New Mexico Injury Attorney Blog

The 10th Circuit recently addressed the reduction of state Medicaid liens against personal injury settlements in Price v. Wolford. The case involved a medical malpractice action brought on behalf of child that suffered severe brain injuries during delivery. The case settled for $1.1. million for the birth related injuries. The Oklahoma Health Care Authority (OHCA) asserted a Medicaid lien of $544,282.26 against the settlement. The district court reduced the Medicaid lien to $67,666.67 in proportion to value of the settlement in relation to the total value of the claim as well as for non-medical related damages.

Essentially the district court relied upon the plaintiff's valuation of the child's future medical costs at $12 million. The reduction also relied of Arkansas Dept. of Health and Human Services v. Ahlborn where the Supreme Court asserted that Medicaid may recover only against that portion of the settlement reflecting recovery of medical expenses. Compensation for other damages such as lost income, pain and suffering, loss of enjoyment of life and so on are beyond the reach of the lien. Due to the recovery of only a portion of the claimed medical expenses as well as the existence of significant non-medical damages, the district court substantially reduced the OCHA lien.

OHCA appealed on several grounds. The 10th Circuit denied their appeals on all but one issue which was whether the plaintiff had provided sufficient evidence of the value of the claim to justify the lien reduction over the objections of OHCA. The 10th Circuit found that insufficient evidence had been presented to justify the valuation. Thus the case was sent back to district court for the purpose of valuating the child's claim.

Notably, OHCA was present at the settlement conference where the claims were settled. It is not clear why the Medicaid lien was not addressed at that time. Due to the difficulties of dealing with Medicaid and Medicare, and the harsh consequences of failure to properly negotiate liens in advance of settlement, it is equally unclear why these issues were not addressed prior to the settlement conference.

In light of the fact that OHCA was present at the settlement conference, there may have been a dispute as to the value of the lien at that time. Perhaps, OHCA was taking an unreasonable position on its lien refusing the legally mandated reduction under Alhborn and federal statute. In any event, failure to reach an agreement on the lien at settlement laid the foundation for OHCA's later unreasonable intervention and demand for the full value of its lien.

This case points out the importance of negotiated lien reduction in advance of any settlement. Unfortunately, these liens may dictate the settlement options. In the event that Medicaid takes a unreasonable position as OHCA has done in this case, settlement may not be possible without the intervention of the court. This intervention should be sought in advance of settlement to avoid the unfortunate outcome here.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

The Albuquerque Journal recently reported on a surgical checklist proposed by the World Health Organization to reduce operating room errors. The contents on the list are pretty simple including pre-surgical procedures for verifying the surgical procedure with the surgical team, verifying the identity of the patient before beginning surgery, marking the surgical site with a pen or marker, verifying patient allergies, verifying that all necessary equipment is in the operating room and working properly, verifying all necessary x-rays and other images are in the operating room and at the end of surgery, making sure that all equipment and supplies are accounted for to avoid the embarrassing and often very serious oversight of leaving stuff inside the patient.

The New England Journal of Medicine reported that the checklist was effective in the 8 cities around the world that utilized the list and in those hospitals using the list, post-operative complications, including deaths, fell by 36 percent. The World Health Organization found that inpatient deaths following major operations fell by more than 40%. The Albuquerque Journal reported that Presbyterian Kaseman Hospital alone expects to save 162 lives this year using a version of the checklist.

Oddly, the authors of the New England Journal of Medicine study indicated "Whereas the evidence of improvement in surgical outcomes is substantial and robust, the exact mechanism of improvement is less clear and most likely multifactorial." Most people would go the other direction asking why in the world there has been no such checklist in the past. Most people, including those patients and their families that undergo 234 million surgical procedures each year around the world, probably assumed that there was and always has been such a checklist. People make checklists when they go to the grocery store. Is it really too much to ask that surgical teams exercise the same level of planning?

This report is disturbing on many levels. Is it really to be viewed as a medical breakthrough of sorts that surgical staff would begin to verify the patient, procedure and surgical site prior to operating? It is remarkable that Presbyterian Kaseman, according the Albuquerque Journal, expects to save 162 lives this year through implementation of the checklist. Most would consider failure to perform these basic tasks to be negligent, arguably grossly negligent. And one would be justified in asking, "If 162 lives can be saved through these simple procedures this year, what about those 162 lives lost last year and the year before as result of the failure to implement these seemingly obvious surgical procedures?"

