Overlawyered: Chronicling The High Cost Of Our Legal System

Posts Tagged ‘hospitals’

$30M verdict against doctor for saving patient’s life?

Sally Lucia was suffering from a massive infection, apparently from an earlier tummy-tuck surgery twenty days earlier. (She settled with the plastic surgeon before trial.) Lucia went to the emergency room already in septic shock, with her fingers and feet turning blue. On-call surgeon Dr. George Haedicke left his children, and arrived at the hospital to find Lucia’s infection so far advanced that her organs were shutting down; he cared for her for four and a half hours, and other doctors removed a grapefruit-sized infection from Lucia’s abdomen before transferring her to another hospital in critical condition. By this time, the tissue below her calves and in her fingers had died, and she needed amputations. A jury found Haedicke 20% responsible and his hospital 40% responsible, awarding $30 million in damages. But the jury found that Haedicke did not act with reckless disregard, immunizing him under Florida law protecting emergency doctors. Lucia, subject to appeal, will have to make do with $12 million from the hospital plus her earlier settlement. (Thomas W. Krause, “Patient Wins $30 Million”, Tampa Tribune, May 25; Justin George and Colleen Jenkins, “Amputee Wins $30 Million”, St. Petersburg Times, May 26; Colleen Jenkins, “Jurors hear from both sides in amputee trial”, St. Petersburg Times, May 10).

Press coverage is scanty on the critical question, but the Tampa Tribune Haedicke ordered “medicine that focused blood flow to the inner part of her body to protect her vital organs.” As a result, Lucia lost her legs and most of her hands, but her life was saved. Lucia’s attorney, Steve Yerrid (Oct. 5-6; Jan. 27), claims that Haedicke should have administered fluids before the medicine; Haedicke says that Lucia would have died if he had administered fluids first because her kidneys would have failed.

Now, I don’t know whether Haedicke or Yerrid is correct (though I have my suspicions). I’d be curious to hear what the medical bloggers think. But I don’t see how this should be a jury question. Either it was a reasonable exercise of medical judgment to try to save Lucia’s life without administering fluids first or it wasn’t, with the question of liability being a natural result of that answer—one of the two experts in the case is lying, and the expert and attorney who propounded that testimony did so without consequence.

Haedicke has left Tampa to practice in Tallahassee.

(Update: there has been some med-blogging over the Memorial Day weekend. Clinical Cases; Kevin MD.)

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May 1 roundup

  • Jack Thompson, call your office: FBI search turns up no evidence Virginia Tech killer owned or played videogames [Monsters and Critics]

  • How many zeroes was that? Bank of America threatens ABN Amro with $220 billion suit if it reneges on deal to sell Chicago’s LaSalle Bank [Times (U.K.), Consumerist]

  • Chuck Colson will be disappointed, but the rule of law wins: Supreme Court declines to intervene in Miller-Jenkins (Vermont-Virginia lesbian custody) dispute [AP; see Mar. 2 and many earlier posts]

  • Oklahoma legislature passes, but governor vetoes, comprehensive liability-reform bill [Point of Law first, second, third posts]

  • Good primer on California’s much-abused Prop 65 right-to-know toxics law [CalBizLit via Ted @ PoL]

  • “Defensive psychiatry” and the pressure to hospitalize persons who talk of suicide [Intueri]

  • Among the many other reasons not to admire RFK Jr., there’s his wind-farm hypocrisy [Mac Johnson, Energy Tribune]

  • “Screed-O-Matic” simulates nastygrams dashed off by busy Hollywood lawyer Martin Singer [Portfolio]

  • “Liability, health issues” cited as Carmel, Ind. officials plan to eject companion dogs from special-needs program, though no parents have complained [Indpls. Star; similar 1999 story from Ohio]

  • First glimmerings of Sen. John Edwards’s national ambitions [five years ago on Overlawyered]
(Edited Tues. a.m. to cut an entry which was inadvertently repeated after appearing in an earlier roundup)

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Walk away

Yesterday’s Daily Business Review brought us the story of lawyers running wild in worker’s compensation cases. Today, it provides another outrageous story of legal abuses, in a $3 million medical malpractice lawsuit:

Miami-Dade Circuit Judge Gisela Cardonne Ely was shocked. She had just watched a videotape of a medical malpractice plaintiff, who claimed in 2004 that she was permanently paralyzed, walking down the street with the use of a cane in 2005.

