Articles Posted in medical malpractice

Stem cells have been on the forefront of exciting new research in recent years. However, it seems some clinics have gone too far in promising what stem cell treatments can offer. Of the more than 550 known stem cell clinics nationwide, a significant number offer relief for everything from sports injuries to autism to Alzheimer’s disease to multiple sclerosis. In reality, there is scant evidence these treatments offer any beneficial outcomes for these patients, and worse, in some cases the treatments may result in serious and life-altering harm. lab work

Recently, The Washington Post reported on three incidents at a south Florida clinic that was offering unproven stem cell treatments as a “clinical trial.” Three female patients with visual impairment agreed to participate, in the hope the treatments might help improve their vision. Instead, it rendered them all three completely blind.

This was reported in a recent article in the New England Journal of Medicine, which outlines this as one of the most egregious instances of personal injury involving a stem cell. There are at least a handful of stem cell clinics here in North Carolina, including in Charlotte and Cary. The services of one were recently detailed in The Charlotte Observer, with the clinicians promising non-surgical relief for sports injuries and chronic joint pain. Stem cell injections were touted as a “regenerative” alternative to hip replacement or knee replacement surgery. Continue reading

A series of bills aligned with the so-called “tort reform” agenda have been introduced and are working their way through the civil justice system. These measures, long advocated by doctors, and large corporations, would fundamentally alter key protections for plaintiffs in injury lawsuits. supreme court

This “tort reform” moniker makes it sound as if such measures would be fixing major flaws in the civil justice system. In reality, these actions would make it tougher for those injured to obtain justice. Tort reform ideals are predicated on the notion that courts are overburdened with a flood of frivolous lawsuits. Greedy plaintiffs and injury attorneys are simply out to take advantage of businesses and physicians to make a buck. Health care costs and other expenses are out of control, they say, due to litigious patients and customers.

Here’s the truth: The burden of proof to bring any claim is already substantial. For example, it’s not enough that you slipped and fell in the store and were hurt. You have to show you had the right to be there. You have to show the store owed you a duty of care. You have to prove the staff either created the dangerous condition on the floor or had actual knowledge of it or should have learned of in the course of regular options and failed to address in a manner deemed timely or else warned of it. Oh, and if the condition was open and obvious, there is an expectation you should have seen it an avoided it. In North Carolina, if you are found to be even slightly responsible for the incident (a legal theory known as comparative negligence), you can’t win your case.  Continue reading

Arbitration agreements are becoming an increasingly common way for businesses and service providers to limit their liability. These agreements, which can be either expressly signed or, in some cases, implied with purchase, strip the consumer of the ability to take any disputes regarding the product or service – including those that stem from injuries – to the court. Instead, consumers are compelled to resolve the matter in arbitration. doctor

Why does this matter? Because arbitration and the court system are not equal, and in many ways, there are stark disadvantages for personal injury plaintiffs. First and foremost is the fact that arbitrators tend to favor the business or service provider. Research has shown that even when awards are granted in a plaintiff’s favor, they tend to be smaller than the awards issued in court. Arbitrators do not have to follow the law, and arbitration proceedings are not public. There is also no right to appellate review if one side believes the determination is unfair.

Arbitration agreements are considered binding contracts, so their enforceability is weighed according to North Carolina’s contract law. There are a number of challenges that can be asserted, including a finding that the arbitration agreement is unconscionable. This means the contract is so overwhelmingly one-sided or unjust in favor of the party with superior bargaining power as to be contrary to good conscience. This was what was alleged in a recent medical malpractice lawsuit before the North Carolina Court of Appeals.

