compensate for loss of companionship and support) to fall between $50K and $100K.

Such an assertion surely backfired as the jury found the loss of a faithful partner and an excellent mother in Iowa is not cheap and was worth considerably more than the contentious defense argument suggested.

The defendants, who carry over $30 million in insurance, swore to appeal the verdict to finality immediately after the hearing.

Read more about Doctor Negligence here.

  1. Georgia Medical Board Suspends License of “Dancing Doctor” Accused of Malpractice.

In early June, Georgia dermatologist, Dr. Davis-Boutte, became semi-famous after filming herself singing and dancing while performing plastic surgeries; the doctor posted the videos on her YouTube channel that went viral shortly after. https://youtu.be/_RLFiyID4SA

The public labeled Dr. Boutte the “dancing doctor” after watching the physician sing the rap song “Cut it” while operating on a patient.

A later clip shows the doctor singing with surgical tools in hand but without gloves or a mask while leaning over an unconscious patient’s naked torso.

Dr. Boutte’s assistants collaborated by posing as back up dancers; the plastic surgeon has since deleted the videos.

Malpractice Lawsuit Follows Unprofessional Acts During Surgery

At least five malpractice lawsuits have emerged from Dr. Boutte’s imprudent performances in the operating room; the physician has settled four of the five complaints.

Plaintiffs who claimed medical negligence alleged the Atlanta doctor recklessly executed her duties, causing infections and disfigurement to their bodies and even brain damage.

Medical malpractice attorney, Susan Witt, who sued Dr. Boutte four times, says over one hundred potential plaintiffs have approached her office claiming they suffered similar harm while under the doctor’s scalpel.

Georgia Medical Board Preempts Further Medical Malpractice Claims

The law holds that every surgeon has a legal duty to give their patients skilled and competent care.

Georgia’s health authorities suspended Dr. Boutte’s medical license this week on that premise, holding the doctor would be a public health threat if state continued to allow her to practice medicine. https://media-beta.wsbtv.com/document_dev/2018/06/07/retrieveBoardOrder.do_11918015_ver1.0.pdf

While infrequent, doctors occasionally engage in inappropriate conduct during surgery, and when exposed, patients can sue physicians and the medical facilities where they work for the legal damages they cause.

  1. Strict Liability Reaches Pennsylvania Medical Negligence Claims

The Pennsylvania Supreme Court will decide this week if the courts can hold doctors practicing medicine in the state strictly liable for medical malpractice in situations where patients suffer known complications even after giving their informed consent. 

Informed Consent Irrelevant in Medical Malpractice Lawsuit

In 2012, Dr. Evan Shikora performed a laparoscopic hysterectomy on Lanette Mitchell and punctured her bowel during surgery.

Mitchell sued for medical malpractice, claiming Shikora’s performance was negligent; yet, the plaintiff never asserted that Dr. Shikora didn’t reveal the potential dangers of hysterectomy surgery to her or failed to obtain her informed consent.

The trial court allowed Dr. Shikora’s expert witnesses to testify bowel perforation was a normal risk in hysterectomy surgery.

The plaintiff objected and the lower court judge overruled, prompting the jury to find for Dr. Shikora. https://law.justia.com/cases/pennsylvania/superior-court/2017/384-wda-2016.html

Pennsylvania Superior Court set aside the lower court’s verdict, ruling that judges must not allow expert witnesses to testify on the recognized dangers of medical procedures when patients already know the complications exist.

High Court Will Decide On Malpractice Precedent

Dr. Shikora now wants the state’s highest court to overturn the appellate ruling, arguing testimony on a procedure’s surgical risks is admissible because it proves the doctor followed accepted standards of care, and hearing such evidence does not inherently mislead juries as the plaintiff suggests.

The defense further asserts, holding physicians strictly liable after they prudently execute procedures where complications stem from beyond the physician’s control will force healthcare professionals to stop performing these types of surgeries.

A high court affirmation would imply changes are on the horizon in Pennsylvania medical negligence laws and in state informed consent doctrines.