These reports come out in the midst of ongoing Tort Reform battles to limit or bar medical malpractice lawsuits, continued movement for limits on medical malpractice claims, and generally growing and expensive obstacles to such claims by injured patients or their survivors. When hearing this report, the rather unbelievable assertion by the Institute of Medicine that up to 98,000 patients die each year in the United States as a result of medical negligence makes perfect sense. It would also tend to make any reasonable patient nervous about any surgical procedure knowing that very few hospitals have implemented the checklist and that Tort Reformers and medical industry lobbyist are hard at work to limit claims by a patient in the event that he or she is among that 98,000 next year.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

There were 11,773 DWI deaths nationally in 2008. These numbers are alarming. It is absolutely unacceptable to allow drivers to endanger the safety of others. A drunk driving death has enormous consequences causing severe and irreparable damages for the family, the children, the friends and loved ones that survive. Those that cause these harms, or even threaten these harms, must be stopped at all costs. And when they do cause harm, they must be held fully accountable in every way. Personal responsibility is the foundation of democracy. Agreed?

Contrast these numbers, the outrage associated with these tragedies and the policies to address them with the myth of the medical malpractice crisis. The Hippocratic Oath states, "FIRST, DO NO HARM." It is hard to explain how this Oath justifies the rabid opposition to compensation of victims of medical negligence. The National Academy of Sciences Institute of Medicine estimates that up to 98,000 people die every year as a result of medical negligence. That is almost 9 times the number of DWI related deaths. Where is the outrage?

When viewed against this backdrop, the Hippocratic Oath is rendered meaningless. It is difficult to explain or justify until you realize what is really behind Tort Reform. There is another and overriding oath decreed by the Insurance Industry, the Hypocritic Oath, which states, "FIRST, SEE NO HARM." This explains why Tort Reformers can continue to rant about the mythical medical malpractice lawsuit crisis while denying the true crisis completely. The Hypocritic Oath explains why worker's compensation laws in every state provide pennies on the dollars for damages suffered by injured or killed workers. It explains why worker's compensation laws are drafted and enacted under the pretext of protecting workers when it is really to protect employers against responsibility from their own negligence, and sometimes recklessness, that leads to the injury or death of workers. It explains why these arguments can be made in the face of the reality that there are well over 5000 work related deaths a year according to the Bureau of Labor Statistics, while thousands more suffer permanent and crippling non-fatal injuries, many of which are the result of unsafe working environments or conditions. It explains how Transocean can fight for liability limits of $27 million for its negligence in the BP spill while collecting hundreds of millions of dollars to compensate for its own losses from the very same spill. And on it goes. The Hypocritic Oath is everywhere you find the insurance industry.

The Hypocritic Oath dictates that the insurance industry, purportedly on behalf o their client corporations, doctors and employers should spend millions upon millions every year on Tort Reform to dodge their responsibilities to individuals and society. It dictates that taxpayers pick up the costs for their harms with Medicaid, Medicare, Social Security, bank bailouts, TARP, disaster relief and assistance, liability caps and limits and countless other governmental measures made necessary by the Hypocritic Oath. Tort reform is not about protecting doctors. It certainly is not about protecting patients, workers, families or society. It is about protecting profits, plain and simple.

Collins & Collins, P.C.
Albuquerque Attorneys
www.CollinsAttorneys.com

When you Google MRI Risk, MRI Dangers, and so on, the results for the most part indicate that there are no risks. Yet despite the apparent absence of risks of an MRI, a 6 year old boy was killed during an MRI procedure. How could this happen in a presumably risk free procedure? Gross medical negligence?

The child, Michael Colombini, was killed in an MRI chamber when an oxygen tank, drawn by the MRI's 10 ton electromagnet, flew into the chamber striking the child in the head. A staffer at the Westchester Medical Center left the oxygen tank in the MRI room despite the universal ban of such metal objects from MRI rooms.

The case settled for $2.9 million while the case was pending in New York state court. The hospital accepted liability within days of the tragic incident. However, the hospital's offer of $1 million to settle quietly was refused by the child's family. The child's family subsequently filed a wrongful death action against the hospital and nine other defendants, including the supervising doctors, technicians, the MRI administration company, the MRI manufacturer and a nurse. The suit included medical malpractice, products liability, and wrongful death claims. The suit demanded compensatory damages, damages for pain and suffering, emotional distress to the father who was present during the accident and punitive damages.

After 9 years of litigation, the medical malpractice and wrongful death suit was settled for $2.9 million on the eve of trial. The settlement surprised many in the New York legal community for a couple of reasons. Unlike New Mexico, New York prohibits recovery for the parents' loss of love and affection of their child (loss of consortium in New Mexico). Instead, recovery in New York wrongful death cases typically is entirely dependent upon economic losses or lost wages. As such, a child's life in New York has very little value in the courts since a child has unproven income potential. Certainly, tort reformers can come up with a strong argument for such an atrocious and callous valuation of a child's life.

