Articles Posted in Medical Malpractice

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Meconium is the baby’s first bowel movement. It is probably not what you expect. These first feces consists of debris and cells from the intestinal tract and 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.

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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 also. 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.

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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.

prince george's county lawyersWe 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.

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Picture this: You need a medical procedure, for example, having your gall bladder 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.

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One thing I do every month is read the list of sanctioned physicians published each month by the Maryland Board of Physicians. It can be found online here, and usually comes out in the middle of the month, covering the preceding month. Every personal injury lawyer should do this. It’s not schadenfreude. There is a very good reason.

In the last year alone, I have discovered that two of my clients’ treating physicians have had significant licensure problems during the period of treatment. In one case, the doctor’s license was suspended the whole time she treated my client. If you are planning to rely on a treating doctor as a witness, it is best to know about these kinds of problems. In my case, I was able to name a different doctor as my expert witness. I run any doctor I am considering naming as a witness through the “Practitioner Profiles” database to avoid these kinds of problems. If you start looking, you will be surprised at how often this happens.

It is definitely worth the effort, unless you’d rather find out your expert was unlicensed during the defense attorney’s cross-examination.

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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 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

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Today I saw (via Overlawyered) a blog post by WhiteCoat where WC is critical of a poorly framed law firm press release.

He criticizes a press prelease issued by a medical malpractice law firm. It reads: “Prominent Beverly Hills Law Firm Awarded $16.5 Million Medical Malpractice Jury Verdict.” The basis for WC’s criticism is that it does not mention the client, thereby making it appear as if the award was made directly to the firm.

I don’t think he believes anyone would be misled. I think he is really pointing out that it smacks of arrogance to leave the client totally out of the equation. As he says, “Screw the client.”

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There is a man who lives in York, PA named Albert Snyder. His son was in the military, and was killed in the line of duty. When Mr. Snyder tried to bury his son in Baltimore County, MD, the funeral was picketed by members of the Westboro Baptist Church. They showed up with signs saying things like “God Hates Fags.” Apparently, they believe that U.S. military deaths are God’s revenge for our society’s tolerance of homosexuality. Mr. Snyder sued the Westboro Baptist Church and got an 11 million dollar verdict. This has been in the news recently because Mr. Snyder lost on appeal to the 4th Circuit, and was ordered to pay the church’s costs of about $16,000.

The same day, there was a $1.44 million dollar verdict in the Circuit Court for Baltimore County in a medical malpractice case. This was a death case. The defendant was an ER doctor who failed to diagnoses sepsis, leading to the death of the patient. Baltimore County is one of the most conservative jurisdictions in the state. Because of this, this verdict was also in the news.

Our local paper’s website allows comments, and I read the comments to both of these stories. The comments to the medmal story pillory the plaintiffs and their lawyers. The plaintiffs are called greedy, their case was called frivolous, and one commenter said it wasn’t fair because $1.44 million dollars won’t bring the dead man back. This is a case where a man died.

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Maybe Georgia hates plaintiffs less than I thought.

They have 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

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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.

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