March 1, 2013

Car Accident injuries are mistreated

Defendants New York City Health and Hospitals Corporation (HHC) and Dr. PN (collectively defendants) move for summary judgment, dismissing plaintiff's complaint insofar as asserted against them.

In this medical malpractice action, plaintiff alleges that defendants deviated from accepted standards of medical care while he was being treated in the hospital for severe injuries he sustained in an automobile accident. The Manhattan plaintiff alleges, among other things, that defends its improperly and negligently positioned and restrained his wrists, failed to monitor the effects of the restraints, negligently failed to perform physical therapy on him, and negligently caused his arms to become paralyzed and non-functional.

On December 29, 2004, plaintiff, then age 62, was driving his vehicle when it struck trees, a fence and landed in a courtyard, ejecting him from the driver's side window. Plaintiff sustained various injuries, including a hemorrhage of the head, a crushed left leg from his foot to hip, and multiple lacerations and abrasions. EMS brought plaintiff to Kings County Hospital emergency room, where plaintiff was described as alert, combative, and intoxicated. Plaintiff was intubated and x-rays and abdominal/pelvic ct-scans were performed. Plaintiff sustained fractures of the pelvis, left femur, and left tibia/fibula, and had internal bleeding.

According to Dr. PN, plaintiff required significant treatment to save his life. He was unstable in the emergency room and Dr. PN did not know if he was going to survive. A CAT scan was taken to look at plaintiff's head injury and to identify his severe pelvic fracture, but he become progressively more unstable and hemorrhaging. He underwent multiple massive transfusions, and was then transferred to the intensive care unit, where he was still unstable. Dr. PN testified that over the next 24 to 48 hours, she and other medical personnel were able to stabilize plaintiff, but he remained in extremely critical condition.

Dr. PN made the first order for wrist restraints on December 30, 2004, at 5:30 A.M. Orders for wrist restraints were written daily, from December 30, 2004 until February 6, 2005, while plaintiff was still in the intensive care unit. With respect to the need to restrain plaintiff in the critical care unit, Dr. PN testified that it was to protect himself as plaintiff was very dependent on a ventilator, required an endotracheal tube for his ventilator and multiple IV lines for his support, that he repeatedly reached and tried to pull out his lines.

Defendants also state that the flow sheets document that the nursing staff at the hospital checked wrist restraints for skin integrity, circulation and range of motion on regular intervals while plaintiff was restrained.

On February 11, 2005, physical therapy in Staten Island documented 15 to 20 degree extension/flexion in the left elbow and 15 to 30 degree flexion/extension in the right elbow. On February 14, 2005, plaintiff was evaluated for physical therapy. Bedside therapy was recommended three to four times per week to prevent further contractures and muscle weakness bilaterally in the upper and lower extremities and began at that time.

On April 5, 2005, one week prior to discharge, therapy documented a 15 degree lag in extension/20 degrees flexion of the left elbow and a 10 degree lag in extension/forty degree flexion in the right elbow. Despite two months of intensive therapy, after the wrist restraints were removed, plaintiff's upper extremity contractures persisted.

On July 12, 2005, bilateral elbow x-rays performed at the Kings County Hospital outpatient clinic revealed a diagnosis of heterotopic ossification.

On August 19, 2005, surgery for the right elbow contracture release and excision of heterotopic calcification was performed at Kings County Hospital. On October 28, 2005, surgery for left elbow contracture release and excision of heterotopic calcification was performed.

Plaintiff commenced the instant action for medical malpractice and lack of informed consent in July, 2006.

In support of their motion, defendants argue that they are entitled to summary judgment dismissing the complaint based upon the affidavits of their expert physicians, which demonstrate that there was no departure from accepted standards of practice and that defendants did not cause plaintiff's injuries.

A doctor (Dr. A) witness for the defendant testified that wrist restraints are routinely used for intensive unit patients who are often at increased risk of injuring themselves by pulling out therapies such as IV lines, endotracheal tubes, central lines and chest tubes. He also stated that wrist restraints allow for some range of motion and enable a degree of flexion and extension of the wrists and elbows and pronation and supination of the arms, as evidenced by the fact that on January 30, 2005 plaintiff was seen holding the dislodged chest tube tubing with his restrained left hand. The doctor said that there was no evidence that plaintiff's wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff's management.