What would cause the hospital in this case to settle for $2.9 million under such defense favorable circumstances? Though the New York appellate courts will often greatly reduce punitive damage awards, potential punitive damages in this case may have swayed the hospital. In addition, there was the possibility of a large emotional distress award for the father who was at the scene when his child was killed. Finally, the attorneys for the family, Matthew Gaier and Tom Moore, were relentless in the pursuit of justice in this case.

No parent could ever place a value on their child's life. The court's in New York place little value on a child's life. Moreover, the New York appellate courts apparently do not lend the same deference to a jury's award of punitive damages as the Courts of New Mexico.

Fortunately, there are trial lawyers like Matthew Gaier and Tom Moore that will step up and fight for families who have lost children. Thankfully for patients and families in New Mexico, the Appellate Courts here protect the individual against corporate interests earning them the designation of "judicial hellhole" by tort reformers.

Who could argue that the hospital and the staffer were not grossly negligent? There was clearly a lack of procedure and oversight to protect against such gross incompetence. There was likely also insufficient training and supervision of the staffer. How could a metal oxygen tank be placed in a room with a 10 ton electromagnet in the absence of gross negligence at each and every level of the MRI facility? It couldn't. Yet tort reformers will continue to press for medical malpractice limits even in the face of rampant medical negligence in hospitals across the country that leads to incidents such as these placing each of us, and our children at risk every time we must visit a hospital. And without punitive damages, there is no real deterrent to this kind of behavior.

www.CollinsAttorneys.com

The 10th Circuit case of Willis v. Bender addressed a doctor's duties to disclose the doctor's background information to a patient as part of informed consent. Lack of informed consent is often an element in medical malpractice claims in New Mexico particularly in surgical procedures.

Under New Mexico law, informed consent does not typically require that a physician provide the patient with the doctor's background information even matters related to competence. The courts reason that such a duty would require the disclosure of large amounts of information not necessarily relevant to the patient's medical decision-making.

However, the 10th Circuit Court of Appeals (Wyoming) in Willis v. Bender addressed a situation where the patient explicitly inquired into the doctor's background, and the doctor provided false and misleading information in response to the patient's inquiry. The Court found that in this case, a failure to provide honest and truthful answers to the patient's questions violated the patient's right and the doctor's duty of informed consent.

Willis v. Bender involved a laparoscopic cholecystectomy, laparoscopic surgery to remove Ms. Willis' gallbladder. Ms. Willis had several prior surgeries in her abdominal area causing significant abdominal scarring and adhesions. Due to the scarring and adhesions, the doctor who performed two of the prior surgeries advised Ms. Willis that future surgeries should be performed with an "open" rather than "closed" procedure.

During the consults leading up the surgery with Dr. Bender, Ms. Willis discussed the need for a closed procedure due to the scarring. Ms. Willis asked a number of questions of Dr. Bender regarding his qualifications for the procedure, his past history of such procedures, his success rate, past medical malpractice complaints and prior issues with his license. She also requested that Dr. Bender consult with her prior doctor prior to moving forward with the closed procedure.

Dr. Bender assured Ms. Willis that he had never had a medical malpractice complaint, had no prior issues with his license, that he had a 99.9% success rate with this type of procedure and that he had discussed the procedure with her prior doctor suggesting the two had agreed on the proposed approach to the surgery. In fact, Dr. Bender had had a several prior medical malpractice claims, one involving a wrongful death action resulting from a the death of a patient following a laparoscopic cholecystectomy. In addition, Dr. Bender had past actions against his license by the Wyoming Board of Medicine. Perhaps worst of all in light of the facts, Dr. Bender had never contacted Ms. Willis' prior doctor to consult regarding the risks of the proposed closed procedure.

Unfortunately, the closed procedure did not go well due to the existing scar tissue. There were several surgical and post-surgical complications including a bowel perforation and a resulting bowel obstruction, ileus, and severe infection.

The 10th Circuit recognized that a doctor generally has no duty to disclose background information. However, the court stated, "Under these circumstances, if proved, her consent can hardly be considered "informed."" As a result, the Court reversed the District Court's summary judgment in favor of Dr. Bender.

Willis v. Bender raises some important issues. As seen in previous posts, hospitals and surgery carry an alarming level of risks. Patient's are advised "Protect Thyself" by taking measures to protect themselves from harm. In light of the lack of an affirmative duty on the part of the physician to disclose relevant background information, a patient should ask the questions. In the great majority of cases, the doctor will respond honestly. However, in those rare situations where the doctor is not honest, the patient will have some recourse for the misrepresentations assuming New Mexico follows the lead of the 10th Circuit Court of Appeals.

www.CollinsAttorneys.com

In my last article, I addressed the high medical error rate in U.S. hospitals. The numbers are staggering and completely undermine tort reform arguments, medical malpractice award caps, and all those fighting healthcare reform that invariably use the myth of frivolous medical malpractice lawsuits in their attacks on reform.

