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BREACH BUT NO DAMAGE
Published on: August 29, 2016 | Dean Law Firm, LLC
In October of 2011, Dwayne Schwartz side-swiped Susan Christ while he was trying to pass a stopped bus; Schwartz was travelling approximately ten miles per hour. After the accident, both drivers moved their cars to the side of the rode and at that time Mrs. Christ got out of her car and began running up and down the street looking for witnesses. The police were called to the accident scene and when they attempted to talk to Mr. Schwartz, Ms. Christ continuously interrupted them, stepping in between Mr. Schwartz and the police. It was not until Ms. Christ's husband, Jon Christ, arrived that Ms. Christ began to complain of pain in her shoulder, neck and back. Mr. Christ offered to drive Ms. Christ home, but she refused and drove herself home.
The day after the accident, Ms. Christ went to her family physician, Dr. Gregory Babikian, complaining of neck and back pain. She was prescribed muscle relaxers and physical therapy. Ignoring the recommendation of her doctor, Ms. Christ began to see a massage therapist instead. It was not until January of 2012 that Ms. Christ finally went to physical therapy. While, Ms. Christ saw some improvement, a year after the accident she was still complaining of neck pain. In June of 2012, Ms. Christ began seeing a new physician, Dr. Fahime Lessani, complaining of ongoing pain and reduced range of motion. Dr. Lessani ordered x-rays and an MRI, which showed no injury or abnormalities. Ms. Christ was referred to a rheumatologist; she only went once. Dr. Lessani prescribed more physical therapy.
Between October and August of 2013, Ms. Christ received no treatment with concern to pain and injuries from the October 2011 accident. However, in August 2013, Ms. Christ filed a lawsuit against Mr. Schwartz for negligence and Mr. Christ, in the same suit, claimed a loss of consortium. Also, in August 2013, Ms. Christ began seeing a new rheumatologist, Dr. Frank Kozin. She told Dr. Kozin in the two years since the accident, she had experienced constant pain in her neck and upper back. Dr. Kozin diagnosed her with residuals of whiplash injury that was going to be a permanent process.
Where There's a Will, There Isn't Always a Way
Paul L. Kurth died in Missoula, Montana on January 26, 2000; he was 82 years old. At the time of his death he was living with his niece and her husband, Sinda and Marty Puryer. According to Mr. Puryer, two years prior to Mr. Kurth's death, Mr. Kurth dictated his will to Mr. Puryer. In the will, entitled "Instructions and Last Will and Testament of Paul L. Kurth," Mr. Kurth left everything he owned to the Puryers. The will was signed by Mr. Kurth and witnessed by Mr. Puryer and a long term care giver. In 2001, a year after Mr. Kurth's death, Mrs. Puryer hired an attorney to administer Mr. Kurth's estate. The attorney collected the personal assets of Mr. Kurth's estate and distributed them to the Puryers, according to the holographic will of Mr. Kurth's and an affidavit signed by Mrs. Puryer attesting to the legitimacy of the will. Past that point of administration, the Puryers never formally probated Mr. Kurth's will.
In addition to the Mr. Kurth's personal property, he held a real property interest in mineral rights in eastern Montana. In 2013, thirteen years after Mr. Kurth's death, an oil and gas company contacted Bruce Barstis, one of Mr. Kurth's nephews, in hopes of leasing the minerals. Mr. Barstis promptly retained an attorney and notified all of Mr. Kurth's heirs (he was never married and had no children, he was survived by three siblings and nine nieces and nephews) that his estate needed to be probated to effect the transfer of his real property interest. Mr. Barstis offered to act as the estate's personal representative. As soon as Mr. Puryer received the notice from Mr. Barstis he filed a Petition for Formal Probate of Will and Appointment of Personal Representative.