Like Dr. A, Dr. B testified that there is sufficient documentation that the nursing staff continuously monitored the wrist restraints according to hospital protocol; that there was no evidence that plaintiff's wrist restraints ever caused circulatory impairment, were improperly positioned, or that plaintiff developed any pressure sores in the wrist area; and that the wrists restraints were a necessary and vital part of plaintiff's management.

Dr. B further stated that despite intense physical therapy received after the removal of wrist restraints, the elbow contractures persisted.

Dr. B explained as well that heterotopic ossification is a medical condition which involves the gradual formation of bone in the soft tissue around major joints; that the normal soft tissue of the joint turns into bone; that it is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury, or central nervous system injury; that there is no medical evidence which suggests that heterotopic ossification has any relation to immobilization or restraint; and that physical therapy is not usually an effective treatment of heterotopic ossification and was not effective on plaintiff.

Further, Dr. B noted that plaintiff was diagnosed with a C1-C2 subluxation at the time of admission but no surgery could be performed because of plaintiff's general medical condition, and that stabilization surgery was performed on March 28, 2005. He stated that the relationship between spinal injury and heterotopic ossification is well established, and that as a result of plaintiff's spinal cord injury, he was diagnosed with spastic quadraparesis in the hospital ambulatory care clinic on June 16, 2006.

As such, Dr. B opined, with a reasonable degree of medical certainty, that plaintiff developed heterotopic ossification (HO) as a result of musculoskeletal trauma and spinal cord injury sustained during the automobile accident; that heterotopic ossification was not and could not be caused by wrists restraints.

On the other hand, the expert presented by plaintiff opined that it is widely accepted that gentle and active passive range of motion substantially limits the risk of HO and that the failure to position and move plaintiff's arms for several hours during the day was a substantial factor in the development of his HO, to the degree and nature that it could cause such severe upper extremity dysfunction.

The expert also stated that even with HO, plaintiff's severe bilateral elbow contractures were avoidable had his arms not been improperly restrained. He asserts that contractures occur when tendons/muscles harden and become `fixed' or less elastic as a result of disuse; that in plaintiff's case, the contractures were a separate and distinct injury from HO; and that the failure to reposition plaintiff's arms for several hours a day on the days he was restrained was a substantial factor in causing his contractures and loss of range of motion in both arms.
According to the Court, the requisite elements of proof in a medical malpractice action are (1) a deviation or departure from accepted standards of medical practice, and (2) evidence that such a departure was a proximate cause of the plaintiffs injury. On a motion for summary judgment in a medical malpractice action, a defendant doctor has the burden of establishing the absence of any departure from good and accepted medical practice, or that the plaintiff was not injured thereby. Defendant must make this showing through medical records and competent expert affidavits. Once the defendant has made a prima facie showing, the burden shifts to the plaintiff to rise a triable issue of fact.

In this case, the Court held that defendants have made a prima facie showing entitling them to summary judgment with respect to their claim that the wrist restraints used on plaintiff did not cause plaintiff to contract heterotopic ossification. In this regard, both of defendants' experts testified, and the record reveals, that the use of the wrist restraints on plaintiff was necessary because he was frequently described as restless and was considered at risk for self-injury. In addition, noting that heterotopic ossification is a rare condition which is most frequently seen with musculoskeletal trauma, spinal cord injury or central nervous system injury; that plaintiff had sustained spinal cord injury as a result of his accident; and that the relationship between spinal cord injury and heterotopic ossification was well established, Dr. B opined that plaintiff developed heterotopic ossification as a result of musculosekletal trauma and spinal cord injury sustained during the automobile accident, and that it was not and could not be caused by wrist restraints.

