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Articles Posted in Medical Malpractice

The conversation surrounding the #MeToo movement on social media has made many reconsider inappropriate behavior inside and outside of professional environments. The much-publicized trial of disgraced former USA Gymnastics doctor Larry Nassar – and his conviction on seven counts of sexual abuse– she’d light on the kind of incidents experienced by many female patients. Here’s what you need to know about sexual assault by a treating medical professional.

Sexual assaults by doctors are not necessarily medical malpractice claims.  They are assaults.  But when we have these cases, we are likely going to file them as malpractice cases.  The defenses are often grounded in malpractice and we are often bringing negligence claims against the medical practice or hospital for not properly supervising the doctor in light of what is often prior complaints against the doctor.  We have a sexual battery case in suit now where the doctor required a chaperone due to prior allegations but one was not provided with our client.  The doctor eventually lost his medical license.

What Do We Consider Sexual Assault?

A Cesarean section, commonly called a “C-section”, is often performed when the baby or the mother is in distress. A C-section enables a doctor to remove the infant immediately in order to prevent an injury and then allows the doctor to provide treatment as soon as possible. Sometimes, however, there may be a delay in performing a needed c-section.

The standard of care when delivering a baby requires the obstetrician or midwife to correctly assess the fetal monitor tracings and to recognize any non-reassuring patterns. If the baby is in trouble, doctors need to take action quickly. A timely performed C-section is often the best path to protecting the child from a loss of oxygen that can lead to a brain injury or death.

There is some debate among obstetricians as to when a C-section is appropriate.  There is no dispute that the standard of care calls for cesarean sections in many cases, including, repeat C-sections,  multiple births, a labor and delivery which is expected to be challenging, when the child’s expected size is disproportionate to the mother’s pelvis, uterine tumor obstructions, or breech or transverse presentation of the neonate. Obstetricians also agree that there are cases of fetal distress or maternal disorders that mandate a C-section.

Meconium is the baby’s first bowel movement. It is probably not what you expect. These first feces consist of debris, cells from the intestinal tract, mucus, and slimy fluids. Meconium is green and has no smell.

What is Meconium Aspiration Syndrome?

Meconium Aspiration Syndrome (MAS) causes respiratory distress as a result of meconium entering the respiratory tract below the vocal cords and presenting in the tracheal bronchial tree. When the baby makes an attempt to breathe in utero, before the baby is delivered, the baby can inhale meconium material into the lungs. The fear is the meconium blocking the airways.  Oxygen is critical to life for all of us.  But, during the birthing process, it is critical to have a smooth flow of oxygen to the brain and other vital organs.

Hypoxic-Ischemic perinatal encephalopathy (“HIE” for short) is loss of oxygen to the brain. In slightly less than half of the cases, HIE can cause death or brain injuries.

What Causes HIE?

Obviously, the brain is the key to neurological function. The brain commands and controls all of our essential actions and reactions. This includes sending messages via neurotransmitters to control all of a person’s essential cognitive and physical functions. The brain is fed by blood and oxygen. All of our brains, especially the fetal brain in particular, are highly dependent on blood and oxygen to survive. If the fetal brain is deprived of blood and oxygen for a sufficient amount of time, it becomes permanently damaged by hypoxia and ischemia. Not only does the brain need oxygen, but the cells need oxygen too. Some birth injury cases (we are handling one now) involve damage to other vital organs that have suffered irreparable injury from lack of oxygen during the birthing process. Without oxygen, the vital cells in the brain and other organs shut down. To make matters worse, dead cells give off toxins which are called cytokines and which cause additional injuries above and beyond the ischemic injury initially caused by the lack of oxygen. The amount of time that the brain is deprived of oxygen is critical to the baby’s outcome. If the child’s brain is deprived of blood and oxygen for an extended period of time, 15 minutes is the amount of time often mentioned, then the brain becomes permanently damaged. The result is a brain that cannot provide normal neurological function, meaning that the person with the brain injury loses the mental and physical abilities to move, think, and live the way their DNA intended. The result in some cases could be cerebral palsy, spastic quadriplegia, seizures, epilepsy, and/or developmental and cognitive delays.