Malpractice Lawsuits Shift From Negligence to Strict Liability

Healthcare professionals believe an affirmative ruling would further increase court-clogging medical malpractice lawsuits and would discourage physicians from practicing medicine in the state.  

Consumer advocates applauded the lower court’s decision, claiming victims of malpractice can now sue healthcare officials for any complication arising from surgery or for unavoidable dangers stemming from conventional medical procedures.

The way things stand now in Pennsylvania, physicians hold strict liability when involuntary complications arise during surgery, and patients can recover damages without proving negligence, even when doctors use the utmost care.

  1. Florida Supreme Court Defines What Is Medical Malpractice

The Florida Supreme Court affirmed not every healthcare related injury is medical negligence.

On Thursday, the high court attempted to sort out how lower courts should discriminate between claims of medical malpractice and ordinary negligence.

These questions are important in Florida because state statutes make it tougher for lawyers to litigate medical malpractice cases compared to regular negligence lawsuits. 

Medical Malpractice vs. Negligence in Florida

Florida plaintiffs who claim medical malpractice in their complaints must adhere to rigid and complex civil procedure rules to prevail in holding doctors or healthcare facilities liable for their careless acts.  

This includes sending a pre-suit notice to the defendants and to the state’s Department of Health, where the agency decides if the reckless conduct warrants any medical license suspensions.

Plaintiffs must also wait ninety days before filing a malpractice lawsuit so defendants can assess the patient’s claims; during this wait period, the defense may offer to settle or may ask for arbitration. If a defendant replies, the plaintiff must respond within 30 days.

Defendants may further delay medical malpractice proceedings by entering informal pre-trial discovery; in such case, the defense can ask for time-consuming, non-binding written interrogatories and seek unsworn statements from witnesses.

Negligence lawsuits are simpler to litigate. There is no state mandated pretrial waiting period, and plaintiffs have four-years to bring their complaint compared to the two-year statute of limitations on medical malpractice claims.

Court Dismisses Ordinary Negligence Complaint

In 2008, Cinnette Perry took residence at the National Deaf Academy, a healthcare facility that treats autistic or deaf people suffering from psychiatric or behavioral complications. https://law.justia.com/cases/florida/supreme-court/2018/sc16-1587.html  

Perry was bipolar and possessed explosive behavioral disorders, which sometimes required staff members to restrain her physically; yet, hospital policy required that before such restraint can occur, senior staffers at the clinic must provide their consent.

After returning to the academy one night, Perry became hysterical and started throwing rocks on property and at staff members.

The nurse on duty decided to subdue her without permission from her superior; Perry resisted and collapsed, causing her to suffer a dislocated knee that later called for an amputation.

Perry’s estate brought an ordinary negligence lawsuit against the academy; at trial the defense submitted a motion to dismiss, arguing the claim was medical malpractice and fell out of compliance with mandatory pre-trial procedures.

The trial court ruled the plaintiff’s claim was a genuine medical malpractice complaint and dismissed the case.

Appellate Court Limits Malpractice Lawsuits

Florida’s Fifth District Court of Appeal quashed the lower court’s decision, holding the complaint was ordinary negligence because some actors who harmed Perry were non-medical personnel (i.e. sign language interpreters); thus, the trial court could not exclusively rule the claim as medical malpractice.

The defense argued the appellant court’s decision conflicted with stare decisis and subsequent legal doctrines; a petition to the Florida Supreme Court soon followed. 

High Court Scrutinizes Ordinary Negligence from Medical Malpractice

The Supreme Court unanimously held Perry’s case was an ordinary negligence claim and not medical malpractice.

In its opinion, the Court set grounds for its lower courts to decide similar controversies by affirming malpractice claims must directly relate to negligence from medical care or healthcare services by competent and skilled medical professionals.

The court further held the legislative purpose for implementing the state’s complex pre-suit malpractice procedures was to encourage prompt settlement and to screen out frivolous lawsuits; thus, lawmakers never intended plaintiffs who bring claims of ordinary negligence to undergo complicated litigation.