Georgia Injury Law Blog

Two persons have been confirmed dead in a fire at a nursing home in DeKalb County. An arrest has already been made in the incident, and Atlanta nursing home abuse lawyers have also learned that the facility owner had likely been operating the home without a license.

The house in Stone Mountain had about 7 or 8 residents living at the facility. 

One person died of injuries at the scene, while the other one was taken to hospital and died later from severe burn injuries. At least 4 other people suffered injuries, including mild burns and smoke inhalation.  At least one resident has confirmed that he escaped burn injuries by jumping out of his first storey window.

Police have arrested 26-year-od Joyce Turnipseed and have charged her with arson and homicide. Apparently, Turnipseed had been living at the facility too. The Department of Community Heath has confirmed that it is investigating whether the owner of the facility had a valid license to run the special needs home.

Even if the facility was being run under a valid license, there are other questions that must be asked here. The fire protection systems in the house will definitely be one of the main focuses of the investigation. What kind of fire protection processes were in place here? Were building codes and standards followed stringently?

We know the media and everyone else seems to be focused on whatever is going on at Toyota, but we hope that serious questions will be asked in this incident. Two lives have been lost, and 4 other people have been put through a traumatic experience.  

Posted By Lisa Siegel In Nursing Homes | 0 Comments Permalink

 An unusual murder at a nursing home in Massachusetts is grabbing the interest of nursing home attorneys around the country.  Does the murder of a 100-year-old patient at an elder care facility by her 98-year-old roommate qualify as grounds for neglect by staff?

The incident occurred at a nursing home in Massachusetts. The victim, Elizabeth Barrow and was found strangulated in her bed in September this year. Indicted in her death is Barrow’s roommate, 98-year-old Laura Lundquist. Lundquist will likely not stand trial, and has been ordered by a judge to undergo a competency evaluation.

According to the victim’s son, Scot Barrow, his mother had told him that she had been frequently threatened and harassed by Lundquist. Scott was concerned enough about these threats to bring them to the notice of the nursing home authorities. However, his concerns were shot down by staff who said that the roommates got along just fine.

Obviously, things weren’t as peachy perfect as the nursing home staff hoped. On the night that Barrow died, she apparently complained that Lundquist had blocked her way to the bathroom with a table. The nurses intervened, and got the table removed. The next morning, Barrow was dead in her bed with a plastic bag wrapped around her neck. The table that had been removed the previous night was back at the foot of her bed.

Scott Barrow has confirmed that he asked nursing home authorities if they could place his mother in a separate room from Lundquist. As Atlanta nursing home abuse attorneys, we believe it’s pertinent to ask some questions here. If Barrow’s son had indeed spoken to the nursing home authorities on these concerns, why were no attempts made to separate the two women?

According to the local district attorney, Lundquist has a history of paranoia and other mental issues. Elderly patients at nursing homes do often suffer from dementia, paranoia, depression and other medical conditions, but if Lundquist’s paranoia or hostility was a threat to Barrow’s safety, why wasn’t staff able to pick up on this threat and separate the two, thereby preventing this tragedy?

Posted By Lisa Siegel In Nursing Homes | 0 Comments Permalink

As Atlanta medical malpractice lawyers, we closely follow advancements in patient safety.  With the healthcare debate focusing strongly on medical malpractice lawsuits, hospitals are seeing a great need to cut down on the errors and medical infections that occur in their facilities. A new report by the American Medical Association shows that surveillance systems could be the next big thing in patient safety, helping enforce safety rules and preventing the incidence of preventable errors and infections.

Surveillance of surgeons was in the media spotlight last month, when a Rhode Island hospital was ordered to have video and audio recording devices installed in the operating rooms. The state’s health department ordered the Rhode Island Hospital to install the cameras, after a series of 5 surgical errors occurred at the facility in just two years. These errors were wrong site surgeries, which are some of the most preventable medical errors.

While surgeons at Rhode Island Hospital will now have video cameras recording their surgical moves, doctors in Maryland hospitals could soon have “secret shoppers” hired by the hospital observing their hand hygiene practices. Low hand hygiene compliance rates have been a source of worry to Atlanta medical malpractice lawyers. Poor hand washing practices contribute to thousands of hospital-acquired infections every year. It’s these infection rates that Maryland hospitals are looking to cut with the program that funds hospitals to train people to observe whether doctors, nurses and other staff wash their hands when they come out of a patient’s room. These “secret shoppers” will be trained to blend into the environment, so they don’t stand out and alert doctors they are being watched.

