Philadelphia Personal Injury Lawyer Blog

In Passarello v. Grumbine, the Pennsylvania Superior Court found no impediment to retroactive application of the holding in Pringle v. Rappaport in which it explored the history of the error in judgment rule and precluded its use in Pennsylvania on its basis of inconsistency with standard of care.  The error in judgment rule holds that a surgeon could be excused for his negligence by claiming that although in retrospect it appears he made errors during a procedure, he used his best judgment at the time and therefore did not violate the standard of care.

In Passarello, a three judge panel granted a new trial to the parents and estate of a two-month old baby who died while under his physician's care. The trial court gave the jury instruction beyond the standard of care instruction and also discussed the error in judgment rule. The trial judge instructed the jury that "Under the law physicians are permitted a broad range of judgment in their professional duties and physicians are not liable for errors of judgment unless it's proven that an error of judgment was the result of negligence." At trial, defense counsel gave several examples of "error in judgment" to the jury and told the jury that doctors don't practice medicine by textbook and don't have applications on their Blackberrys to look up cures for certain symptoms. Defense counsel asserted that requiring doctors to be perfect is impossible. The Court stated that it was defense counsel's exploitation of the error in judgment charge locked in its decision.

The holding in Passarello reaffirms the Pringle decision which held the error in judgment rule is precluded in Pennsylvania and extends this ruling to apply retroactively to cases which the final judgment of the verdict had not been entered before the 2009 filing date of Pringle.

A Lehigh County jury awarded more than $23 million to a woman who lost portions of both legs to infection almost three years ago.

Attorneys for the 55-year-old Lehighton woman argued that a home care nurse failed to report a bacterial infection in the feeding catheter of the patient, who was being treated for complications from Crohn's disease, and the delay resulted in a near-fatal bloodstream infection in October 2008.  A Lehigh County jury late Friday found the nurse and St. Luke's Miners Memorial Home Care liable, awarding $23.1 million for medical expenses, lost earnings and pain and suffering.

Source:  The Associated Press, Posted Sept. 18, 2011 

I expect many readers will see this headline and jump to the conclusion the jury awarded an excessive verdict.  An "excessive verdict" is a verdict considered by the court as awarding shockingly and unreasonably high damages to the plaintiff even assuming that all the evidence most favorable to the plaintiff is true.  Despite this jumbo-sized award, the verdict will not be considered excessive if it is supported by the "weight of the evidence."  Here, the plaintiff's attorney presented evidence of catastrophic damages, including amputation of both legs, wage loss, lost earnings, medical expenses and pain and suffering.  

In Pennsylvania, where a verdict has been sustained by the lower court, an appellate court will generally not reverse unless the verdict is so grossly excessive as to shock the appellate court's sense of justice.  Nevertheless, it is not uncommon for an appellate court to reduce a verdict which it finds to be excessive under the particular circumstances of the case.   To determine whether the verdict is excessive, the Court will consider what evidence there is to support the award.  Where the injury is manifested by broken bones, disfigurement, loss of consciousness, or other objective evidence, the appellate courts have counted this in favor of sustaining a verdict. On the other hand, when a plaintiff lacks any physical evidence of injury and only supports her allegations with subjective testimony of discomfort, the appellate courts have been more inclined to find the verdict excessive. 

In this case, if appealed, the catastrophic injuries and future expenses may be found to support the verdict as it has no doubt changed the plaintiff's life forever.  Even so, the Court may reduce the award upon appeal if it finds the $23 million verdict punitive or capricious.  

Heffner v. Riddle Memorial Hospital

A Delaware County, Pennsylvania, jury awarded $3.8 million to the estate of a 52-year-old woman who died of sepsis at Riddle Memorial Hospital 14 hours after going to the emergency room with severe constipation.

The award is said to be one of the highest medical malpractice awards, if not the highest, in the county in several years and is one of less than a handful of cases that have gone in the plaintiff's favor in five years.

Source:

Medical negligence (also called medical malpractice) occurs when medical treatment falls below the professional standard of care. Physicians can be held liable for negligent acts or omissions which cause injury to a patient. Inadequate skill, care, and speed are the most common causes of medical negligence claims.

In the above case, the jury found that the house physician and attending doctor failed to diagnose the decedent's Sepsis with adequate speed and failed to use reasonable skill required by a physician under the circumstances. The jury awarded $3 million in Wrongful Death Act damages and $806,785 in Survival Act damages.

This substantial verdict is a win for injury victims in Delaware County. Delaware County juries are notorious for rendering defense verdicts or awarding only nominal damages. For this reason, hospital insurers refuse to compensate malpractice victims with meritorious cases because they know it is expensive and risky for them to go to trial. This award serves as a reminder to defense insurance companies to fairly evaluate claims. Failure to do so may leave them footing the bill on a hefty tab.

Postoperative visual loss (POVL) is a complication that may cause vision loss or total blindness after major surgical procedures such as spine surgery.  Postoperative visual loss is probably multifactorial, however, patients with a large amount of blood loss producing hypotension and anemia along with prolonged operative times have greater risk of developing visual disturbances.  POVL is not only severe, but it occurs frequently enough that lawyers should be familiar with it. 

In recent studies spinal surgery has replaced cardiac surgery as a leading cause of postoperative vision loss.  Estimates of the incidence of POVL after spinal surgery range from 0.028 to 0.2%, but with advances in complex spinal instrumentation and the rise in annual spinal operations, POVL may see an increase in its incidence. See Journal of Neurosurgery.  