Mr. Barstis challenged the alleged will on multiple grounds, including that the time for probate had passed and that the exceptions to the time frame did not apply. According to §72-3-122(1), a will must be probated within three years after the death of the decedent with some exceptions. If the will is not probated within that time frame and does not fit into one of the exceptions, then the will cannot be accepted for probate and the decedent is considered to have died intestate, meaning without a will. The District Court held that the time to probate the will had expired and that the Puryers did not meet the exceptions; therefore, Mr. Kurth died intestate and the estate must proceed under Montana intestacy statutes. The Puryers appealed the decision. The Supreme Court of the State of Montana affirmed the District Court's decision.
Florida Case Law and Trust and Probate
The Plaintiff's Burden: Medical Malpractice and Standard of Care
On July 22, 2016, the Idaho Supreme Court affirmed the verdict in Morrison v. St. Luke's Regional Medical Center, Ltd.; Joachim G. Franklin, M.D., and Emergency Medicine of Idaho, P.A. The jury in the case had found that Dr. Franklin had not failed to meet the applicable standard of health care practice in Idaho and, therefore, was not liable for the death of Mitchell Morrison.
Mitchell Morrison went to the emergency room at St. Luke's Regional Medical Center, Ltd. ("St. Luke's"), complaining of chest pain. Once admitted, Mr. Mitchell was seen by Dr. Joachim G. Franklin. Dr. Franklin took a history of Mr. Mitchell, conducted a thorough physical examination and ordered the appropriate tests. Based upon the results, Dr. Franklin determined that Mr. Morrison was not having a heart attack and was safe for discharge. However, Dr. Franklin did recommend that Mr. Morrison contact a cardiologist the next day to schedule an appointment and to contact his primary care physician. In fact, Dr. Franklin had the emergency department fax its documentation to Mr. Morrison's physician the next day and the physician's medical assistant called Mr. Morrison, leaving a message to schedule an appointment; Mr. Morrison did not call his physician back.
The next day, December 27, 2011, Barbara Morrison, Mr. Morrison's wife, called several cardiologists attempting to schedule an appointment for her husband. The soonest appointment that Mr. Morrison could get was three weeks away. On January 11, 2012, Mr. Morrison died of a heart attack.
North Broward Hospital v. Kalitan and the Possible Death of Medical Malpractice Caps
Published on: July 27, 2016 | Dean Law Firm, LLC
In 2003, then Governor Jeb Bush signed into law Fla. Stat.§ 766.118, which capped the amount of recovery a plaintiff could receive from defendants for medical malpractice. The medical community claimed that doctors were fleeing Florida because of the sky-high cost of medical malpractice insurance and these caps would help to keep doctors in Florida and attract doctors to Florida. This statute limited noneconomic damages, otherwise known as pain and suffering, to between $500,000 and $1.5 million, depending on whether the healthcare provider is deemed a "practitioner" or a "nonpractitioner" and if the plaintiff died, was left in a vegetative state, or can prove "catastrophic injury."
In November of 2006, Susan Kalitan arrived at Broward General Hospital for an out-patient carpal tunnel surgery, which is performed under general anesthesia. While the doctor and two nurses were administering the anesthesia, Kalitan's esophagus was punctured. When she awoke in the recovery room, she immediately began complaining of chest and back pain, but because her heart rate and rhythm appeared normal, her complaints were ignored and she was sent home where her health deteriorated. The next morning Kalitan was discovered by a friend and rushed to the hospital. Kalitan was diagnosed with a perforated esophagus. Due to the perforation, fluid and food had escaped her esophagus and found its way into her chest cavity for more than 24 hours, causing a life-threatening infection. Kalitan had to have chest and neck surgery performed to remove the foreign material from her chest and remove the infection. She was then placed into a drug induced coma for three weeks while she recovered and fed through a feeding tube. When Kalitan awoke from her coma she remained in the hospital for several more weeks; she underwent speech pathology to learn to speak and swallow again and physical therapy to learn how to walk again. Kalitan remained on a feeding tube for six months. These are just of few of the complication that Kalitan continued to suffer because of the negligence of the anesthesiologist and Broward General Hospital.