Not every one is excited about the use of such surveillance.  Some warn that this constant surveillance of doctors and healthcare professionals, could make staff feel victimized.  However, we believe these systems could help increase compliance rates and decrease errors, and hope more hospitals in Georgia take up video monitoring to ensure compliance. As long as there continue to be wrong site surgeries in this country, we will continue to push for stronger surveillance of healthcare staff. Hospitals that want to enhance their patient safety record will only benefit from having surveillance systems that enhance compliance rates.

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

Georgia’s Medical Malpractice Law Challenged in Supreme Court

The Georgia Supreme Court is hearing arguments relating to a key provision of the state's tort reform laws, which requires plaintiffs in a medical malpractice action to establish that an emergency room doctor was guilty of gross negligence.

The hearings revolve around the case of Carol Gliemmo, who suffered a sudden headache on April 22^nd 2007, and visited the San Francisco Hospital in Columbus. According to Gliemmo’s lawyers, the ER doctor, Mark Cousineau diagnosed her condition as resulting from stress, prescribed valium, and sent her home. This was even as the 56-year-old Gliemmo continued to scream in agony. Gliemmo suffered a stroke, and has since been left paralyzed and with significant neurological damage.

Cousineau’s lawyer defends his client's treatment of his patient. According to ER nurses, he says, Gliemmo admitted she was feeling better at least three times before she left. According to Gliemmo’s lawyer, Georgia’s medical malpractice reform laws have helped eliminate malpractice claims against hospitals and ER doctors, giving them what he calls" an unconscionable and inequitable advantage.”

This is just the latest challenge to the state's tort reform laws that were passed with great fanfare in 2005. Then, lawmakers supported by hospitals and insurance companies passed sweeping laws that restricted patients' abilities to claim damages for medical malpractice. Last month, the Georgia Supreme Court also heard from another female patient who was severely disfigured after a botched plastic surgery in an Atlanta hospital. A Fulton County jury awarded the woman, Betty Nestlehutt $1.15 million in non-economic damages, against the cap that had been set at $350,000. The hospital has appealed against the verdict.

As Georgia medical malpractice lawyers, we are definitely encouraged to see more challenges being mounted against the draconian laws of 2005. More patients are coming forward to challenge these laws, and there's reason to be optimistic that patient rights to justice will be restored once again.

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

According to the Centers for Disease Control and Prevention, about a million people contract a hospital infection each year. A Consumer Reports survey provides clues to why those rates are so high.

In 2008, Consumer Reports surveyed 731 nurses, and this year, sampled more than 13,500 of its readers, who were polled about recent hospital experiences involving them or a loved one. The findings were surprising.

• 28 percent of nurses reported problems with cleanliness, while only 4 percent of patients reported so.
• 26 percent of nurses saw hospital staff fail to wash their hands before approaching a patient, compared to 5 percent of patients.
• 38 percent of nurses reported problems in coordinating patient care, compared to 13 percent of patients.

Obviously, how you view a hospital experience is very different, depending on whether you're a patient or a nurse. Patients also seem to be less likely to demand higher cleanliness standards from hospital staff. 

The nurses in the survey had a number of tips for patients to make their hospital stay safer.

• Choose your hospital carefully. Do your homework, and look at hospital records and ratings before you make a choice. For complicated treatments like brain surgery, look for a specialized hospital and doctors who have lots of experience in such cases
• Have all your records handy and easy to refer by medical care professionals. List down the current medications you are taking and the dosage. Include the contact information for your primary care doctor to make your hospital admission process easier.
• If your hospital isn’t coordinating care properly, ask for a social worker, patient advocate or case manager. It is your right to ask for such help.
• Don’t assume that cleanliness standards are being followed. Ask nurses to wash their hands in front of you before they attend to you.
• Make sure that you properly understand your discharge instructions. Too often, patients fail to receive proper instructions, leading to drug interactions and other issues that can lead you back to hospital.  

The Georgia medical malpractice attorneys at the Katz law Firm represent injured victims in DeKalb, Gwinnett, and Cobb Counties, and across Georgia.

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

A new report by non-profit organization Public Citizen has placed Georgia on the list of ten worst states based on doctor discipline records. The report takes into consideration the numbers of disciplinary actions taken by the state's boards of medical examiners against negligent physicians. In Georgia, the rate of actions against such doctors is a dismal 2.40 actions for every 1,000 physicians. The state is tenth on the list following Minnesota with a paltry .95 actions per 1,000 doctors, South Carolina, Wisconsin, Mississippi, Connecticut, New Hampshire Maryland, Florida and California.

Not only that, Georgia is also specially marked for criticism as one of the states with the largest decrease in rank for disciplinary action rates. Between 2001 and 20003, the state was at number 15 on the list, while it has dropped to number 42 in this year's report.