Many factors interact to cause PVOL, but the most important involve the body's ability to carry and deliver oxygen to tissues in the optic nerve.  Often, POVL occurs when anesthesiologists fail to maintain blood pressure and blood status during a long surgical procedure, such as spinal surgery.  When a patient loses a large amount of blood during a surgical procedure, non-blood fluids are used to maintain the patient's blood pressure.  When low arterial blood pressure, diluted blood, and increased venous and tissue pressures are maintained for a long time, the body cannot deliver sufficient amounts of oxygen to the optic nerve and may cause permanent visual loss. 

Physicians may be held liable for POVL if their treatment falls below the standard of care.   Although the risk of POVL cannot be eliminated, the risks of POVL is greatly reduced in surgeries that last less than six hours and involve less than a liter of blood loss.   What's more, physicians have a duty to inform the patient that visual loss is a risk prior to undergoing surgery.   A physician may be held liable for damages caused if they fail to obtain a patients informed consent.

If you have suffered POVL as a result of a surgical procedure, call me for a free no obligation consultation.  267-443-8487

Shoulder dystocia is one of the most feared complications in obstetrics.   Translated from Greek, Dystocia means "difficult childbirth."   Shoulder dystocia injuries are caused when a baby's shoulders are unable to quickly and easily follow the delivery of the baby's head.   Thus, the baby literally becomes stuck during birth and additional maneuvers are required to deliver the fetus after normal gentle downward traction has failed.  

Complications resulting from shoulder dystocia during delivery can affect both the mother and infant.  Postpartum hemorrhage and fourth-degree lacerations are the most common maternal complications.  The most common fetal complication is nerve damage to the spine and shoulder (known as brachial plexus palsies) which may result in permanent injury and disfigurement to the baby.  

Shoulder dystocia injuries can be devastating both physically and emotionally for all parties involved.  The injuries may result in sizeable and unexpected medical expenses that may continue for years after the birth.

Sometimes shoulder dystocia occurs without warning.  However, there are red flags that should signal a doctor to recommend a C-section instead of natural child birth.

One of the most common risk factors for shoulder dystocia is suspected macrosomia in the fetus.  The term macrosomia is used to describe a newborn with an excessive birth weight.   Other risk factors that may be present in the mother are abnormal pelvic anatomy, gestational diabetes, post-dates pregnancy, previous shoulder dystocia and short stature.  

Continue reading "Shoulder dystocia: the frightening case of a stuck baby" »

A Northampton County jury awarded a Northampton woman $400,000 today in a medical malpractice lawsuit against a Bethlehem doctor.

According to court documents: Renna in April 2004 found two masses in her breasts and was referred to Schadt. In May 2004, Schadt performed a fine-needle aspiration biopsy to detect if the cysts were cancerous, and the results were negative. Renna returned in March 2005, and a second fine-needle aspiration was performed, but this time the results were positive for cancer. In April 22, 2005, Renna had an excisional biopsy, where the cysts and surrounding area were removed. Three days later, Renna learned she had invasive carcinoma stage III. Renna had a radical mastectomy performed on her right breast and a simple mastectomy on her left breast. Renna's attorneys argued following the initial biopsy results Schadt should have followed up with a more complete biopsy that removed a larger tissue sample to test.

Source: lehighvalleylive.com, Friday, April 29, 2011

According to the American Cancer Society's Cancer Facts & Figures, 2008, 1,437,180 Americans will have developed some form of cancer. Of those cancer victims, approximately 565,650 will succumb to the disease.

A delay in diagnosis or misdiagnosis of a medical condition can prevent a patient from seeking needed diagnostic testing and may deny a patient the opportunity to receive treatment that could improve their condition. This is particularly true in cases of cancer misdiagnosis or other such conditions where early treatment is vital.

Failure to diagnose or misdiagnosis of cancer is mistake that physicians make frequently. Doctors can fail to diagnose a serious illness, such as cancer, by not performing a specific medical test that could have disclosed the disease. Physicians who are inattentive, negligent or outright incompetent should be held accountable for their actions. By failing to adhere to basic standards of care, they put their patients at risk of injury and death. If you suspect that this has happened to you, you should first seek a second medical opinion. Then, you should contact a qualified attorney who has experience handling these types of medical malpractice cases.

Continue reading "Northampton breast cancer patient awarded $400,000 in lawsuit against Bethlehem doctor" »

The number of malpractice lawsuits filed against doctors and hospitals in Pennsylvania dropped last year for the sixth year in a row.

The total was 1,491, according to a report last week by the Administrative Office of Pennsylvania Courts - about half the peak of 2,904 in 2002.

Court officials reported that 163 cases last year had reached a jury, and that 133 verdicts - 82 percent - had favored the defense.

The decline has followed legal changes that the legislature cloaked under the veil of weeding out "frivolous cases." One rule required that a doctor file a certificate of merit within sixty (60) days of the original complaint. The Certificate must state that an appropriately licensed professional has supplied a written statement that there exists "a reasonable probability" that the care, skill or knowledge exercised by the defendant fell outside the acceptable professional standard. Another required that the suit be heard brought in the jurisdiction where the treatment was rendered, preventing lawyers from filing in counties where they believe juries will be more sympathetic.

These changes in the law, along with many other legal hurdles, have made it tougher for a victim of medical malpractice to get their case heard by a jury. Many times, law firms will decline a medical malpractice case even when liability is clear because of the significant expense and investment of time that will take to pursue the case. The unfortunate reality is that these legal changes intended to weed out "frivolous cases" actually restrict victims of malpractice from accessing the Court. Unless the malpractice results in a catastrophic or debilitating injury, law firms are not willing to risk the immense amounts of time and resources it will take to pursue the case, leaving the victim without recourse for their pain and suffering.

Continue reading "Pennsylvania Medical Malpractice Suits Decline for the Sixth Year in a Row" »