Missed Cancer Diagnosis Inspires Meinhart Smith & Manning Scholarship Winner

April LiwanagWhen our law firm asked scholarship applicants to write an essay about how medical malpractice or injury from negligence affected their lives, the response was overwhelming. Among the applications submitted, one stood out. April Liwanag told the story of how physician overconfidence led to a delayed diagnosis when her mother contracted breast cancer.

April, a student at Michigan State University College of Law, was awarded the 2014, Meinhart Smith & Manning Scholarship to continue her studies. The $1,000 scholarship was designed to support those who’ve been directly impacted by a serious injury and who are motivated to help others.

Ms. Liwanag clearly recognizes the dual role injury attorneys have. Getting a full and fair settlement is the primary objective, but by holding those in authority accountable, others might be spared the kind of agony she described.

April’s mother, a nurse, was diagnosed with cancer in her right breast. A mass in the left breast was thought by physicians to be benign and ignored. Multiple surgeries on the right breast eventually culminated in complete removal on that side. Meanwhile, the undiagnosed cancer in the left breast continued unabated and untreated. It wasn’t until April’s mother insisted on a biopsy that this second danger was revealed. Treatment had been delayed two months and resulted in a second mastectomy, repeating all the emotional upheaval, surgery, and recovery.

“A thought I do not like entertaining is what if my mother had not demanded the biopsy on her left breast? Unfortunately, many people do not have the knowledge and assertiveness as my mother had to question her doctors’ recommendations,” April wrote.

Thankfully, her mother survived the ordeal and is currently in remission.

The kind of adversity suffered by April and her family has a real power to reshape lives for the better. We are confident that April will make an excellent injury law attorney, in no small part because of her experience.

April graduated from the University of Hawaii, Cum Laude, with her Bachelor’s in English and Psychology. She also has awards in legal research and writing, and was a finalist for the MSU Law Review Best Brief Competition.

We know from our work here in Kentucky that April’s story isn’t unique, and we are happy to help her achieve her educational goals and to move on from the tragedy.

Posted in Firm News

Causes and Symptoms of Lack of Oxygen at Birth

oxygen-deprivationIf asked to list the most important elements for our bodies to function correctly, oxygen would likely be at the top. It fuels every process in our bodies to some degree. Consequently, lack of oxygen can cause significant and frightening injuries, even if only deprived for a very short time. It is important to know the signs and symptoms of hypoxia, or oxygen loss, so that immediate and long-term steps can be taken. If you or a loved one develops injuries from oxygen deprivation, you may be able to obtain compensation.

Severe Oxygen Deprivation Causes and Symptoms

Severe oxygen deprivation in babies and children usually stems from some injury sustained at birth. Head trauma is usually the most common cause, but other more specific problems may develop, such as Erb’s palsy, and in some cases, cerebral palsy, though most cases of cerebral palsy develop in utero. Some physicians allege a link between oxygen deprivation at birth and autism, but medical science has not conclusively confirmed that.

Mild and moderate oxygen deprivation, while something that requires monitoring, will not usually leave the sufferer with any long-lasting effects, though sometimes there will be a noticeable impairment in short-term memory. Cognitive deficits may appear in a moderate case, but it is not until severe deprivation has occurred that you begin to see symptoms such as seizures and brain injury.

What You Should Do

If you believe your child has suffered injury due to oxygen deprivation at birth, you may be able to file a medical malpractice claim. Medical malpractice in Kentucky is defined as the instance when a physician does not adhere to the prevailing standard of care and their patient suffers injury as a result. The statute of limitations on filing an action is one year from either the date of the injury, or a date where the injury ought to reasonably have been discovered.

In most cases where an injury resulted from oxygen deprivation, especially in the case of babies, a case can be made that the standard of care has been breached. Kentucky has somewhat more lax rules than many other states, in that no special rules are imposed upon expert witnesses in malpractice cases. Nor is there a damage cap on what an injured patient can receive – many states impose limits on either actual or punitive damage amounts that can be recovered in the event of success at trial, but as of this writing, Kentucky has no caps. In this way, the state’s laws are a bit more friendly to plaintiffs than many others – the power of the medical lobby has led to very short statutes of limitations and sharp damage caps in many other states throughout the country.