Georgia should take a page out of the book of fellow southern states like Kentucky and Louisiana, each of which features in the ten best states for serious disciplinary actions against doctors. That list also includes Alaska where 6.54 serious disciplinary actions were taken for every 1,000 doctors, Kentucky with 5.87 disciplinary actions, Louisiana with 4.74 actions besides Ohio, Arizona, Okalahoma, North Dakota, Iowa, Colorado and Maine.

According to Public Citizen, there's evidence that boards across the country are underperforming in their duty to discipline doctors. A separate report on doctor discipline actions revealed that 67 percent of doctors convicted of insurance fraud and 36 percent convicted for substance abuse were treated only to "non severe discipline." For this report, Public Citizen has focused only on serious disciplinary actions like license suspensions and revocations, and has not taken into consideration minor actions, like fines and reprimands.

State boards of medical examiners have a duty to protect patients from medical malpractice, and disciplining negligent physicians is a vitally important part of the process. Georgia’s medical malpractice lawyers can step in to obtain compensation for patients who have been injured by a doctor’s negligence but it’s the duty of board of medical examiners to ensure that these injuries don’t occur in the first place. The board can do this by taking disciplinary action against doctors at the very first instance of negligence.

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

The Department of Veteran Affairs has confirmed that three patients who were tested at three of its facilities have tested positive for the HIV virus, including one patient from Augusta, Georgia. The two other patients are reportedly from Murfreesboro in Tennessee and Miami.

These patients got tested for HIV after the Veteran Affairs Department asked more than 10,000 people to get tested for HIV, and Hepatitis B and C because of the risk of contamination from tainted endoscopic equipment. The equipment was used in colonoscopies in Murfreesboro and Miami, and also at an ENT clinic in Augusta.  Besides, the department has also confirmed that six people have tested positive for hepatitis B, and nineteen have tested positive for Hepatitis C at these three sites. The VA however does not have evidence that these exposures occurred because of botched medical procedures at the VA facilities.

The problem apparently lay in faulty sterilization of equipment, and dates back more than 5 years, at least at the Miami and Murfressboro hospitals. The agency undertook a nationwide safety training campaign which ended on March 14^th. By April 3^rd, the VA had already confirmed that one person had tested positive for HIV. According to the VA, the number of people who may be at “a very small risk of harm” at the ENT facility in Augusta, is 1,069. The agency has made arrangements for veterans who have tested positive for the disease to receive counseling. There is no information forthcoming on how serious the problem is. Meanwhile, anxious veterans who have used Augusta facilities are waiting their test results.

It’s condemnable when negligence of healthcare workers exposes a patient to a serious health problem, and as Georgia medical malpractice lawyers, we regularly come across the terrible consequences of negligence by medical staff. However, when something like this happens to our men and women who have dedicated their life to the services, it strikes a special chord.

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

There could be not a medical malpractice awardthatcould compensate this boy and his family for the unimaginable horror they have been made to suffer. While a Fulton County Jury has awarded them damages of $2.3 million for a circumcision procedure that went wrong, the boy and his family will need counseling for a very long time.

The award relates to the injury caused to the young boy during what should have been a fairly routine circumcision procedure performed soon after he was born. The procedure however ended with the doctor removing a small portion of the tip of the penis.  There was bungling on the part of more than one doctor at the hospital, Tenet South Fulton Medical Center where the procedure was performed in 2004.  The pediatrician who was informed by a nurse after the boy began to bleed heavily, failed to respond to the call. Due to the negligence and failures of both the doctors, the boy suffered a permanent injury.

In 2006, his mother filed a medical malpractice lawsuit against the doctor who performed the circumcision, as well as the pediatrician who failed to respond to an emergency. The jury was convinced that the doctor Haiba Sonyika snipped off a portion of the organ and that the pediatrician Cheryl J. Kendall could have reattached the cut off portion if she had responded to the emergency immediately. The boy has been awarded $1.8 million in damages, while his mother has been awarded an additional award of $500,000. The hospital where the procedure was performed was not found negligent.

The family's medical malpractice lawyers argued that the boy's injuries were not only permanent, but may also require future medical attention. The magnitude of the boy's injuries, which will last for his lifetime and weigh on his mind constantly, appears to have convinced the jury about the need for a substantial verdict. It isn’t just physical injury or limitations that are involved here, but the boy's sense of self image, his confidence and self esteem, all of which will likely be damaged as he grows older and discovers the extent of his injuries.  

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

The Associated Press has a shocking report about the manner in which spare beds at nursing homes around the country are being filled by mentally ill patients, thus exposing the facility's elderly patients to assaults and abuse.