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In any personal injury lawsuit, it’s important to have a skilled lawyer for several reasons. The first is that while the truth most assuredly matters, what also matters is what is provable. Ensuring that important evidence is timely admitted or that harmful evidence is suppressed if possible is imperative. Understanding and adhering to the procedural guidelines is critical. doctor

In medical malpractice lawsuits in particular, there is often so much at stake. These cases are complex and time-consuming and require detailed testimony from numerous expert witnesses. You don’t want to invest that kind of time, only to have efforts fail based on a procedural technicality. You need a lawyer and a law firm committed to being detail-oriented.

medical malpractice lawsuit out of California shows what can happen when attorneys on both sides fail to mind important procedural details. This was a case in which plaintiff was rendered quadriplegic after being admitted as a patient at the defendant hospital. The hospital argued that while it was negligent in plaintiff’s treatment, this was not the cause of his quadriplegia. Plaintiff later died. The matter before the California Supreme Court was whether a motion for a new trial was timely filed and also whether the objection to that motion was timely filed. The answer to both questions was no, but the defendant’s failure to timely object to plaintiff’s late motion for a new trial meant that the case would be scheduled for a re-trial.  Continue reading

A $12.7 million verdict in an injury lawsuit has been voided and a new trial ordered, unless the executor of the plaintiff’s estate agrees to a reduction to $1.45 million.knees

Bigler-Engler v. Berg, Inc. involves a cold-therapy device that was prescribed to and used by a 15-year-old female student athlete after she suffered a sports-related injury and had to undergo knee surgery. The cold therapy device was supposed to help speed her recovery. The device, “Polar Care 500,” is intended to deliver cold therapy to the site of the surgery, similar to what might be accomplished with an ice pack or a bag of frozen vegetables. It operates continuously for 11 hours, until the ice has to be refilled. The girl’s parents were told it would decrease her risk of infection. But the plaintiffs alleged the doctor, his employer, and the manufacturer failed to disclose the risks of using this device, even though they were aware of those risks. The medical group and the doctor both benefited from the sales and rentals of these devices, but they did not disclose that fact to the plaintiff or her parents. (It was also later revealed the doctor was a shareholder in his employer’s medical group, and he was friendly with the cold-therapy device manufacturer executives, who took him on golf outings, dinners, and other events.)

Although the surgery was initially successful, her use of the cold-therapy device reportedly resulted in severe pain and ultimately resulted in dead tissue around her knee that required immediate and specialized surgery. After that, she needed nine additional surgeries to clean and close the wounds. These procedures were extremely painful and left her with permanent, extensive scarring. Scar reduction surgeries followed, for which the plaintiff paid out-of-pocket. She also continued to suffer from weakness, pain, and other functional limitations.

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Not all injuries that occur in a hospital are results of medical malpractice. This is an important distinction because the proof burden imposed on plaintiffs in medical malpractice lawsuits is substantially higher than for those asserting general negligence. That’s why when a dispute arises as to whether a particular case is medical malpractice as opposed to general negligence, defendants will almost always argue that it’s medical malpractice because those claims are held to a higher standard, so they are tougher to prove. old person

While this may seem a pretty straightforward matter to clear up, it can actually be quite nuanced, depending on the circumstances. That’s why it’s important to have an experienced injury attorney working for you. A failure to file a medical malpractice claim properly could result in a summary judgment or dismissal in favor of the defense, and depending on the timeline, it could mean your chance to bring any claim at all has passed.

In the recent case of Gause v. New Hanover Regional Medical Center, the question of whether it was medical malpractice or general negligence was before the North Carolina Court of Appeals. The plaintiff in the case is the daughter of a patient who was injured in a fall during an x-ray exam and later died as a result of those injuries. She filed a claim for damages by asserting ordinary negligence. However, the defendant argued this was actually a medical malpractice case.

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Wrongful death actions allow family members to recover losses in the event a person dies as a result of negligence or criminal wrongdoing by a third party. Beginning in about the 1880s, courts in the U.S. began interpreting statutes to exclude the recovery of damages for the death of unborn children. That slowly began to change in the mid-1940s, with some courts reasoning that recovery was allowed if the injury occurred before birth, but the child was born alive and later died.woman

By 2011, there were 36 states that recognized, as a result of either case law or actual statute, a cause of action in a civil lawsuit for the death of an unborn child. Even so, not many courts have specifically broached the issue of whether a cause of action exists if an unborn child dies before his or her viability outside the womb. Courts in North Carolina and South Carolina (see Johnson v. Ruark Obstetrics, a 1990 North Carolina Supreme Court case, and Crosby v. Glasscock Trucking Co., a 2000 case decided by the South Carolina Supreme Court), along with New York, have specifically decided not to allow recovery for the wrongful death of non-viable fetuses. There are other courts, however, that have specifically recognized the right of plaintiffs to file wrongful death lawsuits for nonviable fetuses. Among those are Alabama, Utah, South Dakota, Oklahoma, and Missouri.

