A Supreme Court judge has upheld the dismissal of a Kentucky man’s medical malpractice case because he didn’t have the testimony of an expert witness and therefore failed to prove his claim.

Horace Collier sued Caritas Medical Center and Dr. Robert Blankenship alleging that they were negligent in treating him for the abdominal pain he was experiencing in 2004.  His lawsuit claimed that he was ignored for a period of several hours before having to undergo an appendectomy.
Unfortunately for Collier, he chose not to call an expert witness to testify on his behalf, which left it as his word against the medical professionals.  He didn’t stand a chance.
The truth is, in an effort to prevent having to pay out thousands or even millions of dollars to a plaintiff for a medical malpractice claim, physicians and their defense attorneys will employ whatever means necessary for a victory.  This almost always includes a medical expert, or even a team of them, who will testify that the medical error was not the fault of the doctor or hospital.  If the plaintiff doesn’t do the same, chances are very slim that their claims will hold up in court.

In fact in many states, if you do not have an expert witness, you cannot even expect to get to trial, because the peculiar nature of medical malpractice cases REQUIRES that you hire an expert to explain your case.

A surgical malpractice lawsuit has been filed against the doctor who performed brain surgery on a 16 year old Russian boy in 2006 that resulted in the boy’s death.  The family claims that the surgeon, who performed the risky procedure free of charge did so for his own publicity, disregarding the safety of his patient.

Dr. Paul Francel of Oklahoma City offered to operate on young David Kurbanov after Russian physicians discovered a tumor on the boy’s brain stem.  The tumor was allegedly causing Kurbanov to have difficulty with balance, appetite and swallowing.

The family alleges that due to the doctor Francel’s desire to receive media coverage and self promotion, he acted below the medical standard of care, and that through his medical negligence the boy slipped into a coma following the surgery and was declared brain dead shortly thereafter.  Less than a year later, he died at the tender age of 16.

As tragic as this story is, perhaps even more alarming is the fact that this isn’t the first claim of medical malpractice that has been brought against Dr. Francel.  In fact, there are currently 12 cases pending, since June 2007.  Not surprisingly, he has agreed to discontinue practicing medicine while the investigations into his past are conducted.

Surgical malpractice is possibly one of the most devastating types of medical negligence, because of the delicate and risky nature of the practice.  This story is just one of many that occur every day in this country, leaving behind shattered lives and broken families.  If you or someone you love has been a victim of any type of surgical error, you should speak with an experienced medical attorney right away.

The family of 7-year-old Roberto Morales, Jr. reached a cerebral palsy settlement for $6.5 million this week. Diagnosed with cerebral palsy after his birth in 2001, Morales now suffers from limited mobility and requires continued health care. The settlement will help with his ongoing health care costs.

Inadequate Oxygen to the Brain
Roberto was delivered at Provena Mercy Medical Center. Attorneys working on his behalf argued that the obstetrician and delivery nurse failed to respond to fetal distress and Roberto suffered a lack of oxygen as a result.

He was born with hypoxic ischemic encephalopathy, a type of brain damage that is caused by inadequate oxygen and may cause death, developmental delays, mental retardation and cerebral palsy.

A Vulnerable Time
Labor and delivery is an especially vulnerable time for infants, and the slightest mistake can have devastating consequences. When a child is diagnosed with a brain injury such as cerebral palsy after a traumatic delivery, it may be a good idea for the parents to do some further investigation.

On Friday, an Idaho jury awarded $3.25 million to a 4-year-old boy who suffered brain injury during birth and now lives with cerebral palsy. His mother, a former inmate at Pocatello Women’s Correctional Center, was also awarded damages in the amount of $375,000.

Complaints Ignored
Jamie Lysager was about seven months pregnant when she began to complain of severe abdominal pain. Lysager was checked by a nurse at the prison infirmary, where she remained for the next 11 hours despite her complaints.

It turned out that Lysager was in preterm labor. At the urging of prison guards, the nurse finally checked on her again. This time the nurse had Lysager sent to the hospital, but in a prison van rather than an ambulance.

Birth on Cold Concrete
In a wheelchair on her way to the van, Lysager gave birth to son Taylor. He was born onto a cold concrete ramp. Prison guards took the mother and infant back inside where they remained until an ambulance came. During this time, Taylor was not getting sufficient oxygen to his brain

At about two years of age, Taylor was diagnosed with Periventricular Leukomalacia (PVL), a permanent type of brain injury common in premature babies. It is caused by oxygen deprivation and/or poor blood circulation and is often a precursor to cerebral palsy.

Medical Negligence
Lysager filed her lawsuit against Prison Health Services, the group that previously administered medical services for the state’s Department of Corrections, and two of its employees. The lawsuit claimed medical negligence, among other things.

Medical negligence often has dire consequences that aren’t always immediately apparent. However, as soon as medical negligence is suspected, it’s wise to seek the advice of an attorney who can determine what, if any, legal action can be taken.