Across the country, deplorable conditions at mental health institutions have been responsible for the closure of these facilities. Besides, the mentally ill over the past few decades, have benefited from better treatment and more effective drugs which have also played a part in the closure of several of these facilities. This has meant that there are insufficient beds for the mentally ill, and many of them have been shifted to nursing homes instead. In these elder care facilities, these mentally ill patients who suffer from schizophrenia, bipolar disorder and other serious mental conditions are made to share rooms with weak and sick elderly residents, most of who are above 65 years of age. What makes the problem worse is that the mentally ill patients are much younger, and therefore stronger and healthier than their geriatric roommates. This has given rise to a potentially dangerous situation in which the elderly are at risk of violent assaults and even sexual abuse at the hands of the mentally ill.

There is no official data on how many of such assaults on the elderly by their mentally ill roommates have taken place, but numerous cases have been reported. In one instance, in 2003 a mentally ill woman at a nursing home in Hartford, Connecticut, set fire to the nursing home she was living at. Sixteen residents were killed n the inferno. The woman was judged incompetent to stand trial and was committed to a mental institution. There have been other instances of assault, including beatings and rapes of elderly residents.  

According to the report, in 2008 there were approximately 125,000 mentally ill patients living in nursing homes. In Georgia alone, 3300 mentally ill patients are residents at nursing homes meant for the elderly. Nursing home staff members often lack the training to deal with the special mental health challenges posed by these patients. Handling the severe paranoia, delusions, depression, aggression and hallucination that mentally ill patients suffer is impossible in the absence of staff that is trained to deal with such patients.

Georgia Nursing Home Abuse Lawyers

Georgia already has the distinction of being one of the worst states for nursing care with the state ranking number 2, based on the lowest number of top rated nursing homes. Just above 6% of nursing homes in Georgia have a five star rating, and abusive and neglectful conditions at some of the state's homes have kept Georgia nursing home abuse lawyers very busy through the years with elder abuse lawsuits. Adding to the existing problems of under funding and staff shortages is the fact that there are 3300 mentally ill patients living with geriatric residents, creating the perfect recipe for assault and abuse.

Posted By Lisa Siegel In Nursing Homes | 0 Comments Permalink

It looks like Governor Sonny Purdue's plans for tort reform in Georgia have hit the speed breakers sooner than he had anticipated. On March 10^th, the senate approved a substantially tamer version of a bill that would have made plaintiffs pay in the case of a losing lawsuit. The original bill had language approved by Governor Purdue, and would have made the state only the second in the country to make plaintiffs responsible for defendant's legal fees if a lawsuit was dismissed in the early stages.   That "loser pays" language has fortunately been deleted from the bill that has now been approved.    

It's not just the removal of the "loser pays" clause from his pet bill that must be giving the honorable governor heartburn. Earlier in 2009, another tort reform bill, this one too a pet project of Mr. Purdue died an early death in the Senate Economic Development Committee. This one related to the granting of civil lawsuit immunity to biotechnology companies who set up shop in Georgia. The governor announced at a meeting of the Georgia Chamber of Commerce earlier this year that biotechnology companies who wanted to invest in the state would be granted civil immunity from lawsuits in the event of an injury, if their products had been approved by the Food and Drug Administration. That bill, which had been soundly criticized by citizens' justice advocates and Georgia personal injury attorneys as being detrimental to consumer interests, seems well and truly dead, and deservedly so. To contemplate removing citizens' rights to justice and compensation in the event of an injury caused by a pharmaceutical drug or product simply because the drug has FDA approval, is a line of thinking that has just been quashed by the Supreme Court in its recent Wyeth vs. Levine verdict. 

Purdue's insistence that such immunity would open the doors of investment and prosperity to Georgians also rings hollow when you consider that Michigan, which is currently the only state that has such civil lawsuit immunity for pharmaceutical companies, has seen both civil justice and pharmaceutical investment fly out the window, since the bill was passed in that state. To pass a bill like the immunity bill that Purdue was touting, and that too during a recession when citizens need more protection from powerful interests than ever before, would have been a mockery of citizens' rights.

Posted By Lisa Siegel In Tort Reform | 0 Comments Permalink

Earlier this month, justices of the Supreme Court ruled that patients injured through use of a drug can sue the drug maker even when the drug has been approved by the Food and Drug Administration. It's a landmark judgment, and it promises to offer patients who suffer when a pharmaceutical company is negligent, the right to seek civil justice. .