The medical community recognizes the high error rates in hospitals and has responded stating that it is taking step to reduce medical mistakes. The Joint Commission, which accredits hospitals, launched a program called "Speak Up" to encourage patients to protect themselves from medical error. At the same time, it was recognized that medical professionals do not always respond positively or listen to input from patients with doctors interrupting their patients on average after only 23 seconds of this essential input. The Joint Commission stated further, "One way that you can help us is by checking everything we do." Hum?

Thus, the medical community recognizes the problem and at least partly passes responsibility to the patient. Naturally, the medical community does not back down on its arguments for lower medical malpractice award caps. Nor does it recognize that the typical response in case of medical errors is a denial of liability and it is this denial that forces litigation and pushes the evil trial lawyers into action.

The tips on surviving a hospital stay are interesting, and lead one to wander about the veracity and the motivations of the Tort Reform arguments. You are encouraged to bring an advocate to speak up for you when you are unable to speak up for yourself. I guess this would be following almost any surgery.

This leads to the next nugget of wisdom in surviving your hospital stay, "Avoid Wrong Site Surgery." It is said that your surgeon, or you I suppose keeping in mind the propensity of doctors to ignore their patients mentioned above, should mark your surgery site. That is sound advice. You would hope that this would be a high priority in surgery, but apparently the patient is ultimately responsible for this detail.

The patient should also prepare a full "health profile" listing medical conditions, allergies, and medications. As a patient, it is further suggested that you should bring all medications with you to avoid misspelling the names, or misstating the dosage and usage directions. Again, this is a task most patients would assume the medical staff would address. And realistically, shouldn't a patient be entitled to this expectation?

I will address just one more hospital survival tip set forth in the USA Today article. A patient should check all medications before accepting them from the medical professional dispensing the drug. In addition, the patient should make sure the medical professional dispensing the medication knows who you are insuring that they read your identification wristband. I guess a necessary follow up suggestion would be, "Don't fall asleep in the hospital."

These survival tips are more frightening than helpful. In fact, many patients are simply not able to perform these duties. Even educated and motivated patients would have trouble with the complete medical profile. The very suggestion that a patient should be responsible for marking a surgical site completely undercuts all legitimacy of tort reform arguments, medical malpractice caps and the myth of frivolous medical malpractice lawsuits. Will there come a day when the patient is then held responsible for incorrectly marking the surgical location?

What is the motivation of the Tort Reform movement? It clearly is not the protection of the public. The same question and conclusions arise when you raise the motivations of those fighting against healthcare reform. Draw your own conclusions. And eat your vegetables.

www.CollinsAttorneys.com

The debate over healthcare reform always leads eventually to the evil of trial attorneys. It has become a mantra of any self respecting conservative politician that medical malpractice lawsuits are crippling the healthcare system while victimizing the good doctors and nurses around the country who strive only to serve the public good.

Having read some of the statistics on medical errors, it is frivolous medical malpractice lawsuits are pure myth. Looking into it further, to be sure, I came across a cite to a 2007 article from USA Today entitled "Patient Protect Thyself" by Liz Szabo. I googled the title, and surprisingly numerous articles came up with similar names. Interestingly, there were also a number of self-help guides written so that patients and their families could protect them from harm at the hands of doctors, nurses and staff during a stay in the hospital. USA Today had such an article as did Reader's Digest which is not known for its liberal bias.

So the question arises if these and other news outlets have seen fit to publish guides for patients to protect themselves against medical errors and negligence, how big is the problem and how big is the myth? The answer is BIG! Frighteningly so for anyone facing hospitalization. Here are some of the numbers from the USA Today article:

• A Harvard School of Public Health study found that 34% of all people, and 50% of those with chronic conditions, report that they or a family member have experienced a medical error.
• The Institute of Medicine estimates that hospitalized patients will suffer at least one medication error per day during a hospital stay.
• It is estimated that as many as 98,000 Americans die each year as a result of medical error. By contrast, 58,148 soldiers died during the entire Vietnam War from 1958 to 1973.
• According to the Centers for Disease Control and Prevention, close to 2 million patients per year catch an infection in the hospital and nearly 90,000 die, while it is estimated that only about 35% of hospital employees consistently wash their hands before contact with a patient.

These statistics are pretty sobering. How do you survive these odds? USA Today and others have created checklists. Basically, it is up to you. The medical profession has come to the conclusion that it is the patient that must take the initiative to protect him or herself. It is hard to know what to think of these conclusions and even more difficult to reconcile these conclusions with Tort Reform arguments.

