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.
Unfortunately, not all Kentucky medical facilities are honest when a mistake is made, so medical malpractice lawsuits are still necessary in some cases to obtain the compensation the victims and their families deserve. If you or someone you love have been injured by a doctor, hospital, or other medical professional, contact Steve Frederick, a Kentucky medical malpractice attorney, to discuss your case.
Source:
Ohio Supreme Court: Sympathetic statement by doctor not admissable in Streetsboro medical malpractice case; Streetsboro Gateway News; April 24, 2013
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.
Sources:
6 in single extended family killed in Kentucky highway crash; nbcnews.com; Bruce Schreiner; March 2, 2013
Wrongful death lawsuit filed on behalf of 4 Wisconsin residents killed in I-65 crash; The Courier-Journal; Jason Riley; April 17, 2013
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.
Whatever your reason, if you have a loved one who has been neglected or abused in a nursing home and are considering filing a lawsuit, Kentucky nursing home attorney Steve Frederick can review the facts of the case and determine what action should be taken.
Sources:
Son seeks justice, changes after mother dies in nursing home; wistv.com; Jody Barr; April 22, 2013 http://www.wistv.com/story/22045608/man-seeks-justice-changes-after-mother-dies-in-assisted-living-facility
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.
Source:
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.
Sources:
Salesmen in the surgical suite; The New York Times; Roni Caryn Rabin; March 25, 2013
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.
Sources:
Three killed as small plane plummets into Fort Lauderdale lot; Sun Sentinel; Ihosvani Rodriguez, Ken Kaye and Robert Nolin; March 15, 2013
Fort Lauderdale plane crash brings tears, sparks fears; Sun Sentinel; Susannah Bryan, Tonya Alanez and Ken Kaye; March 16, 2013
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.
The authors conclude that even if tort reform did reduce the number claims and amounts paid per claim, they still “do not make health-care safer, reduce health-care spending, compensate those who are negligently injured, or make the liability system work better. The best reforms are patient safety initiatives that reduce the frequency and severity of medical mistakes.” Until different reforms are put in place to protect and fairly compensate patients, Kentucky medical malpractice attorney Steve Frederick will continue to represent those who have been injured by medical professionals.
Source:
"Five Myths of Medical Malpractice;" Chest; David Hyman and Charles Silver; January 2013
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.
Source:
Supreme Court case involves medical malpractice awards, Medicaid; McClatchy Newspapers; Michael Doyle; January 7, 2013
]]>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.
If you think you have ingested a foreign object while eating, it is important to seek medical attention immediately so doctors can determine exactly what you have consumed and decide what to do about it. If indeed it was a foreign object and you were injured as a result, a Kentucky product liability lawyer can help you determine what action needs to be taken against whom for you to be fairly compensated.
Sources:
Lean Cuisine Ravioli Dish Recalled After Glass Fragments Found; The Huffington Post; Bonnie Kavoussi; February 11, 2013
Cereal maker recalls product over glass fragments; kval news; February 19, 2013
FDA Safety Recall; February 19, 2013
Sausage products recalled over risk of containing plastic; wsfa; February 21, 2013
Bread recall issued due to possible wires in products; wsfa; February 21, 2013
]]>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.
Sources:
SB 9: The Wrong Bill for Kentucky Seniors; The National Consumer Voice
Senate committee approves panel to review nursing home suits; The Courier-Journal; Jessie Halladay; February 6, 2013
]]>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.
Sources:
After Harvard visit, dozens injured in bus crash; Associated Press; February 3, 2013
At least 8 people killed in Calif. bus crash; Associated Press; Tami Abdollah; February 4, 2013
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.
While the two more recent fatalities did not occur in a Kentucky nursing home, they could have happened anywhere. Please do your research and make well-informed decisions. If you have a friend or relative that you believe is already suffering from nursing home neglect, contact a Kentucky nursing home attorney to discuss the situation.
Sources:
Callis continues wrongful death trial against Rosewood; Madison-St. Clair Record; Christina Stueve Hodges; January 14, 2013
Wrongful death lawsuit filed against nursing home claims furniture fell on patient; The Louisiana Record; Michelle Keahey; January 14, 2013
]]>Slip and fall cases can be tricky. Just because someone is injured when he falls on someone else’s property does not mean he is automatically entitled to compensation for his injuries. Several criteria need to be considered in this type of situation.