The ruling upheld the $7 million awarded to musician Diane Levine who lost her arm to gangrene after being injected with Wyeth's Phenargan medicine. Levine had been prescribed the drug for nausea, and was administered the drug through a method called "IV push." Phenargan is not meant to be administered though this method. Levine filed a product liability lawsuit alleging that the warnings against the IV push method specified on the box, weren’t strong enough. At the time, the drug's warning label did not include specific warnings against using the IV push method. Levine was awarded damages of $6.7 million, but Wyeth argued that FDA approval should give the company immunity against product liability lawsuits. The SC decision had been eagerly waited by Georgia product liability attorneys and patients who have filed or are in the process of filing personal injury lawsuits against pharmaceutical companies for injuries caused by their drugs. The court in a 6-3 ruling has now ruled in favor of Levine, and the larger patient community.

The decision is one product liability lawyers had hoped for. In the past, the SC has shown a slant towards big business interests, and recent attempts in Georgia to grant immunity to pharmaceutical companies in case of injuries caused by drugs approved by the FDA, had many of us very worried.  As expected, pharmaceutical companies aren’t too pleased with the Supreme Court decision, and we don’t blame them. After all, this means that these companies will not be able to use FDA approval for their drugs as a screen to shield them form lawsuits.  For thousands of patients around the country who have been waiting for the Wyeth vs. Levine decision to proceed with their lawsuits against pharmaceutical companies, much uncertainty has been lifted with the Supreme Court ruling.

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

Medical malpractice lawyers in Georgia will be looking with interest at the outcome of a civil case that's due to begin hearings this week. The judgment in the case that involves four doctors who were cleared of negligence by a jury, has lasting repercussions for medical malpractice lawsuits in the state.

In 2003, 13-year-old Justin Smith was sickened with a rare tick-borne condition called Rocky Mountain spotted fever. The disease is spread by tick bites, and as symptoms worsen, can quickly lead to flat, pink rashes, severe abdominal pain, diarrhea and joint pain. It can be a potentially life threatening illness. Justin was first taken to pediatric doctors, and then transferred to Children's Healthcare of Atlanta at Egleston, where he finally recovered from his illness. By then however, he had already suffered some amount of brain damage. His parents, in their medical malpractice lawsuit against the four doctors, alleged that the doctors had been negligent in falling to diagnose the illness. The doctors claimed that the condition itself is so rare that it's difficult to diagnose. In 2006, the four doctors were cleared of any wrongdoing by the jury.

Now, the Georgia Supreme Court will consider whether instructions given by the judge to the jurors regarding hindsight could have been inaccurate or confusing. Plaintiff's attorneys claim that the hindsight instruction should only be given in case of a claim of negligence where the defendants had no knowledge of certain information. Here, the doctors were aware of the tick bite. The defendant's attorney argue that Justin's rashes, which are a symptom of the fever, only became evident when the child was taken to the Egleston facility, and therefore, the doctors were not aware of the symptomatic rashes.

Pursuing Medical Malpractice Claims in Georgia

Recovering compensation after a medical injury caused by doctors, nurses or other healthcare providers can be a complex process requiring the hiring of expert medical witnesses which can be expensive, and months of research, and probing of medical records and bills.

If you've been injured or suffered an illness as a result of the negligence of a doctor or other healthcare provider, talk to an experienced Georgia medical malpractice attorney at the Katz law firm to help you determine your options for compensation.

Posted By Lisa Siegel In Medical Malpractice | 1 Comments Permalink

Governor Sonny Purdue is at it again – he has proposed legislation aimed at reducing the number of "frivolous" lawsuits," including measures that are clearly aimed at making it harder for plaintiffs to initiate civil litigation against companies. Purdue's proposals, which he unveiled at a breakfast meeting of the Georgia Chamber of Commerce, will mean that plaintiffs have to pay the legal fees of the defendant, in case the lawsuit is dismissed at the earliest stages. Even more disturbing, the legislation will virtually grant immunity to biotechnology companies who have a "significant presence" in the state. That's political speak for giving big name pharmaceutical companies carte blanche, without the drag of accountability to the consumer. Under the proposed laws, a citizen of Georgia cannot sue a company for a defective or dangerous medical device or drug that has received approval of the FDA.

Purdue's proposals, not surprisingly were cheered by the 2500 members of the Chamber at the meeting. The initiatives, the Governor believes, will make the state "even more attractive" to biotechnology companies. The last time Georgia attempted to introduce tort reform in medical malpractice, the resulting storm was intense. That move resulted in senate Bill 3, which severely limits the amount of compensation that a patient who has been injured due to the fault of doctors, or hospitals to $350,000 even in the event of death of the patient due to negligence. Many of the provisions of the Georgia Tort Reform Act of 2005 have been removed as violations of a citizen's constitutional rights. That doesn't seem to have deterred Purdue, who this time around, intends to protect the pharmaceutical industry. Needless to say, the Georgia Trial Lawyers Association has already voiced strong opposition to any such new legislation. 

