Kentucky Injury Law Blog

Overall, human beings are sympathetic to someone who has been injured, especially if we have a relationship with the person, whether personal or professional. However, in a patient/medical professional relationship, if the patient has been injured during a medical procedure, this sympathy may not be expressed by the medical provider out of fear of appearing to take responsibility for the injury. This withholding of compassion may seem out of character for someone who has supposedly dedicated his life to helping others, and it is in most cases. But many insurance companies and attorneys who represent medical providers discourage them from saying anything to avoid a medical malpractice lawsuit.

Many states have enacted laws, sometimes called “I’m sorry laws,” to help remedy this situation. In these states, any type of expression of sympathy or admission of responsibility from a medical professional cannot be admitted as evidence in a medical malpractice case. Ohio enacted one such law in 2004, and it was recently tested by a case that went all the way to the Ohio Supreme Court. The case involved a woman who went for a gall bladder procedure in 2001 and ended up in the hospital again three weeks later with a cut bile duct. Her doctor allegedly told her he took “full responsibility” for her injuries as she was being transferred to another facility. The victim and her husband filed a medical malpractice claim in 2007. The judge originally found in favor of the doctor, then and Appeals Court overturned the judge’s decision, saying the doctor’s statements should be admissible. But when the case went to the Ohio Supreme Court, justices overturned the Appeals Court decision, saying the doctor’s words of sympathy couldn’t be included as evidence because the law was enacted in 2004 and the couple didn’t file suit until 2007.

Continue reading "How a Doctor’s Apology Can Affect a Kentucky Medical Malpractice Claim" »

Earlier this year, six people from Wisconsin were tragically killed in a truck accident involving an SUV and a semi. The crash occurred on I-65 near Elizabethtown, Kentucky, about 15 miles from where a 2010 truck accident killed 11 people in a van. In the most recent accident, the SUV caught fire after being rear-ended by the semi, and only two children survived.

In April, a wrongful death lawsuit was filed by an attorney representing four of the victims who were killed. Even though the victims were all from Wisconsin, the lawsuit was filed in Kentucky because that was where the accident took place. While this arrangement seems very inconvenient for those affected by the accident, it is fairly standard across the U.S. for any legal action to be taken in the same state in which the accident occurred. Because most people do not have connections with out-of-state attorneys, many personal injury law offices can recommend someone in another state. If the referring attorney stays involved in the case, they may act as co-counsel to the other firm.

The lawsuit named both the driver of the semi and the company he works for as defendants. The lawsuit alleges that the truck driver had been on the road without a break longer than federal regulations allow, and that he kept two sets of log books to keep regulators from finding out. The lawsuit most likely claims that the company he worked for knew he was doing this and perhaps even encouraged the behavior to decrease his downtime. Their claim is certainly strengthened by the fact that the company and the driver have both been declared imminent hazards by the Federal Motor Carrier Safety Administration (FMCSA) and are prohibited from moving freight. An investigation by the agency in March determined that the driver was indeed driving longer than he should and that the company knew about it and didn’t stop him.

Continue reading "Fiery Kentucky Truck Accident Results in Fatalities, Wrongful Death Lawsuit" »

Nursing home abuse and neglect is an unfortunate reality in many facilities in Kentucky and across the country. Whether it is a result of understaffing, miscommunication, lack of background checks, or simply uncaring employees, some of our most vulnerable relatives may find themselves at risk where they are supposed to be cared for and safe.

Many nursing home abuse cases that go to trial result in large damages being awarded to the victim or his or her estate. One of the more recent cases that has been in the news ended with a jury award of over $90 million in West Virginia. The victim had stayed at the nursing home for just 19 days, and she died 18 days after being moved from the home into hospice. Her family filed a lawsuit that accused the nursing home of neglect, saying she had fallen several times and was dehydrated and malnourished. This case highlighted not only how large jury awards could be, but also the fact that nursing homes were not specifically covered under the state’s medical malpractice cap. Since this judgment was rendered, West Virginia legislators have been working to fix this omission.

However, if you would ask the family of the victim who won this enormous amount, they would not say the money makes up for the loss of their relative. They aren’t glad it happened because now they will have lots of money. It doesn’t make it better. It doesn’t bring her back. So why bother filing a lawsuit?

