Jeffrey Beausay

Archive for the ‘Medical Malpractice’ Category:

Glaucoma

Overview

Glaucoma is not just one eye disease, but a group of eye conditions resulting in optic nerve damage, which causes loss of vision. Abnormally high pressure inside your eye (intraocular pressure) usually, but not always, causes this damage.

Glaucoma is the second leading cause of blindness. Sometimes called the silent thief of sight, glaucoma can damage your vision so gradually you may not notice any loss of vision until the disease is at an advanced stage. The most common type of glaucoma, primary open-angle glaucoma, has no noticeable signs or symptoms except gradual vision loss.

Early diagnosis and treatment can minimize or prevent optic nerve damage and limit glaucoma-related vision loss. It’s important to get your eyes examined regularly, and make sure your eye doctor measures your intraocular pressure.

Diagnosis

These are some of the tests that can establish a diagnosis of glaucoma:

Measuring intraocular pressure. Tonometry is a simple, painless procedure that measures your intraocular pressure, after numbing your eyes with drops. It is usually the initial screening test for glaucoma.
Test for optic nerve damage. To check the fibers in your optic nerve, your eye doctor uses instruments to look directly through the pupil to the back of your eye. This can reveal slight changes that may indicate the beginnings of glaucoma.
Visual field test. To check whether your visual field has been affected by glaucoma, your doctor uses a special test to evaluate your side (peripheral) vision.
Measuring cornea thickness (pachymetry). Your eyes are numbed for this test, which determines the thickness of each cornea, an important factor in diagnosing glaucoma. If you have thick corneas, your eye-pressure reading may read higher than normal even though you may not have glaucoma. Similarly, people with thin corneas can have normal pressure readings and still have glaucoma.
Other tests. To distinguish between open-angle glaucoma and angle-closure glaucoma, your eye doctor may use a technique called gonioscopy in which a special lens is placed on your eye to inspect the drainage angle. Another test, tonography, can measure how quickly fluid drains from your eye.

We are handling a case involving the delayed diagnosis of glaucoma. Early indicators of glaucoma (increased intra-ocular pressure, increased cup-to-disc ratio, and abnormalities on the visual field test) were noticed but not acted on. Our client meanwhile lost most of her vision.

Jeffrey Beausay

Tags: Delayed Diagnosis, Glaucoma

Medical Malpractice: Standard of Care Defined

Banff Canada 2 Negligence is a failure to exercise reasonable care under the circumstances.

The definition of “medical negligence” or “medical malpractice” dates back to 1928 when the Ohio Supreme Court decided Ault v. Hall (1928), 119 Ohio St. 422:

In an action against a surgeon for malpractice, the jury should be instructed that the plaintiff must show by a preponderance of the evidence and the jury must find that the defendant in the performance of his service either did some particular thing or things that physicians and surgeons of ordinary skill, care and diligence would not have done under the same or similar circumstances, or that the defendant failed or omitted to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances.

The rule was reiterated in Bruni v. Tatsumi (1976), 46 Ohio St.2d 127:

1. In order to establish medical malpractice, it must be shown by a preponderance of evidence that the injury complained of was caused by the doing of some particular thing or things that a physician or surgeon of ordinary skill, care and diligence would not have done under like or similar conditions or circumstances, or by the failure or omission to do some particular thing or things that such a physician or surgeon would have done under like or similar conditions and circumstances, and that the injury complained of was the direct and proximate result of such doing or failing to do some one or more of such particular things.

2. The standard of care for a physician or surgeon in the practice of a board-certified medical or surgical specialty should be that of a reasonable specialist practicing medicine or surgery in that same specialty in the light of present day scientific knowledge in that specialty field; therefore, geographical considerations or circumstances control neither the standard of the specialist’s care nor the competence of the testimony of an expert in that specialty.

That is a lot of words to say, “A physician must exercise reasonable care under the circumstances.”