Contact a Birth Injury Attorney

Birth injury cases can be extremely expensive to mount on your own, especially if you are dealing with the trauma of injury to yourself or your child. The attorneys at Meinhart, Smith & Manning, PLLC can help you. We have a history of excellence in malpractice cases, and will do our best for you. Contact us today.

Posted in Personal Injury

What Duty Does A Hospital Owe?

emergency-vehicle-accidentIn late July, Iveth Yaneth Garcia-Menchaca took her two-month old baby, Issac, to Kosair Children’s Hospital after his father allegedly beat his head into the bathtub. Personnel did their best to save the child, but could not – he was declared brain dead and preparations were made to take him off his feeding tube. However, the mother filed suit against this, stating that only parents could make those medical decisions. A circuit court judge declined to sanction that idea, stating that no parental right survived. Ms. Garcia-Menchaca still did not recognize the ruling, saying she was ‘devastated.’ It brings up an interesting question – can a hospital be found liable for an injury they did not create?

Physical Injuries

In the case of physical trauma to a patient, a hospital cannot be liable for the actual injury, but it or its personnel can absolutely be found liable if they fail to adequately treat the injury, through recklessness or negligence. Such conduct would most likely amount to medical malpractice, which is when a health care professional, knowing the governing standard of care, violates it and causes an injury to a patient.

In this particular case, Kosair’s treatment of Issac was by all accounts exemplary; the fact that their personnel were unable to resuscitate him is not relevant to the question of any alleged negligence. So no liability for physical injury would apply.

Emotional and Mental Injuries

The tort of intentional infliction of emotional distress is a common one, observed in nearly all states. However, there is no indication in Ms. Garcia-Menchaca’s case that Kosair intended to cause her any distress, and instead wanted merely to minimize the time and expense spent on caring for a child who was past saving.

Kentucky does, however, recognize the tort of negligent infliction of emotional distress (NIED). The elements of NIED are fairly simple, and they encompass negligence per se – that is, to have NIED, one must have negligent conduct; a case of negligence must be proven. (Negligence as a matter of law turns on five points that all must be proven by the plaintiff – duty of care, breach of that duty, proximate cause, actual cause, and damages.) If a defendant has conducted themselves negligently, and it caused severe emotional distress to the plaintiff, the elements of NIED have been met.

The idea of emotional distress is much more relevant to this case. Here, the doctor, and by extension, the hospital, owed a duty of care toward Issac, their patient. However, no Kentucky case law supports the theory that a duty of care is owed toward the parents or other family of a patient – it does exist in other states, most notably New York, but as of right now there is no case on point in Kentucky. And if one cannot prove that the defendant had a duty of care toward the plaintiff, the entire case collapses. Ms. Garcia-Menchaca could not argue that Kosair breached any duty of care toward her as the patient’s parent, because as of this writing, no duty of that nature has been established in Kentucky law. If there is no duty of care, there is no negligence as a matter of law, and without negligence, any NIED claim would collapse as well.

Contact An Attorney

If you or a loved one has suffered injury through the negligent or reckless acts of a medical professional, we may be able to help. Call Meinhart, Smith & Manning, PLLC today for a free consultation.

Posted in Personal Injury

Possible Medical Malpractice Reform in Kentucky

medical-malpracticeKentucky is soon to decide what is proving to be an extremely hotly contested election. Mitch McConnell, the Senate Majority Leader, is facing off against Alison Lundergan Grimes, Kentucky’s Secretary of State, for McConnell’s Senate seat, and the campaign has been muckraking, to say the least. It is extremely close, and there are a few hot-button issues that are serving to set voters on one side or the other. The issue of medical malpractice reform has come up again and again in the media, and has the potential to polarize voters.

Current State of Medical Malpractice in Kentucky

As it stands right now, the current climate for medical malpractice in Kentucky is surprisingly patient-friendly. Medical malpractice is defined in Kentucky as a healthcare professional “violating the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury.” This definition is noticeably wider than that of other states – Florida’s, for example, refers only to health care providers, then defines that further, leaving out certain classes like hospice workers or acupuncturists.

