Philadelphia Medical Malpractice Lawyer Blog

Delaware's overall cancer death rate ranks 11th in the Nation and there are lung cancer clusters around the Indian River power plant. Six zip codes near the Indian River power plant have shown an abnormally high rate of lung cancer that has caused state officials to create a "total exposure assessment monitoring" program. This program, which is still in the planning phase, will have individuals undergoing batteries of hair, blood and urine tests and have them wearing devices to measure air pollutants. The monitoring program is planned to last five years and cost $5 million. It will be funded by a combination of local, state and federal funds.

Delaware has been the home for chemical companies (it was known as the "Chemical Capital of the World") and other industrial plants that may be the sources for toxic exposures. Delaware's age-adjutsed cancer rate was also 6 percent above the national average and its death rate is 17 percent higher than the national average. Additionally, Delaware has some of the dirtiest air in the country. Additionally, in the Delaware medical community there have long been anecdotal stories of specific communities with unsually high rates of particluar cancers.

While exposure to toxins and pullatants can have an impact on cancer rates, it is also clear that various other factors can play a significant role. Smoking rates have a significant impact on cancer rates, as can excessive sun exposure. Stopping (or preferably never starting) smoking and wearing sun screen can go a long way to preventing the development of cancer.

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Posted In: Cancer

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A full term preganancy was not properly monitored by an obstretrics resident during an induction of labor causing the infant to suffer a hypoxic brain injury resulting in cerebral palsy and spastic quadriplegia. The case against a resident physician and Evanston Hospital resulted in a $15 million settlement for the plaintiffs before the trial began. The child, now eight (8) years old, has severe disabilities as a result of oxygen deprivation during the labor and delivery. The child has seizures, impaired vision and severe global developmental delays.

This case is a classic example of obstetrical malpractice. An uneventful pregnancy and a routine induction of labor ended in catastrophe for the child. Abnormalities were noted on routine fetal monitoring during the night and the mother developed a fever. However, the resident failed to inform any attending obstetrician of these changes. The resident noted maternal fever, hyperstimulation of the fetus and an increase in the fetal heart rate. The fetal heart rate pattern progressed into one of variable decelerations with late recovery, which soon further progressed into a late deceleration pattern. This pattern of fetal heart monitoring is typical of significant fetal distress and an infant suffering hypoxia. Although some of these abnormalities were noted, the resident was inexperienced and failed to notify an attending obstretrician of these findings.

Shortly after birth, the child developed seizure activity, which is also a sign of a hypoxic brain injury. A CT scan demonstrated difuse bilateral brain injury. The child will undoubtedly suffer from severe and devastating disabilities for the remainer of his life.

This case settled prior to trial largely because of the strength of the medical evidence. Fetal monitoring was done and recorded, which clearly demonstrated abnormalities that were not acted on. The labor should not have been permitted to proceed to a non-urgent vaginal delivery in the face of hours of abnormal fetal monitoring. Rather, an emergency caesarean section should have occurred when the abnormal fetal monitoring was first detected.

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Posted In: Obstetrics

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The Food and Drug Administration (FDA) has issued a warning concerning the use of Codeine, Morphine and related pain and cough medications in nursing woman because of concerns of injury to their infants. This new warning was prompted by the death of an infant in 2006 from an overdose of narcotic (from maternal Codeine) that the infant received through the mother's breast milk. It is now well-described that some mothers have a genetic mutation that affects the way their bodies metabolize codeine and related narcotics. These mother's will change Codeine and related drugs into Morphine at an abnormally rapid rate and then the Morphine is secreted into their breast milk. The infant's then swallow the Morphine filled breast milk resulting in an overdose to the infant that can cause death.

The symptoms of a narcotic (Morphine) overdose in infants and children can include: difficulty breathing, excessive sleepiness, difficulty feeding, constipation and limpness. Mothers with this genetic variation causing the abnormally high levels of Morphine may experience: confusion, constipation, sleepiness and shallow breathing. The risk of having the genetic mutation that affects narcotic metabolism varies based on the race of the mother. It is thought that 16% to 28% of North Africans, Saudis and Ethiopians have the defect, whereas 3% of African Americans are affected, 1% to 10% of Causcasians have the mutation, but only about 1% of Hispanics, Chinese and Japanese are affected.