“This is the worst case of misrepresentation, of outright fraud, that I have ever had in 22 years,” Cardonne Ely said during a March 15 hearing in the case of Wanda Davis-Johnson. “I’m telling you, Mrs. Davis, I’m looking at you in the eyes. I am dismissing your case. I have seen enough. … I’m making a specific finding that there was a scheme to defraud the court.”

The woman’s attorney, of course, claims to be just as surprised as the judge. Meanwhile, the vindicated defendant hospital “will be seeking to recover $225,000 in legal costs from Davis-Johnson,” but one suspects that the odds of ever collecting that are somewhere between none and less than none.

What’s unusual about this story is that the hospital’s attorneys obtained this damning evidence in April 2005, but did not reveal it until almost two years later, in January 2007. According to the hospital’s attorneys, they were afraid that the videotape wouldn’t be sufficient to prove fraud on the part of the plaintiff. (What does it say about the system if a videotape showing an allegedly paralyzed person walking is insufficient to prove fraud?)

The plaintiff’s lawyers complained about the delay:

“If they had shown that videotape to us, we wouldn’t have spent another 21 months of litigation time, cost, stress to the doctors involved and waste of the court’s time,” Lawlor said. “I don’t have any clue what they were thinking or why anybody would go forward other than to try to set a trap for my law firm.”

But despite this, when confronted with the evidence, Lawlor didn’t exactly roll over and admit error:

But Lawlor and his law firm did not withdraw from the case or ask that the case be dismissed. Lawlor unsuccessfully argued against the defense motion to dismiss based on fraud. He also filed errata sheets to Davis-Johnson’s two depositions seeking to change her testimony.

The only thing he did do was drop his motion for punitive damages based on the allegedly “egregious” actions of the hospital.

Family reunions ought to be interesting, anyway; according to the story, the hospital’s lawyers got confirmation of the fraud when the plaintiff’s sister-in-law called up and told them.

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“Laws Limit Options When a Student is Mentally Ill”

WashingtonPost.com’s “Think Tank Town” feature has a symposium on the policy implications of the Virginia Tech massacre, including contributions from Ted on fear of litigation and from me on the legal constraints on universities faced with problem students, as well as from Jim Copland (Point of Law, Manhattan Institute) on gun control.

This morning’s New York Times (Apr. 19) includes a must-read article by Tamar Lewin spelling out in more detail the problems I refer to in my short commentary. Writes Lewin:

Federal privacy and antidiscrimination laws restrict how universities can deal with students who have mental health problems.

For the most part, universities cannot tell parents about their children’s problems without the student’s consent. They cannot release any information in a student’s medical record without consent. And they cannot put students on involuntary medical leave, just because they develop a serious mental illness….

Universities can find themselves in a double bind. On the one hand, they may be liable if they fail to prevent a suicide or murder. After the death in 2000 of Elizabeth H. Shin, a student at the Massachusetts Institute of Technology who had written several suicide notes and used the university counseling service before setting herself on fire, the Massachusetts Superior Court allowed her parents, who had not been told of her deterioration, to sue administrators for $27.7 million. The case was settled for an undisclosed amount.

On the other hand, universities may be held liable if they do take action to remove a potentially suicidal student. In August, the City University of New York agreed to pay $65,000 to a student who sued after being barred from her dormitory room at Hunter College because she was hospitalized after a suicide attempt.

Also last year, George Washington University reached a confidential settlement in a case charging that it had violated antidiscrimination laws by suspending Jordan Nott, a student who had sought hospitalization for depression….