As we've seen last week in Minnesota, where a judge has thrown out dozens of lawsuits relating to the Medtronic defibrillator leads, device or drug approval from the FDA cannot and shouldn't be allowed to come in the way of a person's right to sue if these approved devices result in injuries. The Sprint Fidelis leads were approved by the FDA, and yet, have caused several deaths and heart injuries, because of fractures or broken wires that caused the defibrillator to malfunction. Now, dozens of injured patients or families of those who died have had their lawsuits dismissed, and their hopes for justice becoming bleaker because of the pre emption doctrine. 

As Georgia personal injury attorneys, we need to take more steps to help the public understand how these legislations will affect them in the event of a medical injury. If Purdue's proposals are passed, citizens lose the one line of defense protecting them from a pharmaceutical company's negligence – the option for civil litigation. If getting these pharma big boys to invest in Georgia is the target, then there are ways to accomplish that without placing citizens' constitutional rights in jeopardy.

Posted By Lisa Siegel In Tort Reform | 0 Comments Permalink

 
Plaintiff, Wendy Wyckstandt, 34, returned to the hospital four days after giving birth due to medical complications of postpartum high blood pressure. She collapsed while taking a shower in her hospital room. When her mother entered her room, she found her near lifeless body in the running water.   She died a day later; her death caused by drowning.

The nursing staff claimed to have checked on her during the day, but video surveillance proved otherwise. The plaintiff’s attorneys claimed the hospital staff altered records and kept evidence from the plaintiff’s attorneys. Eight years of legal wrangling has finally resulted in a huge verdict award for the plaintiff. The hospital has indicated it will appeal the verdict.

According to the National Council of State Boards of Nursing, the number of disciplinary actions for nursing malpractice has risen over the last five years. Once a nurse reports for duty, she or he agrees to care for the assigned patients with that degree of skill, care and diligence exercised by competent and careful nurses. The plaintiff in a malpractice action must prove that had that standard of care been followed, then the injury or damage would not have occurred. 

Nursing standards of care require the nurse to continually assess the patient after the initial assessment, diagnosis and care plan is put into action. Many legal actions against nurses focus on a failure to monitor or recognize changes in the patient’s condition.      

A Google search of hospital deaths similar to the type that Wendy Wyckstandt suffered reveals few, if any, similar cases. Epileptics living in institutional homes and elderly nursing home patients are the few who drown in hospital or hospital-type settings. Not only is this death tragic for its unusual circumstances, but it also defies understanding that anyone could suffer such an accidental death in a setting designed to provide such oversight and care. 

Most likely, the amount of the jury award reflects the jury’s indignation that the hospital allowed this to happen, and even still, perhaps tried to cover it up. We do rely on juries to be enraged by gross negligence and lack of honesty by the defendant. Sadly, the plaintiff’s family has had to live with the litigation surrounding this tragic death for eight long years. And if the hospital appeals, which they certainly are likely to do, then this case is still not over for the family. But for the time being, persistence in the face of injustice triumphed. 

If you or a loved one has been a victim of medical malpractice, contact the law firm of Robert N. Katz for a free, private consultation.   

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

That bill provided that the ER staff cannot be held liable for damages unless it is shown by clear and convincing evidence that the doctor or health care provider’s actions showed “gross negligence.” Gross negligence is defined as the absence of that degree of care that every man of common sense, however inattentive he may be, exercises under the same or similar circumstances. Another common definition of “gross negligence” is “reckless disregard for the safety of the patient.”

In addition to this standard of care change, pain and suffering damages in a medical malpractice case were capped at $350,000. Thus, if you are injured as a result of medical malpractice, your right to recover has been greatly diminished. 

In a case currently pending in Fulton County Superior Court, Plaintiff Cheon Park claims that the malpractice of doctors and attendants in a Douglas County Emergency Room left him a quadriplegic. 

 
Plaintiff Park fell from a 12-foot ladder on December 9, 2006. EMTs immobilized his neck and back with a cervical collar and backboard. He was transported to Wellstar Douglas Hospital. He complained of neck, shoulder and arm pain. His cervical and backboard were removed. After a short workup, he was released. However, he could not move. Family and hospital staff had to carry him to his family automobile. Three days later at Grady Hospital, he was diagnosed with three spinal fractures and spinal cord bruising. He is now a C-4 quadriplegic, having limited use of his arms and no use of his legs. 