Although this genetic variation is not common, it does involve a significant number of nursing mothers. This concern has been most commonly raised with the use of Codeine, because this drug is the most commonly prescribed narcotic pain medicine after child birth. Codeine is also commonly used for severe cough. It must be noted that this genetic variation will also change the way these mother's metabolize any narcotic medication, which places their nursing infants at significant risk. If you have ever had any troubles with anesthesia or pain medication use, you should speak to your physician before taking such medications and nursing your child.

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Posted In: Obstetrics

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A 5 year old boy drowned at a Maryland counrtry club because safety rules were not followed. Recently, a jury awarded the parents of the child $4 million after they successfully sued DRD Pool Service Inc, which was the country club's pool management company. The pool management company was found to have not adequately trained its lifeguards and to have not adequately staffed the pool area. This is a typical example of the obligation of property owners to provide proper safety precautions for individuals using its services.

In this case, a 16 year old was on lifeguard duty when the child's body was found floating in the outdoor pool. The child had been playing in the pool with two other children and an adult friend. The lifeguard had only been working at this job for three weeks prior to the incident. In Maryland, only one lifeguard id required for ever 50 swimmers. The family is advocating more stringent rules requiring a lifeguard for every 25 swimmers. The family has set up a foundation in memory of their son and they are working with Maryland lawmakers to improve state safety rules for all pools.

This type of tragic case happens far too frequently every summer. Even when lifegaurds are present and all safety rules are followed, tragedy can occur. Unfortunately, pools are often staffed by young and experienced lifeguards, who are not adequately trained and do not always follow the necessary safety rules. These mistakes are rarely admitted to by the institutions owning the pools. Frequently, the true reason why such deaths occur are not uncovered unless there is litigation and in-depth discovery conducted by a qualified attorney, as this case demonstrates.

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Posted In: Premises Liability

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A Boston jury recently awarded $26.5 million to a 10 year old child who was injured at birth because of two doctors' failure to recognize fetal distress during labor and their delay in carrying out an emergency ceasarean section. Jose Bejarano, Jr. is a severly handicapped child with devastating cerebral palsy and mental retardation. He requires a feeding tube and around-the-clock nursing care for the remainder of his life. Although the child cannot talk, the family insists that he is able to express pain and happiness through his eyes. The award will assist the family in providing all the medical and nursing care that this unfortunate child will require. This verdict is thought to be one of the largest in Massachusetts history and is the biggest verdict in 2007.

The verdict for the Bejarano family was against two obstetrical physicians (OB/GYN) who provided care at Brigham and Women's Hospital, which is affiliated with Harvard Medical School. Although the negligent care was provided over 10 years ago, because Jose Bejarano was a minor, his statute of limitations (the length of time during which he is permitted to file a lawsuit) extends until his 20th birthday. This is identical to the law in Pennsylvania, which permits minors to bring a lawsuit for their injuries until they reach their 20th birthday (until they become an adult at age 18 and then 2 additional years).

Verdicts of this size are unusual even in medical negligence cases involving horribly injured individuals. Two factors are the predominant determinents of a verdict's size. First, the amount of money that will be needed to provide proper medical and nursing care to the injured person for the remainder of their life is the single most imprtant factor to the size of a verdict. Children who have long life-spans left ahead of them and have high yearly costs for feeding tubes and nursing care, such as in this case, have very large economic damages. These damages are quantifiable and are presented to the jury. I have been involved in cases where the future medical expenses for a child have been estimated in excess of $40 million dollars. The second factor having the greatest impact on a verdict is the length and amount of pain and suffering that an injured person endures. When there is horrible suffering for long periods of time, juries are more likely to award very significant non-economic damages. This case demonstrates how economic and non-economic damages can combine to sometimes create extremely large jury awards. However, the overwhelming majority of awards and settlements are considerably smaller then in this case. Additionally, this family will likely get only a very small portion of the $26.6 million award because there is likely not enough insurance coverage to pay this large verdict. Getting the verdict is only one issue in the battle to actually get paid the money.