Defendants, however, have failed to make a prima facie showing that the wrist restraints did not cause plaintiff's elbow contractures. In this regard, Dr. B opined that plaintiff's elbow contractures were not caused by stiffness/tightness associated with atrophy from lack of use, asserting that there was no evidence that the restraints caused circularory impairment, were improperly positioned, or that plaintiff developed pressure sores in the upper extremities.
Thus, defendants' own papers raise an issue of fact as to whether the proper protocols with respect to wrist restraints were consistently followed, and if not, whether the failure to do so was a proximate cause of plaintiff's contractures.

In any event, plaintiff has raised a question of fact as to whether his heterotopic ossification and contractures resulted from defendants' negligent use of wrist restraints on him, which precludes the court from granting defendants' motion for summary judgment. With respect to plaintiff's heterotopic ossification, plaintiff's expert asserted that during some of the days plaintiff was restrained, he was not properly monitored according to hospital protocol. Plaintiff's expert also opined that they were avoidable had plaintiff's arms not been improperly restrained.

As such, defendants' argument that plaintiff did not rebut their showing that there was sufficient documentation that plaintiff was continuously monitored, and that there is no evidence which suggests that heterotopic ossification has any relation to immobilization or restraint, is without merit.
Further, while defendants argue that plaintiff's expert did not rebut their expert's contention that heterotopic ossification is a rare condition and most frequently seen with, among other things, spinal cord injury, plaintiff's expert raised an issue of fact as to whether the failure to properly monitor the wrist restraints caused plaintiff's elbow contractures and heterotopic ossification. In addition, contrary to defendants' claims, plaintiff's expert specified how the restraint protocol was not followed.
That branch of defendants' motion for summary judgment as to plaintiff's cause of action for lack of informed consent was granted by the Court. Defendants have made a prima facie showing, through their expert affirmations, that a reasonably prudent person would have undergone all of the procedures plaintiff underwent if informed of the risks and benefits of the procedures. Plaintiff has failed to address this cause of action in his opposition.
Finally, in light of the factual issues raised, the court declined to search the record and grant plaintiff partial summary judgment.

In sum, that branch of defendants' motion for summary judgment as to plaintiff's cause of action for lack of informed consent is granted, and the remainder of defendants' motion is denied.

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December 16, 2012

Medical Malpractice Insurance is made Available

The issue before the court has to do with the Medical Malpractice Reform Act of 1986 that requires the Medical Malpractice Insurance Association to refund the stabilization reserve fund charges that had been collected for excess policies and applied by statute to offset deficits. The plaintiff in the case is challenging the constitutionality of the implementation and enforcement of certain provisions of this act.

Background Information

The Medical Malpractice Insurance Association or MMIA is a non-profit unincorporated association that is a legal entity separate from its members. The MMIA in NYC was created by chapter 109 section 17 of the laws created in 1975. The association was created after the insurer that covered the majority of surgeons and physicians for professional liability stated that they would no longer underwrite this type of insurance policy in the state of New York. The MMIA’s purpose was to provide a market for medical malpractice insurance that was not otherwise readily available.

The MMIA is required to provide medical malpractice insurance to any physician applicant. The primary policy limits provided to the physicians have limits of $1,000,000 per claim and $3,000,000 for all claims in any single year. In 1985 a mandate was created by the legislature that required the primary policy limits to provide excess coverage of at least $1,000,000 per claim and a $3,000,000 aggregate for any policy year to the physicians they insured. In addition, MMIA was required to provide excess coverage to all applicants irrespective of the placement of their medical malpractice coverage.

From the beginning the MMIA has been required to maintain a stabilization reserve fund for the purpose of offsetting its deficits. When this particular action began the MMIA in Manhattan had over $10,000,000 in stabilization reserve fund charges. There was also an unpaid balance for stabilization reserve fund charges that were earned on excess policies that were in effect between July first of 1985 through the 30th of June, 1986.

In July of 1986 the Medical Malpractice Reform Act amended a section of the Insurance Law. The amendment requires the MMIA to refund any excess stabilization reserve fund charges to the hospitals that have paid the premium and surcharge on behalf of their doctors between July first 1985 and June 30th, 1986.