Kentucky has also bucked the prevailing trend when it comes to damages. The majority of other states have placed caps on punitive damages in medical malpractice cases, bowing to the cries of the medical lobby that insist enormous verdicts are common and will bankrupt doctors. Kentucky currently has no cap on punitive damages or attorney’s fees in malpractice cases.

Tort Reform

Proponents of tort reform allege multiple reasons for why Kentucky should fall in line with the prevailing trend in medical malpractice rules – most notably, enacting a punitive damage cap. Dave Adkisson, the president of the Kentucky Chamber of Commerce, argues that the current medical liability climate in Kentucky actually drives away employers, because they fear incurring tort liability. He also makes the point that Kentucky already has a shortage of health care providers, and continuing unfettered malpractice liability will make that shortage worse.

Opponents of tort reform cite a distrust of the medical lobby and an unwillingness to tilt the proverbial playing field in a direction they already see as imbalanced. David Hyman, MD, JD, and Charles Silver, JD, co-authored an article published in Chest, a medical journal, that debunks many of the myths that proponents of tort reform in Kentucky propagate. Most notably, the idea that uninjured patients are routinely awarded ‘enormous verdicts’ and that ‘tort reform is the only answer’ is taken to task. The authors use data from Texas to show that after tort reform was adopted in 2003, very little changed in the amount of money plaintiffs were awarded.

There are several proposals before the Kentucky legislature that would tighten regulations, making the field arguably more level. One of the most talked-about is Senate Bill 119, which would create panels of medical experts to review claims. The opinions of the panel would not be binding, but they would create more persuasive evidence that a claim was frivolous that could be used in court. Opponents are unsure whether this would actually cut down on frivolous lawsuits, or if it would simply be another expensive boondoggle – the panels would require upkeep, after all.

An Expert Can Help

If you or a loved one have been harmed by medical malpractice, it is important to know what you can and cannot do, and due to the expense of malpractice legislation it is often best to have an expert attorney on your side. Call the attorneys at Meinhart, Smith & Manning, PLLC today for a free consultation.

Posted in Medical Malpractice

Advanced Maternal Age of a Mother: A Risk Factor?

maternal-ageIn this day and age, women are having children a bit later in life. While this is obviously a choice individual to each woman, more science is coming to light which indicates that having children slightly later on in life may carry risks with it. It is important to be aware of the risk factors so you can make an informed decision.

Possible Risks of Childbirth at an Older Age

There is a lot of fearmongering, but it is entirely possible, and even probable, that a baby born to a mother over the age of 35 will be perfectly healthy. That said, the risks are real. The most common birth defect in babies born to mothers over 35 is Down Syndrome, which is a genetic disorder caused by abnormal cell division. It can lead to intellectual impairment of varying degrees, as well as possible physical problems, like breathing issues or even cardiovascular problems.

Another possible risk is for congenital heart defects. As a woman ages, her eggs are more likely to divide and multiply incorrectly, which can cause problems of all kinds, notably breathing issues and anemia.

Most of the risks associated with a mother over 35 are due to abnormal division of the egg cells, also called nondisjunction. One of the major effects of nondisjunction is that sometimes chromosomes either do not match up or there is a chromosome missing in the resulting fetus – hence, the prevalence of chromosomal birth defects like Down Syndrome and Fragile X syndrome in slightly older mothers.

There are also certain risks to a mother who is giving birth for the first time over age 35. Women over 35 have much higher risks of gestational diabetes, which can lead to the baby growing too large for the birth canal and causing injuries to mother and baby. Also, cesarean section births are much more common in older women, and a botched cesarean section can cause major complications.

There is one advantage that older mothers apparently have over younger mothers in terms of birth defect risks. According to a study run by Dr. Katherine Goetzinger at Washington University in St. Louis, mothers over 35 have a 40% smaller chance of having a child with major congenital malformations such as kidney and abdominal wall defects. The research is still being vetted, but it helps to assuage some of the worries older women may have about becoming pregnant.