 
The plaintiff claims the Tort Reform Act reformed “his constitutional rights right out of existence.” As ER patients are granted a lower standard of care than other patients, his constitutional rights to equal protection of the law were violated.

 
Trial lawyers and civil advocacy groups argued against tort reform, claiming that it deprived victims of constitutional rights and that the medical insurance industry had fostered a false crisis, blaming frivolous lawsuits for driving up premiums when financial markets had actually caused some, but not significant, losses.

 In 2005, advocates for Tort Reform claimed that it would reduce malpractice premiums for doctors, thus lowering insurance rates and attracting more doctors and a variety of insurers to Georgia. 

Records obtained from the Office of the Insurance Commissioner reveal the opposite. Many of Georgia’s insurers raised their premiums since the reforms took place in 2005. 

 Mag Mutual, Georgia’s largest medical malpractice insurer, increased physician premiums by 55.4 percent from 2000-2004. Since 2005, First Professional Insurance requested a 68.3 percent rate increase and was granted a 35 percent rate increase. Medical Assurance Company requested a 64.10 percent rate increase and was granted a 35 percent rate increase. The Medical Protective Company requested two rate hikes, one four months after the Tort Reform Act passed. Rate hikes of 24 percent and 28.8 percent were both allowed. Finally, Medical Mutual Insurance Company received a rate hike of 13.8 percent in January of 2006.

 
All of these rate hikes occurred during a time period when medical payouts to malpractice claimants and plaintiffs have dropped significantly because of limitations created by Georgia Tort Reform Act.

 
Looking at the evidence, the Tort Reform Act has completely failed in its stated purpose of lowering physician premiums. Meanwhile, insurers reveal record-breaking profits. The Property Casualty Insurers Association of America reports rising profits from $3 billion to $41 billion during the period of 2002-2004. The National Association for Insurance Commissioners reports that the property casualty industry holds assets in excess of $1.3 trillion.

Allsion Wall, director of the consumer advocacy group, Georgia Watch, debunks Georgia Tort Reform claiming, “the objective of Senate Bill 3 [The Tort Reform Act of 2005] was to limit the constitutional rights of taxpayers who seek justice.” She adds, “the law does nothing to address price gouging in the insurance industry, nothing to improve access to quality health care for our families, and it removes accountability where it is due – the insurance industry.”

 
Economists at Harvard and Dartmouth published their recent findings in the Cato Institute’s Regulation Magazine. Economists found that caps on medical negligence damages, such as the $350,000 cap in Georgia, have no impact on insurance premiums or the cost of practicing medicine.

 
In May the New England Journal of Medicine cast doubt on the insurance industry’s claim that frivolous malpractice lawsuits were driving up the cost of malpractice insurance. The Harvard researchers found that cases involving real negligence outnumbered frivolous cases two to one. Eighty percent of those cases involved real injuries of significant or catastrophic injury or death. 

 
Piecemeal constitutional attacks on tort reform in Georgia have had some impact. The Georgia Supreme Court ruled unconstitutional that portion of the bill that allowed defendant doctors to demand that cases be heard in their home counties. Last year the court struck down a section that required medical malpractice plaintiffs to open their medical records before they were allowed to file suit.  

A new bill before the legislature this session, Sentate Bill 286, proposes replacing the “gross negligence” standard with “failed to meet the applicable standard of care.” Needless to say, The American Medical Association and Georgia Hospital Association oppose this bill.  

However, the Park case provides an opportunity that the Georgia Tort Reform Act will be struck down in its entirety as unconstitutional. Let’s hope that the court is willing to do what the legislature did not – protect Georgia citizens.

Posted By Lisa Siegel In Tort Reform | 4 Comments Permalink

Thanks in large part to an  investigative report by the Atlanta Journal Constitution this year; attention has been focused on the appalling medical care deficiencies at these hospitals. Justly, these hospitals have become a hotbed of medical malpractice claims. 

In 2007, the hospitals reported twenty-one deaths. One hundred and fifteen patients died in the four-year period from 2002 to 2006. All of these deaths arose from abuse or neglect. Most of these facilities are understaffed and overcrowded. Many of these deaths occurred due to over-medicating, misdiagnosing symptoms, and nurses or aides failing to follow doctor’s orders. 

In 2002, federal regulators cited several deficiencies for correction. In 2006, these deficiencies had still not been corrected. An independent consulting group hired by the governor’s office issued a scathing review of patient care. Federal and state inspectors continually issue citations for failures in basic policy and care. 