Some families want answers. Oftentimes it is very difficult to find out what happened to a relative at a nursing home. Such is the case for a man in South Carolina whose mother passed away at a nursing home in October, 2012. Before she died she told him she had been attacked by two women, and she was covered in bruises and had a broken hip. Local police were investigating, and the nursing home did an internal investigation, but the victim’s son is still not clear on what happened to his 90-year-old mother. In cases like this, relatives of the victim may file a lawsuit just to get access to the documents that tell what happened. The son in this case also wants to know who was responsible and that they were appropriately punished.

Continue reading "For Families of Nursing Home Abuse Victims, It is not about the Money" »

According to a recent study, as many as 160,000 medical malpractice claims are made each year because of misdiagnosis. As a result, they have accounted for the largest percentage of payouts of all medical malpractice claims over the last quarter of a century. While the majority of misdiagnoses occur in outpatient facilities, these cases are less likely to lead to wrongful death than the smaller percentage of misdiagnoses that occur while patients are in a hospital.

The study lumped together three types of diagnostic errors in their findings: failing to diagnose the problem altogether, giving the incorrect diagnosis, and diagnosing the issue too late. All three of these situations can lead to serious issues or even death. When a medical professional does not find anything wrong with an ailing patient and sends them on their way with no treatment, that is a failure to diagnose. Incorrect diagnosis occurs when a patient is told he has the wrong illness and is given the wrong treatment. This situation can be especially dangerous because not only is the real condition not being treated, but the patient may also be prescribed medication that he does not need. A delayed diagnosis also puts a patient at risk particularly if they have a disease that progresses rapidly, such as certain types of aggressive cancer.

What can patients do to help keep themselves from becoming victims of misdiagnosis? Ask questions, lots of them, including what else the problem might be if the doctor gives you a diagnosis. Don’t be afraid to get a second opinion. The first doctor may not always be right. Always provide any medical professional with your complete medical history, including any previous issues you have had and past and current medications. This information may give clues to what your current problem may be, and it may also keep you from receiving treatment that would negatively interact with current medications. In some medical malpractice cases, the victims have been held partially responsible because they did not divulge their complete medical history. Always keep in touch with your doctors and go to follow-up visits, even if you don’t want to. Finally, if you are being treated based on a certain diagnosis, but you are either not getting any better or are getting worse, tell your doctor and discuss the possibility that the original diagnosis was incorrect and needs to be re-examined.

Continue reading "Highest Percentage of Medical Malpractice Payouts Result from Misdiagnosis" »

When consulting a surgeon about an upcoming procedure, you assume that he is making decisions with your best health in mind. The method of surgery to be used should be the safest, most effective one available. However, according to a recent medical malpractice lawsuit, this may not be the case.

In Washington, a 67-year-old man went to a medical center for a prostatectomy and was told he would be having the latest and greatest robotic surgery. He ended up with a surgery that took more than twice as long as it should have and numerous complications, including incontinence, damage to his kidney and lung, and a blood infection. It wasn’t because the surgeon opted not to use the new technology. It was because the surgeon had never used the new technology by himself. The widow of the patient, who died four years later, has sued the company that made the robotic surgical device for her husband’s injuries, and apparently she is not the first one.

Just like all other for-profit companies, the goal of medical device manufacturers is to make money. The difference is that their products can injure or kill people if they are sold to those who don’t know how to use them. And that seems to be what happened in this case. Sales representatives are commission-based, so the more devices they sell, the more money they make. Therefore their interest lies in making the sale rather than making sure the doctors are properly trained on how to use the devices. Emails from the manufacturer’s sales staff seem to point to this fact. In one email, a sales manager wrote “Don’t let proctoring or credentialing get in our way,” which means he wants his staff to keep selling the products and not worry about training the surgeons who would be using them. While the responsibility of making sure surgeons can perform their duties ultimately lies with the hospital that employs them, it seems that sales representatives have more influence on the amount of training given than they really should.