Case Issues and Discussion

MMIA has moved for an order to enjoin the implementation of the provision of the legislations that requires the association to refund stabilization refund charges. The defendants cross moved to dismiss the complaint of MMIA for failure to state a cause of action. The cross motion by the defendant was denied by the motion court and the court enjoined the state from requiring that the MMIA

The main issue at hand is whether or not the new legislation can be implemented retroactively.
Case Decision

The court has reviewed the facts of the case and there is no argument about the fact that the MMIA currently has a deficit of over $80 million. Allowing this law to be retroactively implemented would be detrimental to the association. Therefor the court has ruled in favor of the plaintiff.

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July 23, 2012

New Legislation in Florida Protects Doctors

New legislation has been passed in the state of Florida to restrict the ability of patients to sue medical professionals who try to provide treatment to them explains a report.

Many republican lawmakers are trying to justify the cost of the state’s Medicaid program. They are trying to reduce costs to the hospitals by reducing the chances of lawsuit losses for hospitals in the state. This is designed as a way of encouraging cooperation between doctors, hospitals and insurance companies.

The House of Representatives recently passed new legislation that would restrict using expert witnesses in lawsuit cases explains a source. The bill first said that hospitals would not be held liable for negligence of contracted providers unless the hospital exercises complete control.

Doctors and lawyers in Manhattan and Long island have been trying to find a way to reform and improve the healthcare system in the state. This new legislation is said to be a step in the right direction to make it a much friendlier place to practice medicine.

Many Lawyers have claimed that Florida needs to scale back on malpractice lawsuits so that more doctors will remain working in the state rather than traveling somewhere else. The caps put on malpractice cases in 2003 has helped to improve the situation, and this new bill should make things even better.

Many doctors and hospitals are against Medicare because it reduces their profits. By offering to limit the malpractice cases they can encounter, it is designed to make them work together as more of a team.

When the final Medicaid reform bill is unveiled to the public it is expected that there will also be new caps placed on medical malpractice cases. The senate's Medicaid plan will limit the wrongful death cases to $250,000.

Doctors and hospitals treating patients through the Medicaid system would have the liability capped at $300,000. The only reason this cap could be passed would be if the provider has acted maliciously or in bad faith.

After the reforms of 2003 the number of medical malpractice claims has decreased significantly. This has helped to attract more doctors to work in the state.

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May 31, 2012

Attorney Gets $10 Million for Client in Philadelphia

A Philadelphia attorney won a big case for a client in a case of misdiagnosis.

A Scranton lawyer was able to obtain a $10 million award for a 60-year-old man who as misdiagnosed with a fatal neuromuscular disease. The doctor in question was a noticed expert on ALS.

The attorney in this case, who has a brother in the U.S. Senate, represented the 60-year-old man in a two-week trial at Philadelphia Common Pleas Court. According to the suit, the client will have to spend the rest of his life in a wheelchair, due to the misdiagnosis.

The decision of the jury found the doctor was negligent when he diagnosed the client in 2003 with ALS, known commonly as Lou Gehrig’s disease. The damages the jury assessed came out to more than $10.1 million.

During the trial, the attorney argued that the doctor, who was medical direction of the ALS Association Center at the University of Pennsylvania, failed to perform necessary tests and consult with radiologists before making his diagnosis of ALS for the client. Hospitals in Long Island and Manhattan have noted this.

Due to the misdiagnosis, the doctor told the client, his patient, that the man had only 18 months to three years to live. It was more than three years before the client received the correct diagnosis – a spinal cord compression. He had already made plans for his funeral.
According to the attorney, if his client had been properly diagnosed back in 2003 by the doctor, he could have been treated with surgery. The passage of time, however, has rendered his condition inoperable. The 60-year-old man, a New Jersey resident, now has permanent leg paralysis and must use a wheelchair to get around.

As for the doctor, it is not known what actions, if any, the hospital will be taking after the verdict against him. No further information on any of the trial’s participants is available at the moment

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January 15, 2012

Woman committed to pysch ward by mistake

A man shared information about a civil trial of a woman who says that she was wrongfully committed to a psychiatric institution after she vented angrily about how she felt about her church’s pastor.