Recently, in Alabama, the state supreme court underscored its position on this point in the recent case of Stinnett v. Kennedy, even as it pertained to the alleged medical malpractice of a doctor.

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A man died at a North Carolina hospital, and his widow later sued the facility and staffers for wrongful death and intentional infliction of emotional distress. But her claim didn’t meet the stringent requirements under the state’s medical malpractice guidelines, spelled out in Rule 9(j).  The plaintiff argued this wasn’t a medical malpractice claim. hospital

It may seem strange at first glance, but not every negligence claim pertaining to a hospital is founded on an assertion of a deviation from the applicable standard of care. It’s an important distinction because the proof burden for medical malpractice cases is much more stringent, and expert witnesses are a must. If your claim is not rooted in medical malpractice, there is no need to spend the extra time and expense building that kind of case.

The case of Norton v. Scotland Memorial Hospital, et al. began with the tragic and unexpected death of a man in Laurinburg in 2012. According to North Carolina Court of Appeals records, the decedent was a married father of two children (who were also named plaintiffs in this action). He was fairly active and in good health, but he went to the hospital one day in July, complaining of abdominal pain. His condition worsened. He was transferred to the intensive care unit, where he was placed on a ventilator and not long afterward died. It’s not clear from the complaint whether the decedent died while at Scotland or after he was transferred to Duke University Health System (another named defendant). Duke’s lawyers contend the decedent’s body was transferred to their facility after his death.

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The North Carolina Court of Appeals recently ruled that a medical malpractice lawsuit stemming from the latent discovery of a surgical sponge was properly dismissed for a failure to file within the statute of limitations period. surgery

Normally in medical malpractice lawsuits, patients have just three years to file a lawsuit from the date of the alleged medical error. However, if the injury could not have been discovered right away, the plaintiff may have one year to file a lawsuit from the date the injury was discovered – or reasonably could have been discovered, assuming that is within four years of the alleged medical malpractice. Even so, cases involving retained surgical sponges – as with all other foreign objects unintentionally left in one’s body after surgery – are unique. In those instances, the lawsuit has to be filed either within:

  • One year of the date on which the object was discovered, or
  • Within 10 years of the date the surgical error was made.

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A wrongful death lawsuit following a plastic surgery death won’t be retried after the Georgia Supreme Court ruled the trial court was right in excluding certain evidence helpful to the plaintiff. The case of Robles v. Yugueros resulted in a verdict favorable to the defense. The plaintiff (the deceased patient’s widowed husband) argued that was largely because the trial court excluded testimony that bolstered his claim. Although the appeals court agreed with him, the state supreme court did

The facts giving rise to this case begin in June 2009 when the defendant performed a series of plastic surgery procedures on the patient, including liposuction, buttock augmentation, and abdominoplasty surgery. Following these procedures, the patient stayed in the hospital overnight and was discharged on the following day. Two days later, she was brought into the emergency room, complaining of severe nausea, abdominal pain, and vomiting. A physician prescribed her anti-nausea medicine and painkillers and instructed her to come back if her symptoms worsened.

Meanwhile, a radiologist examining the patient’s x-ray off-site noted the possibility of a condition known as “free intreperitoneal air” in the patient’s abdomen. This could be normal, but it could also be a sign of something far more serious. He recommended a CT scan and put this information in the patient’s electronic medical record, which was faxed to the hospital. However, by that time, the patient had already been discharged. Three hours later, she was still in extreme pain and, at the urging of the defendant surgeon, returned to the hospital. She was given more pain medication but no CT scan. It wasn’t until two days later that her surgeon ordered an abdominal x-ray that showed evidence of abdominal free air. Three hours later, she underwent surgery, during which the surgeon discovered her stomach had basically been torn open. The tissue was 95 percent dead. She died hours later.

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