A few of the more surprising survival skills needed to survive a hospital stay in American will be addressed next. I caution you in advance, the helpful survival tips provide little comfort to those facing a hospital stay, and raise even more questions regarding the claims of medical malpractice litigation abuse by the Tort Reformers.

www.CollinsAttorneys.com

A report by Public Citizen debunks the myth of frivolous medical malpractice claims. In fact, the report indicates that medical malpractice payments are at record lows.

The report provides some interesting statistics that the tort reform movement neglects to mention in their constant ranting about trial lawyers preying on the medical community. The report states that there are a least 3 deaths caused by medical errors for every single medical malpractice payment of any kind.

These statistics make clear that medical malpractice awards are actually rare, and perhaps more rare than can be justified by public safety. Public Citizen reviewed the National Practitioner Data Bank which has been tracking this data since 1990. The group found that there were only 11,037 payments in 2008 nationally. This number was right at 31% lower than the average number of payments in all previous years.

These numbers reflect 13.5 medical malpractice payments per million physicians in 2006 which apparently is the last available data for the number of practicing physicians U.S. The costs of medical malpractice, including insurance premiums, is one fifth of one percent of all health care costs.

In fact, if anything, there are far fewer lawsuits than are justified by actual medical negligence. The Public Citizen report cites a 1999 study entitled "To Err Is Human" from the Institute of Medicine's (IOM). The IOM study found that between 44,000 and 98,000 Americans die each year due to avoidable medical errors. In 1999, fewer than 15,000 people total, including non-fatal incidents, received any compensation at all for their injuries. In 2008, that number was just over 11,000.

These numbers clearly illustrate the falsity of tort reform arguments. Medical malpractice is not a burden on health care. In fact, the vast majority of those injured by medical malpractice receive no compensation of any kind. Likewise, the doctors and hospitals responsible for those injuries escape the burden of their harmful behavior.

Instead, the financial burden is shifted from the responsible medical provider to the innocent patient who may have suffered permanent injuries or death. The burden is shifted to the patient and his or her family who may have suffered catastrophic damages in the form of permanent impairment or wrongful death along with the resulting loss of income to the family. In turn, this burden is most often shifted to society as a whole when future medical care, which may last a lifetime, must be provided by Medicaid or Medicare. It is shifted further to society when the injured person is placed on Social Security Disability, or the family is left destitute in the case of wrongful death.

The title of the IOM report sums it up "To Err is Human." Doctors, as do we all, do make mistakes. The rest of us pay for our mistakes. Why is the medical profession exempt? What about going to medical school justifies that doctors, who have our health and lives in their hands, should be immune from responsibility for their mistakes?

The professions should be held to a higher standard than the general public, not a lower standard. Acceptance of responsibility for harm done to patients is fundamental to professionalism. The absence of responsibility is a disservice to the public, and a disservice to the vast majority of medical professionals that do perform their jobs professionally and competently.

Should any industry that causes 44,000 to 98,000 deaths per year through the negligence or incompetence of its some of its members be allowed to cry injustice because their insurance premiums have gone up slightly? Perhaps they should be arguing against their insurance companies and not against the compensation of injured patients.

Birth injuries often have permanent and catastrophic consequences for the injured baby and the family. Birth injuries are not always preventable. There are birth injuries that simply cannot be avoided. On the other hand, birth injuries on many occasions result from medical negligence. In these cases, the child and the family are entitled to the recovery of damages caused by the medical malpractice.

Medical malpractice claims are generally very difficult to bring. There is a strong presumption that the doctor or doctors acted in a professional manner. It must be proven that the doctors' care fell below, and generally well below, the established standard of care in the medical community. The doctor is basically held only to a standard of care that could be reasonably expected under the circumstances.

Proving a doctor negligent is much easier said than done. In addition, doctors and hospitals are often very reluctant to admit medical negligence. As a result, the injured plaintiff must typically obtain an expert medical opinion of his or her establishing the medical negligence. A medical malpractice claim can be long, difficult, emotionally stressful and financially expensive, and in the end juries are often extremely sympathetic to doctors giving them every benefit of the doubt.

This makes verdicts like two recent medical malpractice birth injury cases in New York very remarkable. Both cases, as is often the case in birth injury cases, involved oxygen deprivation at delivery. One case involved a 25 year old plaintiff, Tiffany Busone, who suffered cerebral palsy and spastic quadriplegia due to oxygen deprivation. In addition, the doctors failed to resuscitate her or to recognize that the umbilical cord was suffocating her aggravating her injuries. The second case also involved a 3 year old plaintiff, Diego Baizan, who suffered oxygen deprivation during delivery with the baby in oxygen distress during delivery for over an hour before the doctors ordered a Caesarian delivery. Again, the oxygen deprivation caused cerebral palsy which is common result of this type of birth injury.