How To Safeguard Your Health

There are a number of things that older mothers can do to ensure they have smaller risk of fetal birth defects and also minimize the risk to themselves. Some things are common sense – for example, avoiding alcohol, tobacco and drugs during pregnancy is something every woman should do. However, there are suggestions aimed specifically at older mothers. It is important to get enough folic acid in your diet – folic acid helps reduce the risk of neural tube defects in babies, and there are specific amounts which are prescribed for pregnant women to have. Another directive specifically for older mothers is to be extra careful about how much weight you gain and when – gaining too much right away can tax the body significantly.

Contact A Birth Injury Attorney Today

If something does happen to your baby, it could be the fault of your doctor or hospital – poor information or mishandling delivery sadly happens. If you have questions, we may be able to help. Contact the Louisville firm of Meinhart, Smith & Manning, PLLC today.

 

Photo Credit: josemanuelerre cc

Posted in Medical Malpractice

Cephalohematoma: Signs & Symptoms

When a child is born with problems, the first reaction of most parents is, quite understandably, fear. Confusion can reign supreme, with concern over their child’s quality of life eclipsing any and all other matters. However, if your baby has been injured, rather than born with a disability, seeking redress may help your family financially and emotionally. One of the most common birth injuries which can provoke later complications is called a cephalohematoma, or swelling at the top and back of the head.

What Is Cephalohematoma?

A cephalohematoma is a swelling, usually from a minor internal hemorrhage, between the skull and the membrane covering it. Blood collects there due to birth-related trauma, most often in forceps or vacuum-aided deliveries. Long labor may also play a role, especially if the baby is trapped in an awkward position while exiting the birth canal. There is another similar injury called a Caput succedaneum, but a cephalohematoma occurs below the membrane, while a Caput succedaneum occurs above the skull’s covering membrane, between it and the scalp. A Caput succedaneum will also disappear more quickly and easily than a cephalohematoma; the former may take days, while the latter takes weeks.

An important thing to keep in mind is that both of these injuries happen above the bones of the skull, most often the parietal bone. This does not mean there has been any injury to the child’s brain though.

Distinguishing A Cephalohematoma

Cephalohematomas occur in between 0.2% – 2.5% of live births, but the majority of them will not cause lasting injury. Most of them will resolve themselves without any overt interference, though doctors commonly will perform an ultrasound or x-ray to rule out things like skull fracture or subdural hematoma (a serious head injury which causes blood to pool on the surface of the brain itself).

Some of them are severe, however. A severe cephalohematoma can result from a skull fracture or other mishandling of delivery, especially if forceps are involved. The most common injury that can occur from severe cephalohematoma is jaundice – sometimes a cephalohematoma is so large that when the blood in it begins to break down, it raises the baby’s bilirubin levels, thus causing the yellow skin and eye color. Anemia is also a possibility, if the cephalohematoma is so large that a significant part of the blood supply is diverted. However, despite possible risks, cephalohematomas are almost never drained, due to the risk of infection. Studies in Taiwan showed that infection led to minor symptoms like redness and fever, but also for bacteria like E.coli to infiltrate the baby’s systems.

Medical Malpractice Claims for Cephalohematomas

If your child is one of the few to sustain a severe injury due to a cephalohematoma, you will likely be able to bring a birth injury claim. Medical malpractice claims in Kentucky have a one-year statute of limitations on them, meaning that the claim must be filed within one year of the injury, or within one year of the injury being discovered (or when it ought reasonably to have been discovered). Unlike many other states, Kentucky also has no damage caps in medical malpractice suits, which may influence a medical professional or hospital toward settlement – the possibility of large verdicts does exist.

If your child has been injured by a doctor’s negligence, we may be able to assist. The attorneys at Meinhart, Smith & Manning, PLLC have a history of excellence, and we will fight for you. Contact us today.

Posted in Medical Malpractice

Meinhart Helps Win $7.4 Million Medical Malpractice Verdict

Chris Meinhart of Meinhart Smith & Manning recently helped win a $7.44 million jury verdict for the family of a young mother who died after doctors failed to diagnose a severe urinary tract condition.