Today, even Family Medicine and Internal Medicine are board certified specialties, so presumably the second paragraph should govern all physicians. Nevertheless, practicing trial lawyers use the phrase “standard of care” to denote conduct that is reasonable under the circumstances; if conduct is unreasonable, then the physician is deemed to have “deviated” from the “standard of care.” These concepts are confusing even to those who practice in this area every day. It would better serve doctors, lawyers, judges, and juries if the Ohio Supreme Court could more clearly state what is meant by “medical negligence”, ”medical malpractice,” or “standard of care.” They should adopt the “reasonable conduct under the circumstances” language.

If a person has knowledge, skill, or intelligence superior to that of the ordinary person (such as a trained physician), the law will demand of that person conduct consistent with it. Professionals are required not only to exercise reasonable care in what they do, but also to possess a standard minimum of special knowledge and ability. A doctor must have and use the knowledge, skill, and care ordinarily possessed and employed by members of the profession in good standing; a doctor will be liable if harm results because he does not have them.

T. Jeffrey Beausay

Tags: Medical Malpractice

Meningitis

Meningitis is an inflammation of the membranes (meninges) and cerebrospinal fluid surrounding your brain and spinal cord, usually due to the spread of an infection. The swelling associated with meningitis often triggers the “hallmark” symptoms of this condition, including headache, fever, and a stiff neck.

Most cases of meningitis are caused by a viral infection, but bacterial and fungal infections also can lead to meningitis. Depending on the cause of the infection, meningitis can resolve on its own in a couple of weeks — or it can be a life-threatening emergency.

If you suspect that you or someone in your family has signs or symptoms of meningitis, seek medical care right away. Early treatment can prevent serious complications.

If you or someone in your family had meningitis that was not properly diagnosed, please feel free to call me to discuss the case.

Jeff Beausay

Tags: Medical Conditions, Meningitis

Caps on Damages: Medical Malpractice

Under Ohio law, in medical malpractice cases (i.e., not personal injury or wrongful death cases), the amount one can recover for non-economic losses caused by a negligent physician or other healthcare provider is capped (limited). See RC 2323.43. The caps are as follows:

A. Catastrophic Injuries: $500,000/plaintiff/$1Million/Occurrence

“Catastrophic” Defined: A permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system, or a permanent physical functional injury that permanently prevents the injured person from being able to independently care for self and perform life sustaining activities.

B. Non-Catastrophic Injuries: The greater of $250,000 or 3 times the plaintiff’s economic losses (up to $350,000/plaintiff) or a maximum of $500,000 per occurrence.

RC 2323.43 went into effect on April 11, 2003.

Comments:

First, there is no cap on economic damages, such as medical expenses, loss of income, future medical care, etc. The caps only apply to non-economic damages, such as pain and suffering, emotional distress, mental anguish, etc.

The Ohio Supreme Court will need to determine if these caps comply with the Ohio Constitution. The Court already has upheld the personal injury caps (See Post on PI caps), but the PI caps do not apply to ”catastrophic injuries” as defined in the statute; in medical malpractice cases, on the other hand, the caps are higher than those imposed in non-catastrophic cases.

TJB’s Opinion

I’m sure you would like to know how I feel about damages caps. I have no problem imposing damages caps, so long as the caps are fair and reasonable. For example, I feel that the personal injury damages caps for non-catastrophic injuries (see RC 2315.18) are reasonable; they protect a defendant against an outlandish jury verdict for non-catastrophic injuries. But there must be an exception for severe injuries, and the cap needs to be substantial in such cases (i.e. much more than the RC 2315.18 or 2323.43 caps). If you were seriously injured and had a permanent disability, these caps are not nearly sufficient to cover the losses that might accompany such injuries. That’s my opinion.

Jeff Beausay

Tags: Caps on Damages, Medical Malpractice

Birth Injuries/Cerebral Palsy

cp-photo One of the most controversial areas of medical malpractice litigation is “birth injury” litigation. The most common of these are brought by the parents of children with cerebral palsy (CP), who claim that the CP was caused (at least in part) by the negligence of the defendant physicians or nurses before, during, or shortly after labor and delivery. ”Birth injury” is a misnomer because these types of injuries can occur prenatally from conception until birth, and can indeed occur after birth. The cases are usually filed against an obstetrician, but can also include pediatricians, nurses, hospitals and others. These cases are controversial because they involve large sums of money, and the cause of CP in many cases is not known. Large settlements and jury verdicts result in higher insurance premiums for the affected doctors, a cost that then is passed on to consumers of health care (in the form of health insurance), and the public at large (in the form of health care that is paid for under Medicaid, Medicare, and other government programs).