In both these cases, the plaintiffs were awarded very large jury verdicts. Tiffany Busone was awarded $43.5 million while Diego Baizan old was awarded $77 million. In the case of Diego Baizan the $77 million verdict was against the hospital who unlike the doctor in the case refused to settle pretrial. Ms. Busone suffered primarily physical injuries and was functioning at a high intellectual level. Diego Baizan suffered severe brain damage. Each will require a lifetime of medical care and treatment for their injuries.

These cases bring up a couple of interesting legal points. The first regards the statute of limitations. In New Mexico, the statute of limitations is only 3 years for these types of claims. In cases of injuries to children, the statute is tolled until the child reaches 18 so that the suit typically can be brought within one year of the child's 18th birthday. A similar tolling statute was clearly in place in New York.

In addition, the damages awards in each bring up interesting points regarding the calculation of damages. An injured person can recover for a host of damages including permanent injuries, pain and suffering, past and future medical damages, and future lost wages. In cases of serious physical injuries such as cerebral palsy and brain injuries, these damages can be enormous due to the future medical care which might include around the clock nursing care. In addition, these injuries bring with them huge potential lost earnings claims. Even at minimum wages, a lifetime of lost earnings can add up to some huge economic damage awards.

These cases illustrate the preposterous nature of all the tort reform debate and the constant thrashing that opportunistic politicians give trial attorneys. Put yourself in the shoes of these two plaintiffs, and their families, and then argue that suits against doctors and hospitals should be stopped to protect the medical profession. The public, injured patients, and the medical profession itself are all harmed when medical negligence is allowed to go unchecked. In addition, without medical malpractice claims, the public, rather than the responsible medical providers, is left to carry the burden of caring for these unfortunate victims of medical malpractice through Medicaid and Medicare.

www.ColllinsAttorneys.com

It seems that juries across the country are equally appalled by nursing home abuse and neglect as they are in Albuquerque. An Albuquerque jury recently dinged ResCare, Inc. and ResCare New Mexico for $54 million for nursing home neglect and abuse. Notably, the punitive damages awarded against ResCare approached $50 million.

The ResCare case involved the rape of a severely disabled man by a staff member. The recent case out of Brooklyn involved severe neglect that led to extremely serious bedsores all over the injured patient's body. In addition, after only 9 months in the facility, John Danzy's weight had dropped right at 90 pounds to 147 pounds. Despite transfer to another facility, Mr. Danzy later died as a result of the infections.

It took the jury 2 days of deliberation to reach a verdict of $19 million in total damages against the facility in favor of Mr. Danzy's estate. Much like the ResCare verdict, the bulk of the damages were punitive in nature. The jury awarded $15 million in punitive damages for the facility's cover up of its neglect. The plaintiff was able to establish through expert testimony that the facility had gone back and doctored the file in an attempt to cover up the onset, duration, and aggravation of the bed sores as a result of ongoing medical neglect.

The plaintiff's attorneys believed as did the jury that the nursing home had gone back and altered the records once it was apparent they were facing a lawsuit. The jury sent a message to the nursing home industry, and the medical profession as a whole, that attempted evasion of responsibility for medical or nursing home neglect will not be tolerated. This same message was sent in the ResCare case where the defendant denied responsibility to the bitter end. The case of Mr. Danzy was even more appalling where not only was responsibility denied, the facility actively concealed its medical neglect through the alteration of medical records.

It is interesting that the New Mexico verdict was almost 4 times the New York verdict. It is a good sign for New Mexico nursing home plaintiffs with serious claims of nursing home abuse and neglect. This is particularly so in light of New Mexico's appellate courts reluctance to overturn punitive damage awards, as illustrated in Jolley v. Energen. The court there stated that the punitive damages award would not be overturned unless it was so unrelated to the plaintiff's injuries as to "plainly suggest passion and prejudice over reason and justice." This gives the plaintiff a lot of bargaining room when it comes time for negotiating the settlement during the inevitable appeals that follow such awards in New Mexico.

www.CollinsAttorneys.com

A jury awarded a family $7.4 million for the brain damage that their child suffered as a result of an untreated infection at birth. The child, Paris Campen, suffered brain damage when the neonatal intensive care unit at Cedars-Sinai Medical Center failed to properly treat the newborn's infection.

As a result of the medical malpractice of the medical staff in failing to treat the birth related infection, the child developed meningitis which caused the child permanent brain damage. The child will have a permanent shunt in her brain to prevent excess fluid and further brain damage. In addition, she will undergo a lifetime of behavioral and physical therapy.