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Posted In: Obstetrics

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The Pennsylvania Supreme Court recently held that a Podiatrist could not give expert testimony against an Orthopedic Surgeon concerning the proper standard of care in a medical malpractice lawsuit concerning bunion care. Wexler v. Hecht, 928 A.2d 973 (Pa. 2007). The highest court in Pennsylvania found that because podiatrists attend podiatric school and not medical school, the training and licensing of a podiatrist is different from a medical doctor. Consequently, as a matter of law based on the Court's interpretation of section 512 of the MCARE Act, which limits expert who may testify on the standard of care to those with an "unrestricted physician's license," a podiatrist does not possess the required expertise to give expert testimony against an orthopedic surgeaon, who holds a medical degree. This holding demonstrates how the MCARE Act has limited the previous Rules of the Pennsylvania courts, as this ruling apparanently now trumps the much more liberal Pennsylvania Rule of Evidence 702 concerning expert testimony.

The Pennsylvania Supreme Court's analysis in concluded that there is bright line rule separating physicians and podiatrists. Physicians must either have a medical degree or an osteopathic degree, which is a medically based. Both Medical Doctors (M.D.) and Osteopaths (D.O.) are trained about the entire body and are licensed and boarded by the same/similar private and state organizations. Podiatrists hold only a podiatric degree and their education and training is limited to the feet. Podiatrists are also licensed and tested by a different organization. Consequently, the Court found that Podiatrists did not have the proper expertise to offer standard of care testimony against orthopedic surgeons.

This case did not clarify if the reverse situation would be permissable; that is: may an orthopedic surgeon still testify as to the standard of care against a podiatrist? I believe that because the orthopedist is a medical doctor, the court would still likely permit this type of expert testimony. This case also addressed the retroactive application of the MCARE Act and the court held that the MCARE Act did apply. Fortunately, this issue is not relevant to any cases filed in the future.

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Posted In: Expert Testimony

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A $7 safety device on a truck's dump-bed kit made by Heil Co. would have prevented a man's death, but the company didn't include it on the product and failed to warn of the dangers of the product despite the fact that the safety device had been in use on similar products for 60 years. These facts led a jury to conclude that the widow of an Ohio man killed by the product should receive $6 Million. The accident occurred when the man accidentally hit a control valve on the outside of his 1978 Ford truck, causing the dump-bed to silently lower and trap him against the frame of the truck within 4 seconds.

Heil Company alleged that the dead man was at fault for the accident because he failed to brace the bed while performing maintenance on the truck. After the jury verdict was received, Heil Co. appealed the case arguing that the evidence in the case didn't support the verdict. The appeals court rejected the appeal and upheld the verdict, in part because the company waived many of the objections raised in the appeal by not making them at trial.

This case is consistent with many cases involving defective products in that too often a very cheap addition to the product would have prevented serious injury and even death. Moreover, it is frequently learned during the litigation that companies were aware of the risks, but failed to pass that knowledge on to consumers so that they could protect themselves. While time-consuming and expensive, product liability lawsuits can prevent future injuries and deaths.

Posted by Leon Aussprung | Permalink | Email This Post

Posted In: Defective Products

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Drug manufacturers of infant cold medicines such as Dimetapp, PediaCare, Tylenol, Triaminic and Robitussin have pulled these medications from stores following reported child deaths from overdoses. The manufacturers continue to assert that these medications are safe when used as directed on the packaging, but the American Academy of Pediatrics ("AAP") disagrees. The AAP has taken the position that over-the-counter cold and cough medicines don't work in very young children (under the age of 6) and present risks for babies and pre-school age children.

Children's cold remedies accounted for approximately 8% of over-the-counter cold and cough medicines sold in the United States. Notwithstanding the popularity of these drugs, the Centers of Disease Control Prevention reported that in 2004 and 2005 approximately 1,500 children under the age of 2 experienced complications to include heart problems, convulsions, neurologic complications and trouble breathing, as well as other symptoms. Of these 1,500 children, there were 54 deaths in children who used decongestants and 69 deaths in children who used antihistamines.