In 2008 Kalitan filed a medical malpractice suit against North Broward Hospital District ("North Broward") and the doctors and nurses who administered the anesthesia and their employers. In 2011 the case went to trial and the jury found the anesthesiologist, nurse anesthetist, student nurse anesthetist and the nurses at North Broward negligent and awarded her $4,718,000 in damages; $718,000 in economic damages and $4,000,000 in non-economic damages. Unfortunately, because of Fla. Stat.§ 766.118, Kalitan's damages were reduced by the trial judge to $2,793,011. Both Kalitan and the Defendants appealed the decision and the Fourth District Court of Appeals reversed based upon the Florida Supreme Court's decision in Estate of McCall v. United States, 134 So.3d 894 (Fla. 2014). In McCall the Court found that the caps in Fla. Stat.§ 766.118 were unconstitutional in multiple claimant personal injury cases.
Florida Case Law, Insurance Company Issues and Medical Malpractice
Uninsured/Underinsured Motorist Coverage: The Good, the Bad, and the Ugly
Etherton v. Owners Insurance Company:
On December 19, 2007, Donald Etherton was rear-ended. Mr. Etherton's back was injured in the collision and he had to endure three back surgeries to repair the damaged disc in his spine. The other driver's insurance settled with Mr. Etherton for $250,000, the policy limits. Because that amount did not cover all of his expenses from the accident, Mr. Etherton filed a claim with his uninsured/underinsured motorist coverage for $750,000, the remainder of his $1,000,000 policy limits.
For six months, Mr. Etherton and Owners Insurance Company ("Owners") communicated frequently; with Owners repeatedly stating that it needed additional information to assess Mr. Etherton's claim. On December 30, 2009, Owners offered to settle for $150,000. Owner's noted in their explanation for such a low offer that there were serious questions of causation. Despite continued attempts to come to an agreeable settlement for both, Mr. Etherton and Owners failed to resolve the matter and Mr. Etherton initiated his suit in Colorado state court in March of 2010 for breach of contract and unreasonable delay or denial of a claim.
Changes Needed as Diagnostic Errors Become More Frequent
Diagnostic errors are defined as any mistake or failure in the diagnostic process leading to missed, wrong, or delayed diagnoses. Diagnostic errors make up the largest number of malpractice claims in the U.S. today. Researchers at Johns Hopkins Medical Center, Baltimore, reviewed all U.S. paid malpractice claims from the past 25 years, and found that diagnostic errors accounted for the largest fraction of claims, the most severe patient harm, and the highest amount of payouts. One report predicts most people will experience at least one wrong or delayed diagnoses over their lifetime. One conservative estimate stated 1 in 20 adults who seek outpatient care every year will experience an error in their diagnoses. Unfortunately, up until recently, diagnostic errors had been a mostly unrecognized area of patient safety.Most of these errors are not even realized. Often, diagnostic errors result from poor coordination of care. Doctors not paying attention when writing a prescription, or nurses not being careful with medication are two often-seen examples. However, some doctors may realize the misdiagnoses, but choose not to confront the patient as a way to save face if the problem isn't serious. Getting the right diagnosis is critical, because it is the starting point for every other health care decision.
Patients can help tremendously in making sure they get the right diagnosis, experts say. Make sure to always be clear, complete and concise when describing your illness. Describe when your symptoms began and what made them better or worse. Remember past treatments. Letting your doctor know what medicines helped and what side effects they had can save you and your doctor time and frustration. Ask your clinician questions such as 'What could be causing my problem?', and be sure to always get a second opinion as well.
If you or a loved one has recently been provided the wrong medication or medical treatment, you may be entitled to monetary compensation. To learn more about medical malpractice cases, and to speak to a dedicated attorney about your case, call one of the skilled personal injury advocates at the Dean Law Firm at 352-387-8700.