The child's mother, an emergency room doctor at UCLA Medical Center, had raised the issue of infection with the doctors at Cedars Sinai. They ignored her. This kind of arrogance is often at the root of medical malpractice and medical negligence. Doctors often ignore their staff members and nurses, who many times due to close contact with the patient are more knowledgeable of the patient's needs than the doctor. The arrogance in this case is even more remarkable in the doctors' refusal to listen to the child's own mother who happened also to be a doctor.

Meningitis in newborns is extremely serious. In addition, this type of birth injury is not so uncommon that it should not be checked if even remotely possible. Immediate diagnosis and treatment is essential to prevent, hearing loss, learning disabilities, and in this case brain damage. Failure to properly diagnose and treat meningitis in newborns is a significant departure from the standard of care expected in the medical profession.

Though this case occurred in California, these same issues arise in Albuquerque and throughout the state of New Mexico. Medical malpractice lawsuits in New Mexico are challenging to say the least. Doctors are given every benefit of the doubt under the law. In the case of public facilities, there are other layers of protection include Tort Claims Notice Requirements and Tort Claims limits. Moreover, doctors are highly respected throughout society so that juries are reluctant to find fault with physicians. The same type of arrogance that drives doctors to ignore their staff, nurses, mothers and fellow doctors also results many times of an absolute denial of responsibility even in clear cases of negligence. Couple all this with all the nonsense regarding tort reform, and the constant barrage of misinformation regarding the strain that these types of cases place on the medical profession, and medical malpractice claims of any kind face an uphill battle.

However, in cases like this where a child is permanently harmed through the gross negligence of a medical staff explained only by the refusal of the doctors to acknowledge the concerns of a mother and fellow medical professional, the jury obviously felt the doctors' care fell so far below the medical industry standard care that a strong message had to be sent.

A verdict, even a $7.4 million verdict will never fully compensate a child and a family burdened with a lifetime of suffering. However, these verdicts serve society in forcing a medical profession buttressed by the support of tort reformers and opportunistic politicians to behave responsibly. The medical profession must recognize that with its great privilege comes great responsibility, perhaps at least in this case, the greatest responsibility of all which is to protect defenseless newborns and their families from preventable harm.

www.CollinsAttorneys.com

An Ohio jury awarded an 8 year old and his family the largest medical malpractice award in the state's history. The 8 year old child, Leondo Stanziano, suffers from cerebral palsy as result of the medical malpractice of the hospital where he was born. The jury awarded Leondo and his family $31 million in damages.

During his delivery in December 2000, Leondo was deprived of oxygen for 18 to 20 minutes. The oxygen deprivation caused serious birth injuries including permanent brain damage and cerebral palsy.

Cerebral palsy permanent disability involving movement control and muscle coordination disorders. In addition, it causes seizures, sensory impairments and severe cognitive limitations. It is typically the result of birth injury related brain damage. Leondo will never walk or talk and will require 24 hour care for the remainder of his life.

The lawsuit was filed on behalf of the family and Leondo against the hospital as well as the doctor for a broad range of damages for medical negligent. The suit alleged that the doctor and the hospital knew of the mother's high risk for uterine rupture but failed to properly monitor the delivery. In addition, the suit alleged the labor inducing drug Pitocin was negligently used causing hyper stimulation of the patient's uterus which ultimately did burst. Expert testimony established that the hospital's nursing was negligent in continuing Pitocin despite abnormal contraction patterns throughout labor and delivery causing enormous stress on the uterus and prior birth related incision scars.

The family's expert testified that Leondo's life expectancy would be 70 years. Based upon the 70 year life expectancy, the plaintiff's attorney asked for an award of $2.5 million in future lost earnings and $25.9 million in future health care costs. Remarkably, the defense countered saying Leondo would only live to be 20 due to his injuries suggesting to the jury that Leondo should be awarded only $7000/year for medical care over the remainder of his severely shortened 20 year life span.

Apparently, the jury was not pleased with the callousness of the defense's argument. Nor were they moved by its twisted logic that somehow Leondo should receive far less for his injuries since he would soon be dead anyway as a result of the hospital's negligence. The jury did not buy the hospital's argument that its liability should be reduced in essence because the hospital absurdly argued Leondo had suffered greater harm than claimed by the plaintiff.

Unfortunately, many times the defense will take this position attempting to reduce human loss to a simple calculation of future medical costs and lost earnings. These are calculated just as would be an annuity. Often, this logic will carry the day at trial. They then ironically try to argue for a greatly reduced life span to minimize these damages over the life of the injured person.

The jury in this case clearly looked past the simple mathematical formulas upon which the defense attempted to value Leondo's life, health and future. Clearly, the plaintiff's attorneys kept the focus on the human loss and out of the realm of mathematical annuities where the defense would prefer to keep the focus.