Last month, Virginia passed a law, the first in the nation, prohibiting public colleges and universities from expelling or punishing students solely for attempting suicide or seeking mental-health treatment for suicidal thoughts.

The article also refers to the role of the Buckley Amendment (FERPA), the HIPAA medical-privacy law, and disabled-rights law, which prohibits universities from inquiring of applicants whether they suffer serious mental illness or have been prescribed psychotropic drugs. Incidentally, the Allegheny College case, in which a Pennsylvania college came under fire for not notifying parents about their son’s suicidal thoughts, was discussed in a W$J article last month: Elizabeth Bernstein, “After a Suicide, Privacy on Trial”, Mar. 24. And Mary Johnson suspects that HIPAA will turn out to have played a role in the calamitous dropping of the ball regarding Cho’s behavior (Apr. 18). More: Raja Mishra and Marcella Bombardieri, “School says its options were few despite his troubling behavior”, Boston Globe, Apr. 19; Ribstein.

And: How well did privacy laws/policies work? Why, just perfectly:

Ms. Norris, who taught Mr. Cho in a 10-student creative writing workshop last fall, was disturbed enough by his writings that she contacted the associate dean of students, Mary Ann Lewis. Ms. Norris said the faculty was instructed to report problem students to Ms. Lewis.

“You go to her to find out if there are any other complaints about a student,” Ms. Norris said, adding that Ms. Lewis had said she had no record of any problem with Mr. Cho despite his long and troubled history at the university.

“I do not know why she would not have that information,” she said. “I just know that she did not have it.”

(Shaila Dewan and Marc Santora, “University Says It Wasn’t Involved in Gunman’s Treatment”, New York Times, Apr. 19). And Barbara Oakley, a professor at Oakland University in Michigan, has an op-ed in today’s Times, recounting her experience with a disturbing student: “It must have seemed far more likely that Rick could sue for being thrown out of school, than that I — or anyone else — could ever be hurt.” (“The Killer in the Lecture Hall”, Apr. 19). The tease-quote from the Times’s editors: “Do universities fear lawsuits more than violent students?”

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April 19 roundup

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Ready, aim, fire… get sued

Given Walter’s mention of the EEOC’s new attempt to solve America’s chronic shortage of employment litigation, this covery story from Business Week is timely. It surveys the state of employment litigation in the U.S., describing how risky it is for companies to fire employees, and the six figure price tag associated with the lawsuits that often result. The article discusses the growing trend in suing over “retaliation” claims:

As it happens, the judge in Mody’s case tossed out his discrimination claims. But the retaliation allegation did go to the jury—a development that is increasingly blindsiding businesses. Plaintiffs are winning large sums not because a company discriminated against them, but because the company retaliated when they complained about the unproven mistreatment.

The rules surrounding retaliation may sound crazy, but they are one of the big reasons why the fear of firing is so prevalent. Retaliation suits are a hot growth area in employment law. In 2005 and 2006, retaliation claims represented 30% of all charges individuals filed with the Equal Employment Opportunity Commission, a required first step before most discrimination cases can go to federal court. That’s up from about 20% just 10 years ago. “Even if there isn’t a good discrimination claim, the employee has a second bite at the apple,” notes Martin W. Aron of defense firm Edwards Angell Palmer & Dodge in Short Hills, N.J.

Read On…

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Sued if you do, sued if you don’t.

Hospital X was grossly — if not criminally — negligent, and you ought to award zillions of dollars in punitive damages for their misconduct! Consider this list of sins: this hospital knew that its surgeon was mentally ill. He had been diagnosed with bipolar disorder, and they knew it. He had been locked up in mental institutions at least twice before. The danger here was very real. Don’t let them try to claim they didn’t foresee danger. Why, once when that surgeon was operating on a patient, multiple witnesses will tell you that he “became disoriented during the surgery, forgot the names of certain instruments and at one point appeared to be talking to the wall!” Even after he was treated, two different psychiatrists who evaluated him refused to unequivocally state that he was competent. And they let him continue to operate on vulnerable patients. Without any supervision. Even though they knew he had a history of failing to take his medication.