Continue reading "Are Your Surgical Procedures Being Determined by Salespeople?" »

As evidenced in a recent tragic plane crash in Fort Lauderdale, Florida, small plane crashes are often deadly. On Saturday, March 16th, three men were killed when a small plane they had taken up for a test flight crashed into a lot full of repossessed cars and boats. They left the airport, appeared to try to turn around, then crashed, all within a few minutes. While the investigation is still ongoing, it is believed the accident was caused by a mechanical failure.

There are a few issues that make plane crashes a little more frightening and a little more complicated than car accidents. The most obvious difference between planes and cars is that planes are up in the air and cars are on the ground. If a car malfunctions, there is a good chance it can be stopped with minimal injuries to the passengers or those around them. If a plane malfunctions, it falls from the sky, significantly increasing the odds that those onboard will be seriously injured or killed. There is also a risk that it will fall onto a house, school, or business and injure numerous others.

Determining who was at fault in a plane crash may be more complicated than in a car accident. Planes are frequently owned and piloted by people other than the passengers so there are more people involved. A crash might also be caused by an air-traffic controller who mistakenly allows two planes to collide. As with cars, a manufacturer defect may also be the cause of a crash. In the case above, the plane was listed as being owned by a company that none of the victims appear to have owned or worked at. Investigators will most likely review maintenance logs as well as the plane wreckage to determine if the plane had not been maintained properly. Because planes are normally flown longer distances, there is also a higher chance that an accident will occur somewhere other than in one’s home state. Any personal injury or wrongful death claims would most likely have to be filed in the state that the accident occurred.

Continue reading "Small Plane Crashes Are Often Deadly and Complicated" »

There are few other debates relating to health care that are more heated than those involving medical malpractice. Medical professionals, insurers, and others blame medical malpractice litigation for the sad state of health care today. But in a recent article in Chest, a medical journal, David Hyman, MD, JD, and Charles Silver, JD, reviewed research on the subject and concluded that five charges regarding medical malpractice are untrue.

The first topic they discuss is the presumption that large increases in malpractice lawsuits and the resulting payouts are the reason there is a supposed medical malpractice crisis. Doctors often point to incredibly large awards given to victims by juries as evidence. But in actuality, these large awards constitute a very small percentage of payouts to victims, and most of the victims never receive the entire payout. In reviewing a study based on the National Practitioner Databank, Hyman and Silver determined that the number of medical malpractice claims and the amounts eventually given through settlements or juries have actually been declining. Since 1992, the number of claims actually paid per doctor has decline more than 50%, and the amount paid per claim is almost 50% less.

The myth that uninjured patients are awarded huge amounts of compensation and that tort reform is the only answer is the second topic of the article. Using data from Texas, the authors show that a very small fraction of the population actually files medical malpractice lawsuits and that adopting tort reform in 2003 has not had a large effect on the amount of money awarded to plaintiffs. Their findings showed that the payouts to victims were relative to the seriousness of their injuries, up until death, because victims of wrongful death were awarded less than those who survived with permanent debilitating injuries. Their research showed that even those who suffered serious permanent injuries received an average payout of $1 million.

Doctors often say that medical malpractice claims are putting them out of business and those who support tort reform believe this causes them to move to states that have damages caps. These two beliefs are also wrong, according to the research in the article. Of the small percentage of claims that are filed, only 2% actually go to trial, and three-fourths of those verdicts are in favor of the medical professionals. The huge verdicts reported in the news make the headlines because they are so rare, not because they happen so frequently. And even those larger awards that are not drastically reduced by the court are covered by insurance companies, not the doctors themselves. The theory that tort reform helps to maintain physicians in a certain state was also debunked by data from Texas that showed there was no increase in the number of physicians after the reform was instituted in 2003. Other researchers found a small increase in the number of doctors in rural counties in states with tort reform, but another researcher found no difference in the number of doctors overall.

Continue reading "Are Medical Malpractice Lawsuits Really Ruining Health Care?" »

A 12-year-old North Carolina girl who allegedly was seriously injured during birth was the subject of a Supreme Court hearing earlier this year that could affect medical malpractice award recipients across the country. The girl’s family was recently awarded almost $3 million in a medical malpractice settlement that claimed the doctor who delivered her caused her to be blind, deaf, and unable to walk, sit up, or care for herself. Shortly after the victim’s birth, the doctor, who was known to abuse drugs, voluntarily surrendered his license. A lawsuit was filed by the girl’s family in 2003 and was settled in 2006.