On Monday, a jury in Illinois State Court in Chicago determined that Janice DiCosolo, 38, died in February 2004 because the patch she was wearing delivered a fatal dose of the narcotic fentanyl.   The Duragesic patch is made by Alza Corporation which is owned by Johnson & Johnson; the patch is distributed by Janssen Pharmaceutica, another Johnson & Johnson company.   The jury awarded her family 16.6 million dollars.

“We disagree with the jury’s verdict,” said Greg Panico, a spokesman for the Johnson & Johnson units, in an e-mailed statement. “We are considering our options for an appeal.”

Defense lawyers cited an autopsy report that indicated DiCosolo died from the interaction of at least 5 drugs including fentanyl that were found in her system.

At trial plaintiff’s lawyers said that Fentanyl is a drug that is 100 times more potent than morphine and is contained in a patch that is intended to be worn for 72 hours, then discarded.  Jim Orr, a plaintiff’s attorney, said that each patch contained enough fentanyl to kill 10 men, each weighing 150 pounds.

Janssen recalled one lot of Duragesic patches in February 2004, a day after DiCosolo died, because of improper sealing of the adhesive backing of the devices, defense lawyer David Sudzus wrote in a court filing. The patch worn by DiCosolo was from that lot, he said.

The patches generated $1.16 billion  dollars in sales for Johnson & Johnson last year but the company has still lost each case that has gone to a jury.

In July 2006, a state court jury in Houston ordered Janssen and Alza to pay $772,500 to the family of a Texas woman who died after her patch leaked.  Johnson & Johnson in July 2007 agreed to pay the family of a Florida man $2.5 million to resolve claims that Adam Hendelson, 28, had died after using one of the patches.  A jury in Sanford, Florida, awarded more than $13 million to the family of Susan Hodgemire, a 34-year-old mother of five who died after using a Duragesic patch in 2002.

On January 12th Johnson & Johnson will be facing another pain patch trial in federal court in Chicago.

Drug giant, Pfizer, has reached an agreement that will ultimately settle most of the lawsuits filed against the company over the side effects of two of it’s drugs, Celebrex and Bextra. It expects that the $894 million dollar agreement will settle more than 90 percent of the claims filed because the drugs are alleged to have caused major side effects to the plaintiffs - heart attacks and strokes.

Pfizer hopes that this will be accomplished by year’s end and also hopes that remaining claimants will be included in the settlement.

General Counsel Amy Schulman told The Associated Press that Pfizer will fight any remaining personal injury suits with court motions or at trial. “I don’t think either side has an interest in protracting this,” Schulman said in an interview.

Out of the total settlement, $745 million will go to settle personal injury cases, $60 million will cover settlements with attorneys general in the 33 states and the District of Columbia, and $89 million will cover consumer fraud class action cases over reimbursement for money spent on the two drugs. Two additional states, Louisiana and Mississippi, still have pending cases regarding Pfizer’s promotion of the drugs.

Schulman has indicated that Pfizer had been negotiating with opposing lawyers for some time. “Litigation can be distracting, and putting these matters behind us helps our shareholders and, most importantly, patients and doctors,” Schulman said.

Pfizer had removed Bextra from the market in 2005 after Merck & Company had removed it’s painkiller, Vioxx, from the market. Merck has begun paying a 4.8 billion dollar settlement that ends about 50,000 lawsuits that claimed Vioxx caused heart attacks, strokes and death.

Celebrex is currently the only Cox-2 inhibitor that the Food and Drug Administration has allowed to stay on the market. These drugs - Bextra, Celebrex and Vioxx - were superior to the usual nonsteroidal anti-inflammatory drugs(NSAIDs) like aspirin, ibuprofen and naproxen because they inhibited only the body enzymes that produced the inflamation(Cox-2). The NSAID drugs also inhibited the Cox-2 enzyme but, in addition, inhibited the Cox-1 enzyme which is important in keeping the mucous lining of the stomach intact. Without the mucous lining, stomach ulcers and bleeding could occur.

Interesting question before a Wisconsin appeals court. In it’s decision the appeals court upheld an earlier lower court decision that allowed a man’s wife and daughter to inherit his estate even though they assisted him to commit suicide.

In what some legal analysts say is a precedent setting case in the nation, the court held that while state law prohibits anyone who “intentionally kills” another person from inheriting and benefiting from the death, Wisconsin’s District 4 Court of Appeals said that provision isn’t applicable to cases of assisted suicide.

Edward Schunk suffered from non-Hodgkins Lymphoma and had been hospitalized. His doctor allowed him a one-day pass to go home and see his dogs one last time. His wife and daughter took him home.

Later that day he was found dead from a gunshot wound - self inflicted. His entire estate, about half a million dollars, was left entirely to his wife and daughter with nothing being left to his other five children. They contested the will saying that his wife and daughter assisted in his death by providing the shotgun and therefore should not be entitled, under Wisconsin law, to inherit because it’s a felony to assist another to commit suicide. The law provides that anyone who “intentionally kills” another cannot inherit from that person.

