Posts tagged with "comparative fault"

A Serious Complication

At 38 years old, Clay Chandler stood 6’2” and weighed around 375 pounds. The father of two and veteran of the Clay County Sheriff’s Office in Florida always passed his physicals, but when he learned about the prestigious and nationally accredited gastric bypass program at Memorial Hospital, he decided to give it a try to shed some of the pounds.

During the 2007 surgery, doctors opened his abdominal cavity and reduced the size of his stomach, while arranging for food to bypass part of his small intestine. The idea is, the patient will eat less and absorb less of what he does eat, leading to weight loss. Unfortunately, in Chandler’s case, the surgery also led to an anastomotic leak, with fluids seeping out of his gastrointestinal tract. Though Chandler displayed classic symptoms of a leak, including difficulty breathing, he was left in critical care for eight days before doctors went in to diagnose and fix the problem.

By then, it was too late, and Chandler went into cardiac arrest and septic shock, suffered severe brain damage, and spent over two weeks in a coma. He emerged from the coma permanently mentally and physically disabled, in need of round-the-clock care, and unable to perform even the most basic life functions on his own.

Nationally Accredited Program

The extent of the neglect is shocking, says Chandler’s lawyer, Jacksonville-based attorney Tom Edwards. “A leak is a very serious complication that can kill the patient,” Edwards explains. “Unless you can definitely rule out a leak, you’re supposed to go back in and resew it.”

The hospital was obviously aware of the dangers. Memorial had received a “Bariatric Center of Excellence” certificate, and advertised that their facilities “must meet stringent quality criteria, as established by expert physician panels, surgeons, behaviorists, and nutritionists.” However, during testimony, Memorial CEO James Wood repeatedly admitted that the hospital hadn’t followed basic peer review policies designed to ensure patient safety. What’s more, John Deperi, the doctor in charge of Chandler’s care, was not actually certified to perform the surgery.

As if that weren’t enough, while Chandler was in a coma, he was again neglected, suffering from bedsores, frozen joints and ultimately was blinded when eye drops were not administered with any regularity. “He’s a total care patient for the rest of his life,” Edwards says. “He needs to be bathed, he can’t use his arms or hands to pull his blanket up if he gets cold, and can’t scratch his nose without help.” A jury heard enough and awarded Chandler, his wife, and two teenage children a total of $178 million for liability and punitive damages.

History of Fraud

Chandler may not be the only patient injured by the hospital’s negligence. A former Memorial nurse testified during the trial that the hospital had ignored her complaints of serious patient care issues for years. “Patients who have had problems need to look at who was doing surgery, and whether the hospital followed the guidelines they represented to the public they were following,” Edwards says.

Memorial Hospital is part of Hospital Corporation of America (HCA), a massive network comprised of 163 hospitals and another 109 freestanding surgery centers in the United States and Britain which calls itself the “nation’s leading provider of healthcare services.” However, this isn’t the first time the corporate giant has found itself on the wrong end of a fraud case. Over two settlements in 2000 and 2002, HCA paid out $1.7 billion to the United States government after running massive Medicare and Medicaid scams in the 1990s.

As a result of the suit, the healthcare company operated from 2000 to 2009 under a Corporate Integrity Agreement with the Department of Health and Human Services mandating strict ethics and compliance measures. Was the agreement effective? The fraud documented in Chandler’s case, in which the hospital did not meet their own advertised standards of care and certification, came in 2007 when the agreement was ostensibly still in place.

“Things Were Done Appropriately”

“I sure hope Memorial Hospital and HCA have learned their lesson,” Edwards says. “They had a good program in place in writing. They simply were cutting corners and not following their own policies. If they were following good safety procedures, this never would have happened.”

What measures for improving the hospital plans to take following the jury ruling is unclear. The hospital issued a statement indicating it plans to appeal, and in a brief interview after the award was announced, Memorial CEO James Wood told a television reporter, “We feel like things were done appropriately. The verdict was a surprise,” before getting in his car and driving away.

“He said that to the news media, but his sworn testimony before the jury would seem to contradict it,” Edwards noted.

By: Aaron Krase

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At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County.

If you have any questions relating to a medical malpractice claim, hospital negligence, or a personal injury claim or would like to schedule a free consultation, please contact Joseph Maya and the other experienced attorneys at our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.