As allowed under current North Carolina law, the state laid claim to over $900,000 of the settlement, or one-third of the total amount, to cover a portion of what Medicaid had paid in medical expenses for the girl. But the family is disputing the state’s claim, saying it is illegal under federal law, which trumps state law. According to federal law, Medicaid generally cannot put a lien on personal property, and a medical malpractice award is considered personal property. However, Medicaid can put a lien on whatever portion of an award or settlement was given to cover medical expenses. In theory, this would make sense – if Medicaid has been paying the medical bills, they could be reimbursed for that amount from the awarded.

However, in many cases, like the current one in North Carolina, settlements or awards are given in a lump sum, they are not divided into categories such as medical expenses, lost wages, pain and suffering, etc. So how much a state could claim to cover payments made by Medicaid is unclear. That is why states like North Carolina have assigned an arbitrary percentage that Medicaid can claim. Medical malpractice attorneys and victims’ advocates do not think states should be able to decide how much they are going to take. State governments fear that if they don’t set a certain amount they will not receive any reimbursement from legal settlements or damages because the plaintiff will claim that the entire amount was for something other than medical expenses.

Continue reading "Supreme Court Hearing May Affect Kentucky Medical Malpractice Awards" »

Product recalls occur on all types of products, but for some reason, those involving food seem to get more press than others. Lately there have been a lot of products that have been tainted with some sort of bacteria, like e coli or salmonella, but four recent recalls have been caused by foreign objects being found in foods.

BBU Inc. has recalled many of their bread products and one type of bun that they bake because there may be wires in them. While it is unclear how they discovered the possibility of this, they think a bad screen at a company that provides flour for some of their baked goods may be the culprit. None of the affected goods are still on store shelves, but the company would like consumers to check at home to see if they have any of these products still in their homes. The link to the official recall with the specific product names is given at the end of this article.

While some may joke that you never know what’s in sausage, finding a piece of plastic in your breakfast meat would definitely be a turn-off. Smithfield Packing Company, based in Virginia, has recalled 38,000 pounds of sausage produced under the name “Gwaltney mild pork sausage roll.” Two people contacted the company after finding pieces of what were most likely plastic gloves in their sausage.

Two recent recalls involve the possibility of glass being in food. The Kellogg Company has recalled several batches of its Special K Red Berries cereal in three different box sizes. The company is asking its customers to check their cereal boxes and to contact them if they have one of the boxes in question. They will send a coupon for a replacement box of cereal and may ask for the bad cereal back as part of their investigation. Nestle, which owns the Lean Cuisine brand, recalled their Mushroom Mezzaluna Ravioli product after three customers reported that they found glass in their meals. Nestle also told customers to contact them for a coupon as they puzzled how this could have happened since they do not have any glass in their factories that manufacture the affected products.

Continue reading "Wire and Plastic and Glass, Oh My! Are These Things in Your Food?" »

Nursing home neglect and abuse is a nationwide problem. Some of our most vulnerable citizens are at risk of being injured or even killed simply because of where they live because they can no longer care for themselves. Unfortunately, Kentucky ranks very low in the quality of nursing home care provided to its residents, and a bill that was recently passed by a state Senate committee will most likely not help matters.

According to the national nursing home database provided by Medicaid, 40% of Kentucky nursing homes rank below Medicaid’s average standard of care. Kentucky also has the dubious honor of being the state with the most federal fines for nursing home violations in 2012. We also have the highest number of serious nursing home deficiencies in the U.S. One would think that these facts would impact the profitability of nursing homes and assisted living facilities, but it does not. Nursing home profits continue to increase exponentially even while the economy suffers and profits in other industries have fallen. Why is this the case? Because nursing homes have guaranteed customers. No matter how bad the economy is, there will always be a need for long-term care for our elderly or incapacitated residents.