The AAP advises parents to stick with remedies such as salt-water nose drops, suctioning infants' noses of mucus, fluids and rest. Pediatricians point out that coughing is good for the body because it clears out the lungs and low level fevers are actually helpful because they fight infection, so suppressing these symptoms may do more harm than good. It is possible that these medications, or similar ones, will be back on the market with more specific labels about dosing and usage, but until then parents need to prepare themselves to work harder to ease the symptoms experienced by little ones just as cold season begins.

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Posted In: General Information

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LASIK eye surgery can cause extremely dry eyes, blurry vision and difficulty with night driving, leaving patients with excruciating facial pain, worse vision than before the surgery, and visual distortion (including halos, glare and seeing multiple objects). At the extreme, complications include eye bulging and blindness, especially in patients with thin corneas (which are found in approximately 10% of Americans). These complications can result in the need for goggles that help with eye moisture, as well as expensive eye drops and special contact lenses. Some patients have reported spending as much as $500 per month on treatments for their LASIK complications.

Ideally, doctors and facilities that perform this procedure screen patients for risk factors and ensure that only physicians provide surgical care. Unfortunately, many facilities perform this "private pay" procedure (not covered by insurance) in bulk rather than on carefully-selected patients and some facilities use non-physicians for much of the care received by the patient. Moreover, some surgeons perform the procedure at the referral of optometrists, who are not physicians, but who nonethless perform the risk-factor screening and provide follow-up care for the patient. In some cases, referring optometrists receive a referral fee from the surgeon, decreasing the incentive for screening out patients who may not be good surgical candidates.

Because LASIK involves cutting and reshaping the cornea, some research has suggested that the cornea becomes permanently weakened after the surgery and that the nerves severed during the surgery never recover or take years to recover. Complications from LASIK can occur because of problems with the laser or other equipiment used during the procedure, physician error in screening patients for risk factors or in performing the procedure itself, or from poor treatment by non-physician providers involved in the surgery.

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Posted In: General Information

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Stevens Johnson Syndrome is the result of an allergic reaction caused by many different drugs and medications. Not all of these medications require a prescription and many can be purchased over-the-counter. It is estimated that Stevens Johnson Syndrome causes over 140,000 deaths every year in the United States and causes complications for two million people. Some of the most common medications causing Stevens Johnson Syndrome include antibiotics (especially sulfa based drugs), pain medications (such as Bextra and Celebrex), and seizure medications. An excellent resourse for individuals concernned about this syndrome is the Stevens Johnson Syndrome Foundation.

Stevens Johnson Syndrome is a potentially life-threatening reaction that causes blistering of the skin and severe burning. The skiin will eventually slough off. Stevens Johnson Syndrome frequently causes blindness and around 30% of affected individuals die from the illness. The best treatment always entails early recognition and diagnosis and fast medical intervention. Some of the early symptoms of Stevens Johnson Syndrome include:

Flu-like symptoms with high fever
Blistering or burning of mucous membranes, such as the lips, mouth, eyes and ears
skin rashes, red spotches and skin blisters
skin sloughing
history of a prior drug reaction

Cases of Stevens Johnson Syndrome are sometimes the result of medical negligence. Medications are sometimes mistakenly prescribed to patients who have had a prior drug reaction to the medication or to a related medication. Sometimes the symptoms are not timely recognized and appropriate treatment not timely started. Is you believe that you may have developed Stevens Johnson Syndrome as a result of a medical error or not had your symptoms properly treatment, you should immediately contact an experienced attorney to evaluate your potential case.

Posted by Leon Aussprung | Permalink | Email This Post

Posted In: Drugs

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Medtronic, the nation's largest electronic heart device maker, has agreed to pay $75 million in settlement of 2,000 claims that it hid defects in its defibrillators. A defibrillator is a medical device that is surgically implanted in the chest and, after sensing an abnormal heart rhythm, will send an electrical jolt to correct the abnormal heart beats, which can be life threatening. Defects in the medical device, including battery defects and other glitches, cause the defibrillator to fail and can result in death. There remains time for potential claimants to recover under this settlement and if you have an implanted defibrillatror you should immediately contact an attorney to protect your rights.