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GlaxoSmithKline has paid around $1 billion in Paxil settlements for litigation related to birth defects, suicides, and addiction as well as some non-medical related litigation. There remain 600 birth defect lawsuits pending so that the settlements are likely to grow much larger in the coming months and years.

Bloomberg News reports that Glaxo has spent almost $400 million in suicide related lawsuits, $200 million in addiction and birth defect litigation, and $400 for claims unrelated to antitrust, fraud and design.

Paxil was first approved in 1992 for the treatment of depression. It is among the most frequently prescribed drugs on the market with sales close to $1 billion in 2008. Unfortunately, the drug has many side effects including suicidal ideation, birth defects, and addiction. The drug maker failed to warn users and doctors of these known side effects.

The drug has been clearly linked to suicide. It is reported that there have been 300+ suicide attempts with an average settlement of $300,000. In addition, there have been around 150 wrongful death lawsuits related to suicide related deaths.

Paxil used during pregnancy has been linked to birth defects including persistent pulmonary hyper-tension in newborns along with other congenital heart defects. The average settlement costs for the birth defect cases has been in the range of $4 million. There remain around 600 birth defect related lawsuits outstanding.

Analysts have estimated potential liability of $1.5 billion in damages before it is all over. Glaxo has not disclosed the total numbers. However, the company has disclosed that it set aside $3.09 billion for legal and other non-tax disputes including litigation at year end 2008.

The numbers seem pretty large but pale in comparison to the $21 billion necessary to resolve 200,000 personal injury lawsuits against Pfizer for the diet drug fen-phen. However, the scope of the problems in the Paxil lawsuits is unique with a range of serious side-effects from birth defects to suicide. It is very unusual for one drug to present such a wide range of problems for its users.

It is important to the public that the settlement numbers be disclosed. First, it helps to alert the public to the problems with Paxil. More importantly, it alerts doctors and other medical providers of the risks of the drug. This puts a burden on doctors to both research the drug and to know their patients before routinely prescribing the drug as seems to have been the case in the past.

The sheer volume of the prescriptions of the drug suggests that perhaps some doctors have not given it the proper medical attention. The next wave of lawsuits will likely be against doctors for medical malpractice in the negligent prescription of the drug as they can no longer argue that they were unaware of the dangerous side effects.

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An apology works in medical malpractice claims in 35 states. In fact, the "Sorry Works" program has been put into legislation in 35 states. Unfortunately, New Mexico is not among them. Instead, New Mexico often takes same hard-line on medical malpractice against its states facilities and other medical providers. It is not quite as harsh as the no settlement policy that former Albuquerque Mayor Martin Chavez took in police misconduct cases. But it is equally costly to the state.

The power of an apology in medical malpractice claims, the foundation of the "Sorry Works" program, is illustrated by the recent settlement of a lawsuit filed against Rhode Island hospital by Oscar-nominated actor James Woods for the wrongful death of his brother. Of course, the apology came in the 4th week of trial. But when it came, the case quickly settled. The hospital finally apologized, acknowledged its wrongdoing, and agreed to start an institute in the name of the famed actor's brother. The institute will of all things work toward the prevention of human errors in hospital care.

In addition to the apology, the Woods family received an undisclosed financial settlement. Michael Woods died of a heart attack at 49 years old after going to the ER for a sore throat and vomiting. The Woods family claimed the hospital did not provide adequate or sufficient care to prevent his avoidable death.

Interestingly, Rhode Island is not among the states that have adopted "Sorry Works" legislation. Perhaps had they adopted the legislation, the apology would have come much sooner avoiding the costs and hardship associated with litigation on both the Woods family as well as the doctors and staff of the hospital. After all, Mr. Woods died in 2006. Did the hospital administrators really just now discover in a moment of enlightenment that their doctors and staff had done something wrong? And to boot, decide that they would create an institute toward avoiding errors similar to those newly discovered errors in flash of enlightenment? It's not likely. Instead, they likely saw the trial headed south, and they wanted to avoid a catastrophic verdict. The Woods lawyers likely understood this as well. Yet the apology still brought a quick resolution to the case.

The "Sorry Works" movement has grown rapidly over recent years. The program recognizes that often what a family or victim needs most is recognition of their injuries and acknowledgement of a wrong committed, along with fair compensation for their injuries. This means acceptance of responsibility and liability for the negligent actions and the damages they cause. Instead, many hospitals and doctors take the opposite approach much like Albuquerque's mayor which is to admit no wrong, and settle nothing without a fight.

Where there is truly wrongdoing and injury, this approach is devastating to the victim and financially disastrous for the state's medical providers as they end up paying in the end. The only beneficiaries of this approach are the defense attorneys who feed at the trough of governmental legal defense.

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