Advocates for the mentally ill, such as the National Alliance for Mental Illness, propose that states encourage random hospital visits by families, fund pay increases for nurses and aides, provide medical school loan pay-off programs for doctors who practice in state-run facilities, set up independent board oversight of patient deaths, and remodel out-dated facilities. 

The Department of Human Resources contends that many problems could be improved with more state funding. DHR also believes the state should address community resources for patient care. Mental health patients often need housing, transportation and employment on discharge. Some patients cannot be discharged because they have nowhere to go.

Currently, the United States Department of Justice is investigating Georgia’s state-run hospitals for violations of civil rights laws. The Department of Justice could file a lawsuit in federal court forcing Georgia officials to overhaul the hospitals. 

Governor Sonny Perdue’s spending plan for fiscal years 2008 and 2009 includes $36.2 million to improve the state-run mental health hospitals. However, only $16.4 million counts toward “new” spending. The money will go for higher salaries, increased staffing and more training of employees. Much of the additional funding will go to turn-around efforts at Georgia Regional, Northwest Georgia and West Central State. The other $19.4 million erases deficits created when federal funding fell short of projections. 

One area that remains unfounded is the ombudsman program that was created in 2000, but never implemented because the legislature did not fund it. The ombudsman is to investigate reports of abuse and help families with community placement. 

State legislators and the governor’s office contend that these problems did not arise overnight, and they cannot be solved in one year either. Sadly, the people who will suffer as a result of the state’s poorly run mental hospitals are the patients and their families. 

If you or a member of your family may have a medical malpractice claim against a state-run mental health hospital, contact the law firm of Robert N. Katz for a free, private consultation.    

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink

In 2003, Dr. Andrew Diamond of Northside Ear, Nose and Throat (Northside ENT) performed surgery on plaintiff Nathans to correct his sleep apnea. During the surgery, Nathan suffered bleeding, respiratory distress and lapsed into a coma. After recovering, Nathans and his wife filed a medical malpractice lawsuit against Diamond, claiming he failed to adequately inform him of the risks of the surgery. 

As required in Georgia under O.C.G.A. § 9-11-9.1, all medical malpractice complaints must be filed with an attached affidavit of a medical expert attesting that the defendant deviated from the standard of care. The Nathans attached an affidavit of a pulmonologist from Tampa, Florida.

In the answer and the subsequent motion for summary judgment filed by the defendant, Diamond contended that the attached affidavit was insufficient as the expert was not an ENT. 

The trial court granted summary judgment to Diamond, holding that the expert was not sufficiently qualified to give testimony pursuant to the rules of expert testimony provided by O.C.G.A. § 24-9-67.1. This evidentiary rule (based on a federal rule) provides that expert opinion testimony is admissible if the expert has “actual professional knowledge and experience in the area of practice or specialty in which the opinion is to be given.”   The Georgia Supreme Court upheld the trial court’s decision, holding that in order to be qualified to give an expert opinion, the expert must have “actively practiced in the specialty area with sufficient frequency to establish an appropriate level of knowledge.”

This decision arises out of the rule changes effectuated by the Georgia Tort Reform Act of 2005 that made it harder for plaintiffs to win lawsuits. With this decision, now doctor experts must walk in the same shoes and at the same time as the defendant doctor in medical malpractice cases.

Of note, the expert pulmonologist in issue here is a Harvard trained doctor with 28 years of experience in pulmonology. The plaintiffs contended that the medical complication that arose was a pulmonary complication, not one specific to the ear, nose and throat specialty. The dissent opinion noted this important distinction, claiming that the essence of the medical malpractice was that Diamond failed to inform Nathan of the pulmonary risks of the surgery.

The Georgia Trial Lawyers Association downplays this decision, claiming it won’t have much affect on future medical malpractice cases as the case is fact specific. 

 More constitutional cases are on the horizon challenging the Georgia Tort Reform Act of 2005. The Georgia Supreme Court has yet to decide, Mason vs. Home Depot, S07A1486. In Mason, the defendants challenge another part of the law that tightens standards for expert witness testimony in all civil cases, known as the Daubert Rule. The Daubert rule makes it easier for a trial judge to disqualify expert testimony as being “junk science.” The rule allows the trial judge to be the “gatekeeper” to ensure that expert testimony is based on a “reliable foundation.”   As the rules regarding expert testimony tighten, plaintiffs will face tougher challenges getting their case before a jury. Moreover, fewer plaintiffs’ attorney may want to take on the more challenging cases. 

 With over twenty years of experience in tort litigation, the law firm of Robert N. Katz is very familiar with the changing area of tort law. We look forward to helping you with your claim.       

Posted By Lisa Siegel In Medical Malpractice | 0 Comments Permalink