The Court held that that provision of law is not applicable to assisted suicide. The key phrase for purposes of this appeal is “unlawful and intentional killing of the decedent”, the court held. “The objectors contend that this plainly includes assisting the decedent to commit suicide. We disagree and conclude the phrase plainly does not include this conduct……”unlawful” and “intentional” modify “killing” by limiting its meaning. If, as we have concluded, assisting another to commit suicide is not “killing” another, it does not become so because the conduct is unlawful and intentional.

The three judge panel was unanimous in the decision and concluded that Edward deprived himself of life by shooting himself with the shotgun.

Pro-lifers are upset because they think that this does not hold those who assist in suicide to be accountable and gives them financial motive to assist the suicide.

John Stapleton, 19, died in 2002 when he backed his car into a natural gas wellhead that was unfenced and unprotected.  The wellhead exploded and John burned to death.  In 2006 a Santa Fe jury determined that the oil and gas company - Energen Resources Corporation - was negligent and it’s conduct was reckless in John’s death.

That determination was upheld by the state Court of Appeals.  The court rejected Energen’s contention that the award was excessive and therefore unconstitutional.

Energen “knew that there was a hazard of someone colliding with the wellhead, knew that if that happened serious bodily harm or death could result, knew that the well site was in a highly traveled area, knew that erecting a barricade or fence would prevent the hazard, and still chose not to barricade the well site,” the court said.

John’s family was awarded 1.9 million dollars in compensatory damages and 13 million in punitive damages.  Until the accident in 2002 Energen had taken no action to protect this wellhead nor about 1000 others it owns in the San Juan Basin.  The judges said this showed a reckless disregard for public safety and  the 13 million dollar punitive damages is appropriate to achieve the dual goals of punishment and deterrence in this case.”

The family of Cody Amezcua, 20, a second person killed in the explosion, settled its lawsuit before trial for an undisclosed amount.

Tanya Kach was 14 years old when she ran away in 1996 to live with Thomas Hose who was then 37.  Kach filed a lawsuit in 2006 after having lived in captivity in the home that Hose shared with his parents.  Also named in the suit is the security firm that hired Hose and the McKeesport school where he worked.

Kach testified that Hose kept her in an upstairs bedroom for four years before allowing her to start going out when his elderly parents weren’t home. In 2005, he changed Kach’s name to Nikki Allen and began introducing her to people as his girlfriend.

U.S. District Judge Gary L. Lancaster ruled Friday that Kach’s civil rights claims were untimely.   He ruled that the lawsuit was beyond the 2-year statute of limitations, that the clock started when she turned 18 and stopped two years later.

“(Kach) was victimized not only by an adult who preyed on her, but by the many adults who failed her,” Lancaster wrote. “Yet, these circumstances cannot overcome the strong legal precedent supporting the enforcement of statutes of limitations.”

Kach’s lawyer, Lawrence Fisher, thinks the judge made a mistake.  He doesn’t understand how anyone could think that a 14 year old could assert claims in a court especially when she  had been tortured psychologically and threatened with her life.   He has notified Lancaster that he will appeal the decision to the 3rd Circuit Court of Appeals in Philadelphia.

Lancaster’s decision in a similar case was overturned in appeal when he ruled the statute of limitations applied to a woman who was mentally incapacitated and was involuntarily sterilized.  In that case the 3rd Circuit Court had ruled that there were extraordinary circumstances that had prevented the woman from filing in a timely manner.

Hose is now 51 and serving a 15 year sentence for charges related to Kach’s disappearance.

The rock band Great White has entered into a settlement agreement for its role in the 2003 fire at The Station night club in Rhode Island.  They have agreed to a million dollar settlement. 

The defendants in the case are listed as the band members, their tour manager, Daniel Biechele, Manic Music Management Inc., and Knight Records Inc. Band member Ty Longley was among those killed.

One hundred people died in the inferno and about 200  others suffered injuries.  The inferno started when when Biechele lit the band’s pyrotechnics display in the West Warwick nightclub, sparking a flame that spread to foam insulation used as sound proofing. The foam acted as a fuel for the fire and a thick, black smoke quickly poisoned the air, making it a disaster within minutes.

Biechele admitted that he did not have a permit for the fireworks display and pleaded guilty to 100 counts of involuntary manslaughter.  He served two years of his 4-year prison term before being paroled.

The owners of the nightclub pleaded no contest to 100 counts of involuntary manslaughter.  Michael Derderian  served four years in prison; Jeffrey Derderian received probation.

The fire was the fourth deadliest nightclub fire in U.S. history and has so far resulted in about 175 million dollars in settlements.   Among those making settlements are the State of Rhode Island and the Town of West Warwick, each paying $20 million; Anheuser-Busch and a Rhode Island beer distributor,  each paying $21 million and several foam manufacturers agreeing to pay $30 million.

By settling these lawsuits, none of the defendants have admitted any wrongdoing.