Your Guide to Medical Malpractice Claims: Chapter 3

Below you will find a few notable medical malpractice stories that cover doctors’ misdiagnosis and mistakes, malpractice suits against doctors, medical malpractice insurance companies and other involved parties.

RHODE ISLAND HOSPITAL

When a patient goes to a hospital for surgery, they trust the care they receive will be the care they expected. Rhode Island Hospital fell into legal trouble when, on three separate occasions, doctors operated on the wrong side of three different patients’ brains. The following year, surgeons operated on the wrong hand of a patient and the wrong side of a patient’s mouth while performing cleft pallet surgery. In total, between 2007 and 2009, five wrong-site surgeries took place at the hospital.

Four of the five surgical errors involved experienced surgeons, adequately trained in performing the operations expected by their patients. The hospital was fined $150,000 by the Rhode Island Department of Health and was required to install cameras while enacting other security procedures to prevent similar outcomes in the future. All surgeries at the hospital required observation by a professional outside the surgical team who had experience and training in surgical safety. Arguably, each of these incidents could be considered a form of medical malpractice.

While the hospital took steps to prevent wrong-site surgery, this form of malpractice continues to happen. Wrong-site surgery is considered entirely preventable and is considered a “never event” in the medical community, meaning it should never happen. In many cases, it is caused by preventable negligence, such as the flipping over of an x-ray, failure to check the name of a patient or failure to check the patient’s file.

Undergoing Anesthesia Awareness

It may sound like a nightmare, but it is not completely unheard of. Each year, roughly 1 in 1,000 people suffer from anesthesia awareness. Anesthesia awareness occurs when patients are placed under general anesthetic but “wake up” or become aware of their surgery during their treatment. Some patients report being unable to move and hearing doctors and medical staff speaking during the surgery. The problem occurs in 1-2 out of every 1,000 patients under general anesthesia.

Anesthesia awareness is a preventable situation. It can be caused by lack of proper monitoring of the patient or by the incorrect administration of general anesthetic. If you have been awake during surgery, consult with a medical misdiagnosis attorney. If you have suffered emotional trauma or other damages, you may have a claim.

One patient who experienced anesthesia awareness is Carol Weihrer. In 1998, Weihrer went in for surgery to have her right eye removed. Coming after she suffered pain from a severely scratched cornea and underwent 17 surgeries to attempt to remedy the situation, the surgery was a last resort. Weihrer woke up during surgery unable to move but able to feel pain and hear the doctors performing her operation speaking.

Weiher’s medical malpractice case was settled outside of court. Patients who suffer from anesthesia awareness do not only suffer during the incident. Many experience post-traumatic stress syndrome and require intense counseling to try to move forward and live normal lives. Cases such as these can often be considered medical malpractice.

BIRTH INJURY

Birth injuries can be catastrophic, affecting the lives of the mother, child and others involved in the birth. In many cases, medical malpractice is a viable consideration — but it may not ultimately be a case where compensation is awarded.

One example of a medical malpractice birth injury that almost led to compensation for the family involved Rebecca Fielding. In 2010, after a failed homebirth, Fielding was rushed to Johns Hopkins for an emergency caesarean section, for which she had to wait over two hours. This delay was later ruled to have caused a permanent brain injury to the child.

As a result of the negligence that led to the delay that caused the injury, the Fielding family was awarded $55 million in damages, though the court later overturned that judgment because of a technicality. The family planned to appeal this decision.

Birth injuries can result due to labor and delivery negligence or due to medical negligence during the mother’s pregnancy. Common injuries include injuries to an infant caused by incorrect use of vacuum extractors or forceps. Failure to order a C-section in time during a difficult pregnancy can also result in life-long injuries to a child, since the child may not get enough oxygen during a difficult birth process.

Common birth injuries include:

• Cerebral palsy, which is a neurological disorder which causes stiffness in the body and can limit movement
• Brachial plexus injuries, which are damage to nerve fibers
• Clavicle fractures
• Erb’s palsy or injuries to the infant’s arms and shoulders
• Horner’s Syndrome, or damage to the sympathetic trunk nerves
• Seizures
• Infant fatality
• Fetal lacerations, which are usually cuts caused by scalpels and other medical instruments
• Caput succedaneum, or swelling of the infant’s scalp
• Injuries to the mother
• Mother fatality

When birth injury occurs, it is important for concerned parents to consult with a medical malpractice doctor. Some birth injuries can result in permanent injury which will require a lifetime of care for the infant. Malpractice suits against doctors in birth injury cases can help parents seek damages so they can pay for quality care for their infant. Damages can also assist parents grieving over serious injuries their child has suffered.

In birth injury claims, courts will examine whether an injury was preventable and caused by negligence. This often hinges on medical testimony from gynecologists, midwives or other medical professionals. If these professionals state the actions or omissions of a doctor causing the injury were negligent and were not the reasonable actions which would have been taken by a peer, the family may have a claim. Families, however, will need to prove the injuries were caused by negligence and not by a birth defect or genetics.

As with all cases, although trauma may be tangible and painful for families and loved ones, there may not be a clear answer as to judgments and damages. This uncertainty is why it is imperative to have trusted legal counsel advocating on your behalf.

Experiencing Surgical Error

Certain risks are considered “acceptable” during surgery. These risks are usually outlined on the waivers signed before procedures take place. Sometimes, the errors are above and beyond what can be considered acceptable. Surgical malpractice is more common than you may realize.