Tagged: Medical Malpractice and Misdiagnoses
State Supreme Court Rules on Admissibility of Expert Testimony in Medical Malpractice Case
Earlier this month, the Supreme Court of Mississippi allowed a victim of alleged medical malpractice to put up an expert witness to testify as to whether the victim may have avoided having a stroke had the defendant hospital provided him with the proper medical care. In the case of Memorial Hospital at Gulfport v. White, the plaintiff was a patient at Memorial Hospital who claimed that the Hospital's negligence in failing to diagnose his pre-stroke symptoms contributed to his having a stroke in the days after he visited the hospital.
According to the court's opinion, White first went to a different medical center complaining of slurred speech and tingling in his arms and legs. Staff at that hospital conducted a CT scan, which came back negative, and they sent White home with no treatment.
The next day, White continued to have slurred speech and was now experiencing numbness on the left side of his body. He went to the emergency room at Memorial Hospital, where he was diagnosed with hypertension, given medication, and sent home. He was advised to follow up with his primary care physician in a few days.
Medical Malpractice and Personal Injury Case Law
Three Dead, Five Injured in Fatal Lecanto Car Accident
Late last month, a fatal accident tragically claimed the lives of one young couple and injured six other people. According to one local news source, the accident occurred around 4:40 in the afternoon in Lecanto, Florida, between W. Grover Cleveland Boulevard and C.R. 491.
Evidently, a Suzuki Aerio was traveling eastbound when for an unknown reason it crossed the center line and collided with a Toyota Prius. The Prius struck the passenger side of the Aerio, and both vehicles ended up on the north side of the road.
The driver of the Aerio and her passenger were both pronounced dead at the scene of the accident. There was another three-year-old passenger in the back seat who sustained major injuries but is currently listed in stable condition. The Prius had five occupants in total, all of whom were taken to the hospital for emergency treatment. One day after the accident, a 78-year-old passenger passed away from the injuries she sustained in the accident.
Seventh Circuit Court of Appeals Denies Plaintiffs' Attempt to Stack Underinsured Motorist Limits
The U.S. Seventh Circuit Court of Appeals released a decision earlier this month, affirming a U.S. District Court decision that denied the plaintiffs' attempt to collect on an underinsured motorist claim. The plaintiffs attempted to aggregate the policy limits for underinsured motorist coverage in a case filed against their own insurance company after an accident in which they suffered more damages than the settlement they accepted from the other driver's insurance company would compensate them for.
The Court ruled that the insurance company is not required to allow clients to stack the policy limits of multiple covered vehicles to increase the coverage limit for damages caused to a single vehicle in a single accident. The Court further ruled that if the insurance company does allow the policy limits to aggregate based on the number of covered vehicles, they may correspondingly aggregate the setoff payment amounts received from the at-fault party's insurance company against each vehicle's policy limit, meaning that the plaintiffs will not recover more than the policy limit for a single vehicle.
Insurance Company Issues and Personal Injury Case Law
Appellate Court Allows Slip-and-Fall Plaintiff's Case to Proceed Past Summary Judgment Motion
Earlier this month, an appellate court in California heard a case brought by a woman and her husband against the gym at which they were both members after the woman was injured while working out at the facility. In the case, Chavez v. 24 Hour Fitness, the plaintiff sustained a traumatic brain injury after being struck in the head by a workout machine. She sued the gym under several legal theories, including premises liability, product liability, traditional negligence, and gross negligence.
The evidence showed that there was preventative maintenance that the manufacturer of the machine suggested be performed. However, 24 Hour Fitness was not able to prove that the maintenance was performed routinely, and importantly it was unable to show the last time that the machine was serviced. 24 Hour Fitness was able to show some of the repair and service records, but those were incomplete and therefore inconclusive as to the issue of whether the recommended maintenance was actually completed.
Additionally, the plaintiffs put on several employees of the gym who testified that several machines were usually out of repair at any given time, and that they have seen cables snap while customers were using the machines.