The woman hired a medical malpractice lawsuit and sued the psychiatric hospital along with other staff members. The woman has claimed that the psychiatrists did not follow the acceptable standards of psychiatric care as she was committed to their institution without her consent and was held there for ten days.

However, the hospital’s attorney is defending the medical malpractice because their defense is that they had every reason to believe that the woman was a danger to society at the time. A source reported, the woman had been volunteering at the church as a treasurer and after a while, she turned against the pastor of the church. The woman asked if she could speak to a psychiatrist because she felt that the pastor was not making it easy for her to do her work. According to the report, the woman talked about killing the pastor and that is what got her taken away to the psychiatric ward.

Although, she used those words, the woman claimed that she would not have carried out the threat. The woman testified in court that she was not a threat to society, but the defendant’s lawyer said that the woman would come to the church even after her working hours to harass the pastor. Hospitals in Manhattan and Long Island face these situations all the time.

A souce indicated that the pastor felt as if his life was in danger and may have had reason to feel threatened.

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September 23, 2011

Is Medical Malpractice Immunity in Exchange for Treating Medicaid Patients on the Horizon?

If medical malpractice immunity is instituted in return for treating Medicaid patients, the system would become a shambles, indicated a New York Medical Malpractice Lawyer.
Perhaps this is an idea that may find favor with the general public; a way to treat those who don’t have much in the way of proper medical care. On the surface, this sounds very humanitarian. Deep in the heart of this idea though lies a very real threat. This is also true of things like misdiagnosis which can be a suable offense.
By providing doctors with immunity to lawsuits for treating Medicaid patients, what is to say that they will get the same standard of care someone with health insurance will get? What is to say that the care given to Medicaid patients may not on occasion be substandard and a mere nod to the rules of providing care for immunity from being sued, asked the New York City Medical Malpractice Lawyer
Sovereign immunity is a slap in the face to medical malpractice patients, whether they have health insurance or not or whether they are on Medicare or Medicaid. Should a State give immunity to doctors, the State then becomes the doctor who was negligent.
This means if a patient sues, taxpayers would then be footing the bill for med mal claims, while the doctor gets off scott free. Where is the justice in that? Where is the compassion for victims of a medical professional’s negligence? The very idea is an affront to victims, indicated the Lawyer.
Medical professionals in Long island and Manhattan need to be held accountable for their errors and if they are not held up to scrutiny, then the old saying of “Absolute power corrupts absolutely,” would certainly hold true.

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June 13, 2011

Doctors are worried over possible increased costs associated with Medical Malpractice Suits reported a New York Medical Malpractice Lawyer

Some physicians in the Nevada area are fretting the possibility of the law limiting pay outs for damages on medical malpractice suits, will soon be overturned based on a pending case where a woman wrongfully lost her life and left her family behind, said a N York Medical Malpractice Lawyer.

The woman, who died in 2007, was allegedly incorrectly diagnosed by a doctor and died shortly after. She left behind six children and a husband. The doctors involved in the case admitted no fault. These kinds of cases are often reported in Manhattan and Westchester.

The Nevada Supreme Court is in discussions about the current law regarding damages for pain and suffering, which states, “In an action for injury or death against a provider of health care based upon professional negligence, the injured plaintiff may recover non-economic damages, but the amount of non-economic damages awarded in such an action must not exceed $350,000.”

A NY Medical Malpractice Lawyer explained that the family’s counsel feels the $350,000 should be awarded to each family member involved in the case, which would bring these damages to $5.6 million. This far exceeds the current $350,000 limit.

In response to this case and it’s possibility for overturning the law, several Medical Associations and Societies have petitioned the Supreme Court asking that the law stay the same.

Doctors fear the changing of the law will limit their ability to practice medicine at all due to the increase costs.

“If I have to double my malpractice insurance because of this lawsuit, I'll probably have to leave town. A lot of doctors will be hurt,” one doctor said.


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