A surgical error in 2011 during the 25^th surgery performed on a six-year-old boy by Dr. Mark Holterman in Chicago left the child with an irreversible brain injury and cerebral palsy.

The child had a complicated medical history, as evidenced by the 25 surgeries. However, during this procedure, an inappropriate suturing device was used to repair the child’s esophagus, which punctured the child’s pulmonary artery. As a result of the physical injuries that took place, the family was awarded a $30 million settlement, the fourth-largest payout in the state of Illinois for surgery involving a child.

Surgical errors vary from one situation to the next. This is just one example of the harm that can be caused by negligence during surgery.

Surgical “never events,” or events which should never happen, occur about 4,000 times each year. Surgical errors can occur before surgery, during the treatment or during post-operative care. It can also be challenging to pursue doctors and medical malpractice insurance companies in these claims because more than one medical professional may be liable.

Surgical errors can be caused by many preventable events:

• Poor communication between surgical team members
• Doctor fatigue
• Distraction
• Inexperience
• Rushed schedules leading to rush decisions
• Lack of proper tests and diagnostics before the surgery
• Not checking patient records, x-rays or other data to prevent wrong site or wrong patient errors

Common surgical mistakes include:

• Wrong site errors
• Wrong procedure errors
• Wrong patient errors
• Anesthetic malpractice
• Medication errors
• Injury to internal organs during surgery
• Nerve damage
• Foreign objects left in the body during surgery
• Post-operative infections

When surgical errors cause serious harm and are caused by negligence, injured patients may have a claim.

In surgical error cases, it is important to consult with a qualified medical malpractice attorney, because these cases can be complex. They often require a critical overview of the events which occurred before, during and after the surgical procedure. They also often depend on the testimony of a surgeon from the same area of practice.

Malpractice attorneys have a network of medical professionals they can consult and they have both the trial and negotiating experience to pursue these claims.

Suffering Delayed Diagnosis

Like cases in which a doctor misdiagnosed a condition, delayed diagnoses are common. Diagnosis errors account for 29% of all successful malpractice litigation cases. Causes of delayed diagnoses include:

• A physician ordering the wrong test or tests
• Not reading the test results properly
• Miscommunication between healthcare providers
• A doctor not listening to patient descriptions of symptoms
• Failure to refer a patient to a specialist
• Failing to pursue abnormal results further

Delayed diagnoses are especially prevalent in cancer cases. In 1997, a patient was awarded significant damages after a doctor failed to perform a mammogram after the patient requested it. Instead, the test was performed by another doctor five and a half months later, during which cancer was found in both breasts. It had spread to the patient’s bones, making it incurable. The patient sued the doctor for the delayed diagnosis and was awarded over $77,000 in medical expenses, $5,000 in pain and suffering and $5,000 for a lost chance of survival.

One challenge with delayed diagnosis is that this type of medical malpractice can prove deadly. When heart attack, stroke, aneurysm, cancer, sepsis and other patients do not get a correct diagnosis in time, they may suffer fatal injury.

Unfortunately, these cases can also be challenging to pursue in a medical malpractice claim. Since the patient has an underlying condition, it can be difficult to prove that it was the delayed diagnosis and not the condition itself which led to the fatality. In cases such as these, patients can use what is known as the “Increased Risk of Harm” theory to pursue their claim.

The Increased Risk of Harm theory deems that doctors can be held liable if a patient or plaintiff can prove that a doctor’s negligence increased the risk of a patient’s death. In most medical malpractice claims, patients need to prove direct causation. That is, they need to prove that a doctor’s negligence directly led to an injury. With the Increased Risk of Harm theory, patients who have been injured when a doctor misdiagnosed or belatedly diagnosed them can still hold a medical professional liable even in cases where proving direct causation is not possible.

In almost all delayed diagnosis claims, testimony from a medical expert in the same field as the doctor accused of negligence is important. Medical professionals can testify that they and any reasonable professional would not have acted as the negligent doctor did. This helps establish negligence and proves that the negligent physician violated the duty of care they owed their patient.

To secure the testimony of an oncologist, radiologist or other medical professional, you will want to work with a medical malpractice attorney. An attorney can help you with every stage of your claim, including negotiations, filing a claim, preparing for trial and representing you in court.

As evidenced by the above cases, each medical malpractice case is different, and the compensation amounts awarded vary greatly from one case to another. Obtaining a professional opinion on your case before taking any action is critical.

If you have your own medical malpractice story in Pennsylvania and may have suffered an injury due to medical malpractice, contact KBG Injury Law for a consultation. Our team of attorneys has more than 30 years of involvement handling misdiagnosis, surgical error, birth injury, emergency room negligence and other medical malpractice claims. We always treat you with dignity and we strive to bring you the results you deserve.

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Table of Contents

• Introduction/Chapter 1: What Is Medical Malpractice?
• Chapter 2: How Can You Prove Medical Malpractice Occurred?
• Chapter 3: Medical Malpractice Stories
• Chapter 4: What Are Typical Medical Malpractice Defenses?
• Chapter 5: Important Information Relating to Medical Malpractice
• Chapter 6: Steps to Pursue If You or a Loved One Has Been Injured
• Chapter 7: Selecting the Right Medical Malpractice Lawyers
• Conclusion/Chapter 8: How You Can Avoid a Medical Malpractice Issue