Twenty-seven-year-old Jessica Butler was 19 weeks pregnant when she went to the emergency room at Baptist Hospital East, complaining of abdominal pain. Nurses consulted with her ob-gyn and sent her home with medication for a urinary tract infection. She was never examined by a doctor.

When Jessica’s condition worsened the next day, she returned to the hospital and was diagnosed with urosepsis – a serious condition in which a urinary tract infection spreads to the blood. During emergency surgery, the baby died and Jessica suffered a brain injury. She died four days later.

Jessica’s family and her estate filed a lawsuit against her ob-gyn, Dr. James Segal, and the hospital. The lawsuit claimed that because Jessica had previously had a kidney infection complication, the doctor should have examined her in person when she first went to the hospital.

During a nine-day trial, expert witnesses testified that the doctor should have seen Jessica and admitted her to the hospital. If that had happened, antibiotics would have been administered that would have saved her life and the baby’s life.

The jury found that both the hospital and Dr. Segal were at fault and assessed that fault as 60 percent to the hospital and 40 percent to Dr. Segal. Jessica’s estate was awarded $1.44 million, her husband was awarded $3 million for the loss of his wife and unborn daughter, and the couple’s other child was awarded $3 million for the loss of his mother.

The hospital settled the claims against it before the trial. The damages apportioned to the doctor totaled $2,976,000.

Posted in Firm News

Cancer Clinic Settles Chemotherapy Duration Claim for $3.7 Million

An Elizabethtown cancer clinic accused of extending patients’ chemotherapy sessions so it could make more money has agreed to pay a $3.7 million settlement to resolve the claims against it.

Elizabethtown Hematology Oncology PLC and its owners were accused of extending the length of chemotherapy infusion treatments and improperly billing for office visits for those treatments so they could obtain larger reimbursements from government insurance programs, including Medicare, Medicaid and the military’s TRICARE program.

The owners, Dr. Rafik Ur Raman and Dr. Yusef K. Deshmukh, are also under investigation by the Kentucky Medical Board.

The settlement highlights how easily unsuspecting patients can be subjected to unnecessary procedures by doctors who want to collect more money.

Former Co-Worker Exposed Treatment and Billing Practices

The clinic’s billing practices came to light in a whistleblower lawsuit filed by a former doctor at the clinic, Dr. Ijaz Mahmood.

Mahmood claimed that the clinic gave patients the proper dose of chemotherapy, but diluted it so it took hours longer to administer.  This allowed the clinic to make more money from government insurers such as Medicare, whose reimbursement is based partially on the amount of time a procedure takes. The lawsuit alleged that:

  • The clinic had written guidelines that extended the duration of chemotherapy to three times beyond what was medically accepted as necessary, but sometimes stretched the duration to six to eight times longer than was needed.
  • Patients sometimes spent hours hooked up to a chemotherapy IV when they could have received their doses with a simple injection.

The clinic’s attorney defended the actions of the clinic and its owners, saying that they were trying to minimize the drug’s harmful effects, not collect more money from insurers.  He noted that the doctors are still practicing medicine and billing the government programs.

The settlement did not involve any admission of guilt on the clinic’s part, nor did the government concede that its claims were unfounded.

Settlement Terms Include Increased Monitoring

The federal and state government joined the lawsuit under the federal whistleblower law.  Mahmood will receive $243,412 of the settlement amount, and the state of Kentucky will receive $405,227.

In addition to the monetary settlement, the clinic and Dr. Deshmukh must participate in a three-year program for increased monitoring and accountability of the clinic’s practices.  The clinic and doctors will still be allowed to bill procedures to the government insurance plans.

 

Posted in Medical Malpractice

Hospitals Must Invest in Safe Injection Practices

unsafe-injectionsIn recent months, a number of cases of medical malpractice around the country have been linked to unsafe injection practices. In 2009, there was a hepatitis A outbreak in Nevada that was linked to the inappropriate use of drug vials, which led to widespread contamination and infections. Often, medical personnel may be prompted to use cut corners when they administer injections, and this can place patients at risk.