A proposed bill that was recently passed by a state Senate committee is definitely not a step in the right direction for those who have suffered from nursing home neglect or abuse in Kentucky. The proposed bill would add an extra step for victims of nursing home abuse and their families. Before a nursing home personal injury or wrongful death case could be heard in court, it would have to be reviewed by a medical panel selected by both sides. This added step would force the victim to wait even longer for any compensation owed, and could potentially increase legal fees. There is also a concern that these medical review boards would be biased against the victim because the doctors on the boards would not want to say anything against a nursing home or assisted living facility that might retaliate by severing business ties.

Continue reading "Kentucky Nursing Home Abuse among Worst in Nation" »

Within the last few days, there have been two bus accidents involving charter buses that injured numerous people. The first happened in Boston, Massachusetts, and involved a bus filled with high school students returning from an outing at Harvard. The bus driver allegedly got lost and was attempting to use his GPS when the bus crashed into a low-hanging overpass, injuring 35 people. The second accident happened a day a later and across the country in California. In that accident, a speeding charter bus hit a car, flipped over, and landed on a pickup truck. Eight people have been confirmed dead, and the total may rise to ten as the wreckage is cleared and additional victims are found. About 36 others were injured.

When you hire a charter bus for an excursion, you assume that the drivers are well-trained, the buses have been properly maintained, and that you will arrive at your destination and back home safely, without the hassle of driving yourself. Unfortunately this is not always the case. In the first accident the driver admitted he was lost and was paying attention to his GPS instead of watching the roads. As a result, he missed the signs warning of the low overpass and many people were injured. Investigators say the driver will most likely face charges in the accident and they will try to determine if he was driving longer than federal laws allow. If that is the case, he may be liable for the injuries his passengers sustained, and the company may be partially at fault if they scheduled him to drive longer than allowed.

It appears that speed was a major factor in the fatal California accident. Investigators are still trying to determine why the bus was going so fast. The driver, who survived the accident, said there was something wrong with the brakes, so that will definitely be considered. A brake issue could mean that the bus company may be partially responsible for the crash if the bus had not been maintained properly; or a product liability issue might make the manufacturer of the bus at least partially liable if there was a defect that caused the brakes to malfunction.

Continue reading "Recent Bus Crashes Highlight Potential Dangers of Chartered Traveling" »

Selecting a nursing home for your loved one who can no longer live by themselves is a very hard task. Having already dealt with the emotionally draining part of making the decision, trying to find the right place can seem downright impossible. As Kentucky nursing home attorneys, we have witnessed the results of nursing home neglect and abuse. In previous articles, we have covered signs of abuse to look for when visiting residents and questions to ask before placing someone in a home or assisted living facility, but they bear repeating. We have also added a couple new issues to consider.

One of the most common signs of nursing home neglect is bedsores. Patients who are less mobile and do not receive the proper care can get bedsores, especially where their bodies are in almost constant contact with their beds. Bedsores can be avoided if the nursing home staff helps the resident move periodically to relieve these pressure points. Another obvious sign of neglect is malnourishment or dehydration. If you visit your loved one fairly frequently, you will be able to see a physical change if they are not getting enough to eat or drink.

Cuts or bruises may show neglect or abuse in nursing home residents as well. If residents aren’t checked often enough, they may try to get up to reach something or use the restroom unassisted, and they will fall and injure themselves. Sometimes proper precautions aren’t used when trying to move a resident, resulting in a fall from a bed or wheelchair. As awful as it sounds, sometimes residents are physically abused by the nursing home staff. If your loved one makes any type of accusation against one of the staff members, do not take it lightly. Make sure to have the complaint thoroughly investigated.

Incorrect medication dosing can also occur in a nursing home. The incorrect amount, or even the wrong drug altogether, could be given, causing complications or perhaps even death. As a recent case illustrates, these medication errors do not always involve pills. The estate of a deceased resident has filed a wrongful death lawsuit against an Illinois nursing home because a narcotic patch was put on her without a previous patch administered at the hospital being removed. The suit alleges that the extra dosage led to her death. When considering a nursing home, ask about their medication policies and what steps are put in place to make sure the residents are receiving the correct medication in the proper dosage.

Continue reading "Kentucky Nursing Home Abuse Takes Many Forms, Some Lesser Known than Others" »