Recently I was contacted by a very nice lady who was looking for an injury lawyer to handle a case involving the wrongful death of a family member in a Baltimore nursing home.

baltimore nursing home malpracticeWe handle a lot of nursing home cases and this call was very typical.  We get a lot of calls on nursing home cases, particularly when a serious injury or death is involved. It’s normal for a traumatic event like this to leave grief-stricken family members looking for answers.  In nursing home negligence claims, surviving family members call because they see the care at the nursing home.  In many of them, the care provided is awful.  Then, their mother/father/wife/husband/brother/sister dies.  They are calling to see if two plus two equals four.  Quite often, it does.

In this case, the caller was herself a licensed nurse-practitioner who had very specific information about exactly what she believed was done wrong. This is unusual simply because she had specialized knowledge that the average person would not.

Picture this: You need a medical procedure, for example, having your gallbladder removed. You arrive at one of the area’s fine local hospitals, where you are seen by a doctor and told “Sure, we can help you, as long as you sign this form giving up your right to sue us for damages if you are injured by malpractice.”

Sounds like a great deal for them, and a terrible deal for you, right? The Cato Institute has issued a paper advocating that agreements like this, in one form or another, should be allowed and upheld by the courts. Surely they can’t be serious? Yes, they are, and no, I won’t stop calling you Shirley. RIP, Leslie Nielsen.

Contracts like this are generally unenforceable. They are called “contracts of adhesion”, and are not allowed because of the extreme inequality in the bargaining positions of the patient and doctor, among other reasons.

Medicare liens are a topic of concern for most competent personal injury lawyers. It looks like Medicare is set to begin enforcing a federal law requiring reporting on injury claims made by individuals receiving Medicare.

The key thing about this law for injury lawyers is that if you fail to protect Medicare’s interest, Medicare can go after anyone in the process to recover the payments made: the Medicare recipient, their personal injury lawyer, the defendant, the defense lawyer, or the defendant’s liability insurer. And lets face it- we all know that the client and the defendant won’t have the money by the time Medicare comes looking. The feds are good at protecting themselves, and here they are doing it by putting a target on lawyers and insurers, which should not be a big problem as long as we are doing our jobs the right way.

Related Information

Georgia has  a “tort reform” law that limits non-economic damages in medical malpractice cases to an unconscionable $350,000. They also have a state constitution that says that “the right to a trial by jury shall remain inviolate.” The Georgia Supreme Court recently held the cap to be unconstitutional, stating that “[t]he very existence of the caps, in any amount, is violative of the right to trial by jury.” It is nice to see an appellate court take its role seriously in ensuring that legislative mandates conform to constitutional requirements.

Other Posts Of Interest

Here is an article about a recent opinion of the Georgia Supreme Court (that state’s equivalent to the Court of Appeals of Maryland) that uphold “tort reform” laws passed by the Georgia legislature. These laws were passed in 2005 as part of a package of “tort reform” laws.

The court upheld a Draconian change in the standard of care for victims of medical negligence where the negligent doctor was providing care in an emergency room. In Maryland, doctors in any setting are held to a negligence standard. If the doctor failed to act as a reasonable health care provider would have under the circumstances, that is negligence.

Georgia has a different standard of care as a result of these 2005 laws. To recover for malpractice against a Georgia ER doctor, a plaintiff must prove “gross negligence” by “clear and convincing” evidence. I think Georgia is the only state in the country with a law like this. This changed the pre-existing law in two crucial ways.

Today is October 14. Each month the Maryland Board of Physicians posts on its website a report of sanction proceedings against the physicians and other medical professionals it regulates. The sanctions for September, 2009 were just posted today.

This is a big deal. That list of sanction proceedings is pretty much the only way for Marylanders to know if there has been a proceeding against their doctor’s license. Here is a great example to show why this is important, and why the Board of Physicians gives mere lip service to the safety of Maryland patients.

I have a client who was injured in an accident on January 1, 2007. She did what most people would do. She had a visit at the ER, and then followed up for treatment with her regular doctor. She was treated by her primary care doctor from January 20, 2007 to December 12, 2007. The doctor prescribed medications, physical therapy and chiropractic treatment. That all sounds great, right? Perfectly appropriate.