The Centers for Disease Control and Prevention has launched the One and Only campaign, which is aimed at increasing awareness among both nurses as well as patients about safe injection practices. According to the CDC, since 1999, more than 125,000 persons have been at risk of exposure to HIV, hepatitis, B and hepatitis C, all due to unsafe injection practices.

The most basic safe injection practice is to use just one syringe and one needle per patient. In a recent survey, as many as 1%, of medical personnel reported that they reused single-dose vials on multiple patients. These are extremely dangerous practices.

Fortunately, since the AIDS scare, many patients are more aware about safe injection practices. It is very important that patients speak up when they see medical personnel adopting unsafe practices. As a patient, you must question whether the syringe has been used on anyone else, or whether the vial that has been opened is a single-use vial.

Hospitals must invest in awareness and education campaigns, and encourage personnel to be more careful with injection practices. The Centers for Disease Control and Prevention’s One and Only campaign is an excellent place to start. Some experts believe that unsafe injection practices may be more widespread in small hospitals and clinics, because there are limited numbers of staff members, and lower opportunities for sufficient oversight of nurses. Patients who check in to a smaller facility may need to be more alert.

Photo Credit: faungg’s photo cc

Posted in Medical Malpractice

Child Safety Seats and Passenger Safety

child-safety-seatKentucky Transportation Cabinet advises on child passenger safety by giving National Highway Traffic Safety Administration statistics on the injuries that may occur when a child is not safely belted or seated in a car.

Child Safety Seats Not Installed Properly

According to the statistics, over 90 % of child safety seats in the United States are installed incorrectly. When used properly, child safety seats are 71 % effective in reducing infant fatalities, 67 % effective in reducing the need for hospitalization, and 54 % effective in reducing fatalities for children ages 1 to 4.

Kentucky has a booster seat law.  Senate Bill 120 requires children younger than 7 and between 40 and 50 inches tall be secured in a booster seat.  They are an extra safety precaution on top of children wearing seatbelts.  Because of the danger of airbags in front seats, children generally sit in the rear seats.  If not seated correctly, a child can die if a frontal collision causes trunk cargo to collapse the rear seatback forward.  In Kentucky, law enforcement officers issue citations with a $30 fine with no court costs when children do not use booster seats. Violators have the option to buy a booster seat rather than paying the fine.  Boosters lift the child up off the seat to improve the fit of the seatbelt.

Automakers need to investigate making seatbelts fit and perform well in the event of an accident involving children.  The consequences of poor fit may lead to the manufacturer and retailers getting sued for products liability.  Uncomfortable belts may not be worn by a fussy child.  For strict products liability, the child is a foreseeable plaintiff of a car manufacturer or retailer though the child may not be the car owner or purchaser.

Some parents may place a belt behind a child’s back if the shoulder belt cuts across a child’s neck.  Safety experts suggest shoulder belts should not be placed behind the back.  The lap portion of the seatbelt should fit low on the hips or high on the thighs and the shoulder portion of the belt should be across the collarbone.  An improper fit of the belt can cause the lap belt to ride up over the stomach and the shoulder belt to cut across the neck, possibly exposing the child to abdominal or neck injury.  Seatbelt effectiveness depends on the belt staying on the hard bones of the body, such as hip and shoulder bones.  This transfers crash forces to the bones to avoid vulnerable body parts such as the head and abdomen.  A belt that does not work correctly could result in a child suffering traumatic head injuries, organ damage, or death.

Other Hazards to Child in Cars

Vehicles can pose hazards to kids even when not on the road.  For instance, automatic windows can strangle a child.  When shopping for a car, see if window switches are designed like garage door openers to make it accidentally hard to close the window when there is an object in the way.

Protecting a child in a car is up to parents, drivers, and automakers.  When a child dies in an accident, each party who plays a role in keeping the child safe may be accountable for any child injuries.  To learn more about what to you or a loved one can recover in a child passenger safety claim, contact our attorneys for a free consultation of your rights.

Photo Credit: Regal+Lagercc

Posted in Motor Vehicle Accidents

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Meinhart, Smith, & Manning, PLLC
222 E. Witherspoon St Suite 401
Louisville, Kentucky 40202
Phone: 502-589-2700
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