Approximately one million Americans have heart conditions that place them at risk for fatal heart rhythms and sudden death. Several studies have concluded that using an implantable defibrillator can reduce the chance of sudden death by around 7%. Medtronic has already recalled around 87,000 defibrilators and surgery was done to replace approximately 19,000 more. There are claims that Medtronic attempted to hide the defects in its product, which it became aware of as early as September 2003. Another company, Guidant, has also recalled over 100,000 defibrillators and documents indicate that Guidant also knew of the problems in 2002. Guidant previously settled its claims for $195 million.

If you know someone who died while they had a implantable defibrillator in place, it is critical that you immediely contact an attorney because your time to file a lawsuit is very limited. Additionally, if you currently have an implanted Medtronic defibrillator, you should contact an attorney to learn if you are eligible to participate in this recent settlement.

Posted by Leon Aussprung | Permalink | Email This Post

Posted In: Defective Products

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Pennsylvania Superior Court recently overruled a Philadelphia judge and held that it was improper to allow a case to proceed with only 8 jurors. The right to a trial by jury is one of the most fundamental rights of our legal system. The requirement to have 12 members on a jury is important for several reasons. First, in Pennsylvania civil trials, a verdict must be rendered by the agreement of 5 out of every 6 jurors. That means that when there are 12 jurors, it only takes the agreement of 10 jurors to reach a verdict. When only 8 jurors deliberate, it requires 7 of them to agree, which is a higher percentage. Consequently, it is generally to a plaintiff's advantage to have 12 jurors. Second, a larger jury allows for a broader cross-section of people and helps to render a more fair and balanced verdict.

In the case of Gianni v. Phillips, at a pre-trial conference, a Philadelphia county judge asked if the parties would agree to allowing the case to proceed with only 8 jurors. Although the defendants agreed to having only 8 jurors, the plaintiff objected. Nevertheless, the Judge ordered that the case proceed to trial with only 8 jurors and a verdict was eventually rendered for the defendants. The plaintiff then appealed the ruling to Pennsylvania Superior Court, which held that permitting the case to proceed with only 8 jurors over the objection of any party was reversible legal error. Consequently, the case has been sent back to the Philadelphia County Court of Common Please for a new trial.

This case evidences how trial attorneys must fight for the rights of their clients even after a verdict is rendered. As an experienced trial attorney, I will vigoously represent you in your case. Although no one can ever guarantee a specific outcome and even judges commit error, without an experienced and capable attornely, a client can easily be overwhelmed by the judicial system. I work to protect all the rights of plaintiffs and to ensure that they recover everything to which they are entitled.

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Posted In: Trial

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The Holland-Glen Nursing Home in Hatboro, Pennsylvania faces serious charges filed by the United States Attorney's Office for providing substandard and worthless care, which defrauded the Pennsylvania Medicaid and federal Medicare progarms. The civil complaint filed by the federal government alleges that the facility was operating without a proper skilled-nursing license and provided care that was below the standard of care in several respects, including failing to respond to respiratory alarms, improper bedsore treatment and improper medication administration. Several specific incidents were also mentioned, including the death of a 10 month old infant with a heart condition after receiving improper doses of two different medications. Also, the nursing home staff failed to respond on many occassions to pulse oximeter alarms (which measure the amount of oxygen in the blood) and one patient was found unresponsive because the monitor was attached improperly.

Patrick Meehan, the U.S. Attorney in Philadelphia who filed the lawsuit, is permitting the nursing home to continue its operations during the litigation of the case. The Holland-Glen Nursing Home provides specialized care to approximately 30 children and young adults, who are ventilator-dependant or respiratory impaired. Apparently, the nursing home had a license to operate only as a community group home for the mentally retarded, but when this program ended in 2003 and the facility began providing skilled nursing care, no skilled-nursing license was ever obtained. Meehan also stated that this nursing home has failed to comply with federal and state regulations in the past.