A Georgia woman has filed a $5 million wrongful pregnancy lawsuit against Qualitest Pharmaceuticals. She claims she became pregnant despite taking her birth control pills in the packaging sequence. Of course, Qualitest has recalled a number of brands and lots of the pills because they were packaged in the incorrect sequence for effective contraception.

The woman’s asking for damages for pain and suffering, mental anguish, loss of capacity for the enjoyment of life, health care and treatment, loss of earnings, and a loss of ability to earn money.

The lawsuit seeks class-action status for all women who’ve become pregnant because of this product defect.

Qualitest Pharmaceuticals recalled several brands of oral contraceptives because they posed a risk of unplanned pregnancy. The drug itself is not defective, but a packaging mistake could lead to a woman taking the pills out of sequence. In that case, contraception would be ineffective, and a woman could become pregnant unintentionally.

Not All States Permit Claims for Wrongful Birth or Pregnancy

A packaging error can make a product defective. For example, the failure to warn of harmful side effects or to instruct in the safe or proper use of the product can serve as grounds for a lawsuit if a consumer is harmed by the failure. The mistake might also be a breach of warranty. So if an unplanned pregnancy can be considered “harm” a consumer could sue for this result.

About half the states permit lawsuits for what’s known as “wrongful birth.” It’s a controversial concept. The idea is that had the parents of a child known it would be born with a serious birth defect or condition, they would have terminated the pregnancy. Similarly, parents, if informed that a pregnancy carried the risk of defect, like a genetic disease, may have avoided conceiving altogether.

For example, a jury recently awarded the parents of a child born with no arms and one leg $4.5 million. The award is to compensate them for the expenses of caring for their child over his lifetime. The parents sued the ob/gyn who failed to observe the deformities in two sonograms. They also settled separate claims against a hospital whose technicians likewise failed to detect the abnormalities.

In the United States, unplanned pregnancies are as much the rule as the exception. According to the Centers for Disease Control, as many as half of US pregnancies are unplanned. Could someone besides the parents be legally liable for the consequences of an unintended pregnancy?

Sure enough, some states allow lawsuits for a “wrongful” pregnancy that results in a normal birth. The “wrongful” part can be a defective sterilization, like vasectomy or tubal ligation, or defective contraception. Damages are limited, however. They include the pain and suffering of pregnancy and labor, the costs of medical care for the same, and the costs of the failed procedure or contraceptive device. They exclude the costs of rearing a child.

Wrongful Contraception

This brings us back to the Qualitest recall. If a woman became pregnant as a result of the ineffectiveness of an oral contraceptive, she might have a cause of action for wrongful pregnancy. I asked attorney Tom Lamb, who authors the Drug Injury Watch blog, about it.

Lamb has been involved in numerous product liability cases involving adverse side effects from oral contraception. “Wrongful pregnancy, like wrongful birth, is a state-by-state matter,” he said. “So the first issue is, does the state permit these types of claims.”

Being allowed to sue and actually having a case are two different things, Lamb continues. “You’re likely to have several problems of proof. In the first place, all contraceptives carry some risk of pregnancy. They’re not 100 percent effective. Then there are likely to be questions about whether the contraceptives were used correctly.”

Lamb also notes that a Supreme Court decision from last June has seriously affected suits against generic drug makers. “The Mensing decision put a roadblock in front of failure to warn cases against generic drugmakers. So now whether you have any case at all may come down to whether your doctor prescribed you the ‘name brand’ or generic version of the drug that harmed you.”

That’s something even Justice Thomas, who wrote the opinion in the case, called unfair. Most people, including Lamb, agree. “Hopefully,” he said, “Congress will realize this and find the time to fix the law.”

By: Art Buono

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At Maya Murphy, P.C., our experienced team of personal injury attorneys is dedicated to achieving the best results for individuals and their families and loved ones whose daily lives have been disrupted by injury.  Our personal injury attorneys assist clients in New York, Bridgeport, Darien, Fairfield, Greenwich, New Canaan, Norwalk, Stamford, Westport, and throughout Fairfield County.

If you have any questions relating to a products liability claim, bad drug or medical error claim, or personal injury claim or would like to schedule a free consultation, please contact Joseph Maya and the other experienced attorneys at our Westport office by phone at (203) 221-3100 or via e-mail at JMaya@Mayalaw.com.