Well, that would be the summary of my argument to the jury if the surgeon in question botched my poor client’s operation and left him permanently injured. So a hospital would have to be crazy to let this state of affairs go on, right?

Right. Except that when Wyoming Valley Health Care System decided not to take any chances, and refused to let mentally ill surgeon Jonathan Haas operate without supervision, he sued the hospital in federal court for violating the Americans with Disabilities Act. And this week, a Pennsylvania jury awarded $250,000 to Haas for this violation of his rights. That’s the case, even though the Americans with Disabilities Act ostensibly has an exception for situations where employing the disabled person would be a threat to the health or safety of other people.

Haas’s complaint was that since he couldn’t find anybody to supervise him, the hospital’s condition effectively prevented him from acting as a surgeon. (Oddly, once this happened, Haas moved on to a hospital in Minnesota which imposed exactly the same supervisory requirement on him, which he accepted. But neither the judge nor jury found that relevant to the question of whether the requirement was reasonable.)

In short, the hospital had the choice of risking a patient’s life and being sued for malpractice, or restricting the privileges of the surgeon and being sued for discrimination. (And we know that had a patient sued for malpractice, the hospital couldn’t possibly have defended itself by pointing to the requirements of the ADA and saying that it was forced to employ the surgeon.)

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Mark A. McLeod v. Mt. Sinai Medical Center briefing

We’ve previously reported on this case and the underlying Hollins v. Jordan $30 million trial verdict (in 2004 on Nov. 20, Oct. 11, and Aug. 31) blaming an obstetrician and hospital for microcephaly in a four-pound, five-ounce birth. The case is scheduled to be heard by the Ohio Supreme Court May 23, and the more recent briefing is on line; the Dr. Jordan merits brief is especially interesting. Of note, and not previously mentioned:

  • Plaintiffs attorney Geoffrey Fieger has already twice asked the entire Ohio Supreme Court to recuse itself.

  • Plaintiffs are seeking $50 million in prejudgment interest.

  • The claim that the caesarean was delayed is entirely bogus; plaintiffs’ experts deliberately confused the “emergency” (i.e., non-scheduled) caesarean with a “crash” caesarean.

  • Plaintiffs sandbagged the damages claim by claiming before trial they would only seek $4 million, and then changing the estimates on the stand by making hypothetical assumptions not supported by any expert evidence.

  • Fieger’s opening argument regularly made references to evidence excluded in limine.

  • Fieger had an anesthesiologist opine on neurological matters.

  • Fieger’s prejudicial conduct at trial, including race-, religion-, and class-baiting, has to be read to be believed. How there wasn’t a mistrial or a revocation of pro hac vice status is jaw-dropping.

  • Counsel of record for two of the co-defendants is Drug and Device Law co-blogger Mark Herrmann.

Again, the lengthy dissent in the appellate court is worth reading.

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Guess what it isn’t about?

Last month, Mohammed A. Hussain went to the University of Maryland Medical Center in Baltimore for a medical procedure. Before it began, he wanted to pray; he alleges he was mistreated by a hospital security guard, who “proceeded to manhandle him, yell racial epithets at him, push him down the corridor and order him to exit the hospital.”

So, on Friday Hussain filed a $30 million lawsuit, alleging assault, battery and the ubiquitous emotional distress. But (you guessed) it:

Hussain’s attorney, David Ellin, said his client sued the hospital because he did not think executives were taking his case seriously enough.

“He felt the only way to get their attention and make any changes was to really put their feet to the fire and file a lawsuit,” Ellin said.

Ellin said Hussain’s aim with the suit is not to win compensation but to raise awareness about Islam and religious prejudices.

“This is really done to try to educate people on the religion of Islam and make people more tolerant and just educate them on different religious backgrounds,” Ellin said.

And if he happens to also get $30 million for it, hey, so much the better.

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