Improper and substandard Nursing Home care is a frequent source of concern that can result in a medical malpractice case. Unfortunately, we too often hear in the news about elderly patients who are neglected, abused and even beaten by nursing home staff. As at the Holland-Glen Nursing Home, bedsores are common and they can progress into serious infections such as osteomyelitis (bone infection) and can even result in death. Nursing Homes have an obligation to provide a competent and proper level of care for all their patients, including nutrition and medical monitoring. As this case demonstrates, the same issues and concerns are present in the chronic care of infants and children as are present in caring for the elderly.

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Posted In: Nursing Home Care

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A defective Sesame Beginnings Travel Play Yard caused the death of a 10 month old boy, leading manufacturer Kolcraft Enterprises, Inc. to recall more than 400,000 playpens (often called a "pack and play" by modern parents). Each year, dangerous products cause injury and death to hundreds of thousands of Americans. For instance, in 2005, toys alone caused injury to more than 200,000 children and led to the death of 20 children. The Consumer Product Safety Commission is a government agency that monitors dangerous products and recalls products when necessary. Unfortunately, by the time the Commission is aware of the dangerousness of a product and issues a recall, the product has already caused injury or death to one or more people.

For instance, the Kolcraft playpens were recalled after a 10 month old baby died from being strangled by a strap that hangs from a changing table that fits on top of the play yard. In this instance, the recall applies not only to the Sesame Beginnings model in which the baby died, but to 12 other playpen models sold in the United States between January 2001 and September, 2007 at a cost of $50 - $130. One of the recalled models, the Contours 3-in-1 Play Yard, poses a risk of suffocation in that a raised rocking cradel in the device can trap a baby if the cradle rolls over.

About 2500 products are recalled each year. If you want to receive warnings about products and recall notices, you can subscribe to receive emails from the Commission when a recall is placed on a product. In my opinion, one of the best features of the subscription service is that you can specify what types of product recalls you want to be notified about. I, for instance, only receive recalls that involve infant and children's products, but there are about a half-dozen categories from which you can choose.

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Posted In: Defective Products

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Infections ocurring during a hospitalization kill 99,000 people every year, according to data from the Centers for Disease Control and Prevention. Even more dramatically, these same statistics reveal that each year over 1.7 million people in the U.S. develop an infection as a complication of their hospitalization. Obviously, these infections, which can include staphylococcus ("staph"), often leave a patient far worse off after a hospitalization or surgery than they were before. These statistics show that in cases where a patient dies or is paralyzed from an infection following surgery (some types of infections can result in abscesses that can impinge nerves) or requires surgery or other lengthy treatment, it is not unreasonable to have an experienced medical malpratice attorney review the the medical records to determine if the hospital used the proper antibiotcs and adhered to infection-control measures.

Infection cases are not necessarily easy to prove. In surgical cases alone there are three widely-accepted infection-control measures that need to be evaluated: (1) were preventative antibiotics given in the hour before surgery; (2) was the right antibiotic chosen; and (3) when was the antibiotic stopped after surgery. Infection rates are lower in patients who receive the correct antibiotic for their situation during the hour prior to surgery. However, if the antibiotic is continued more than 24 hours after surgery, the patient can develop bacteria that is resistant to antibiotics, which means that if the patient were to develop an infection, it would be more dangerous than if the patient had never recieved the antibiotics.

If you are reading this and are getting ready to be hospitalized or have a surgery, you are probably wondering how you can be sure your hospital takes the steps necessary to reduce infections. I suggest looking at the hospital comparison website of The Centers for Medicare and Medicaid Services (CMS), which is a government agency that, among other fuctions, tracks infections at hospitals across the country. The CMS website allows the public to see safety data for hospitals, to include information on infection prevention measures. For instance, by using this website, you can learn how many Philadelphia hospitals, such as Albert Einstein Medical Center, Hahnemann University Hospital, Hospital of University of Pennsylvania ("HUP"), Temple University Hospital and Thomas Jefferson University Hospital, performed in 2006 relative to the state and national averages. In general, these 5 hospitals did well when compared to the national and state averages in the three infection-control measures. I would encourage anyone who is going to have surgery (especially an elective procedure where you have the time to conduct research on the facility you want to operate on you) to look at the data on infection control measures. Some hospitals nationwide fall far below the national average and given that infections can be fatal, these statistics really can be a life-saver.

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Posted In: Infection

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