1. Was there something that caused the fall?
2. If there was a cause, is it something the property owner was aware of, or should have been aware of?
3. Did the property owner have time to remedy the situation?
4. Did the property owner attempt to alert everyone on the property of the situation?
Let’s look closer at each of the above questions. If you are clumsy and simply trip over your own feet or stub your toe on the floor or doorway, the property owner would most likely not be liable for any injuries. You are just a klutz. If there was a reason you fell – like the floor was extremely uneven or slippery, or the parking lot was covered with ice – then it has to be determined whether or not the property owner should have been aware of it. If it has been cold and snowing for the past several hours, then the property owner, unless he lives in a windowless closet, is probably aware that the sidewalk, driveway, or parking lot could be slippery. But if his new refrigerator that has never leaked before suddenly leaves a puddle on the floor, he may not be aware of it until someone slides through the water.
As shown above, these types of accidents are tricky, and only an experienced Kentucky slip and fall attorney will know the most current laws and whether or not someone who has been injured may have a case. If you have been injured in a slip and fall accident, let Steve Frederick help you determine whether or not you have a case.
]]>In Virginia, it is currently against the law to text while driving. However, law enforcement agencies cannot stop a driver simply for texting and driving because it is only a secondary offense. The texting driver has to be pulled over for some other reason – a primary – offense before they can be charged with texting and driving. Even if they are charged as such, the penalty is only a $20 fine. Two delegates have introduced a bill that would make texting and driving a Class 1 misdemeanor, equal to reckless driving. Drivers found guilty of this offense could face up to a year in prison and a $2,500 fine.
At the opposite extreme of Virginia’s current law is Utah’s texting and driving law, recently amended in 2012. A driver can be pulled over in Utah only for texting and driving; no other offense is needed. However, when the law was first passed in 2009, the driver had to be actively sending a text at the time of the accident in order to be charged. That is no longer the case. As of 2012, any driver who is using their phone for anything other than making a phone call or using the GPS is breaking the law. This includes surfing the Web, reading a text, or using an app.
Another significant factor in the Utah law is that it puts texting and driving in the same category as drunk driving. Instead of being considered an “accident” if someone is texting and causes a crash, the law states that someone who texts and drives is being inherently reckless, similar to a drunk driver who knows the dangers of drinking and driving, but does it anyway. Drivers are very aware of the dangers of texting and driving, so if they still do it, they are knowingly putting themselves and others in harm’s way. Utah drivers who are caught texting and driving can be charged with a misdemeanor and may face up to a $750 fine and a year in jail. If they kill another person while texting and driving, the penalty may be as harsh as 15 years in jail and $10,000 in fines.
This does not mean that drivers distracted by their phones cannot be held accountable for any injuries they cause. It just means that their punishment often comes from civil lawsuits filed by their victims. Anyone who is injured by a driver who was using their phone for something other than making a phone call may be eligible to receive compensatory or punitive damages, or both. An experienced Kentucky car accident attorney will be able to tell them whether or not they have a case and if they should take legal action.
Sources:
B-u-s-t-e-d: Utah’s tougher texting law may nab more drivers; The Salt Lake Tribune; Jessica Miller; October 30, 2012
Lawsuit filed against driver who allegedly killed 15-year-old Vernal boy; The Salt Lake Tribune; Stephen Hunt; January 16, 2013
]]>Medical Misdiagnosis: this type of personal injury occurs when patients are given the wrong information regarding their conditions that often leads to the prescription of wrong medications or incorrect or unnecessary surgeries. A doctor at Cincinnati Children’s Hospital, right over the river from Kentucky, specializes in patients with tuberous sclerosis complex (TSC), which often causes multiple tumors to grow on the kidneys and other organs. He says doctors that are unfamiliar with this condition often see the tumors on the patients’ kidneys and prescribe surgery to remove the tumors or the entire kidney because they think the tumors are cancerous. In reality, though the affected kidneys may look bad, they may be functioning normally, and really do not require surgery or removal.
Surgical Errors: The type of errors in this category range from medical devices being left in the patient during surgery, to surgery being performed on the wrong body part, to internal damage being caused. A young man who had surgery after being shot while playing basketball continued to have bladder infections years after the surgery. His urologist ordered a scan that revealed a sponge that had been left in him during the surgery three years before. This error forced the already-paralyzed young man to endure another surgery to remove the sponge and a six-week recovery.
Doctors go through years of schooling and training before they are allowed to practice medicine. But unfortunately, they do still make mistakes; mistakes that can lead to unnecessary surgeries, serious injuries, or even wrongful death. If you have been a victim of medical malpractice, contact a Kentucky medical malpractice attorney to discuss your situation and determine if legal action should be taken.
Sources:
Medical field works to reduce number of surgical mistakes; Los Angeles Times; Anna Gorman; December 23, 2012
Hospital's mistake leaves single Brooklyn mom with 6 months to live; New York Daily News; Heidi Evans; January 6, 2013
Kidneys sometimes removed unnecessarily due to misdiagnosis of genetic disorder; esciencenews.com; January 11, 2013
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