Definition of Cerebral Palsy. “Cerebral palsy” is a general term that describes a group of disorders that appear during the first few years of life and affect a child’s ability to coordinate body movements. These disorders are caused by damage to a child’s brain early in the course of development. The damage can occur during fetal development, during the birth process, or during the first few months after birth.

Cerebral palsy ranges from mild to severe. Physical signs of cerebral palsy include weakness and floppiness of muscles, or spasticity and rigidity. In some cases, neurological disorders such as mental retardation or seizures also occur in children with cerebral palsy.

Cerebral palsy is not curable. However, getting the right therapy for your child can make a big difference. Today, children with cerebral palsy benefit from a wide range of treatment options and innovations.

cp-types

Incidence. About 1-2 babies/1000 born at or near term (> 34 weeks) develop cerebral palsy. It is estimated that 15-20% of cases of CP are caused during labor and delivery.

Causes. The cause of CP in many cases is not known. We know that CP results from an abnormality in or injury to the cerebrum (the largest area of the brain), which controls sensation and voluntary motor function. But we do not always know how or when the abnormality/injury occurs. Although cerebral palsy affects movement, the underlying problem originates in the brain, not in the muscles themselves.

Doctors and researchers don’t completely understand the cause of all cases of cerebral palsy, which are usually present at birth (congenital). For many years, doctors and researchers believed that cerebral palsy was caused by a lack of oxygen during birth. Now they believe that only a small number of cases are caused by problems during labor and delivery.

The causes of Cerebral Palsy include maternal infection during pregnancy, incompatibilities between the blood of the mother and her fetus, genetic or metabolic disorders causing abnormal brain development before birth, and disturbances to brain circulation before birth, caused by an artery spasm or blood clot, similar to a stroke in adults.

Comments. Birth injury litigation has caused a great deal of controversy over the last 20 or so years. Life care plans for individuals with CP usually run in the millions of dollars, depending on the severity of the disability. Consequently, these cases involve large sums of money, and both sides (plaintiffs and defendants) have substantial financial risk in going to trial.

It is almost universally agreed that perinatal asphyxia can cause CP, but so can many other things. The difficulty lies in proving the cause in any given case. Not only must we prove what caused the CP, we also must prove when the injury occurred, and that the injury could have been avoided.

If you suspect that your child has sustained a birth injury due to the negligence of a healthcare provider, please feel free to contact us to discuss your case.

Jeffrey Beausay

Tags: Birth Injuries/Cerebral Palsy, Medical Malpractice

Periventricular Leukomalacia (PVL)

What is Periventricular Leukomalacia (PVL)?

Periventricular leukomalacia (PVL) is damage and softening of the white matter, the inner part of the brain that transmits information between the nerve cells and the spinal cord, as well as from one part of the brain to another. Periventricular means around or near the ventricles (the spaces in the brain containing the cerebrospinal fluid); leuko means white; malacia means softening.

With PVL, the area of damaged brain tissue can affect the nerve cells that control motor movements. As the baby grows, the damaged nerve cells cause the muscles to become spastic or tight, and resistant to movement. Babies with PVL can develop cerebral palsy (a group of disorders that prevent the child from controlling his/her muscles normally), and may have intellectual or learning difficulties. PVL can occur alone or in addition to intraventricular hemorrhage (IVH) (bleeding inside the brain).

There are two basic components to PVL: Focal necrosis and more diffuse gliosis. In cystic PVL, the focal necrotic component is large and evolves into cysts. In noncystic PVL, the focal necrotic component is small and evolves into small glial scarring, rather than cysts. Cystic PVL is the most severe form of PVL.

What causes PVL?

The white matter of premature infants is vulnerable, especially to ischemia (reduced blood flow), but also to infection/inflammation. These two causes can operate in concert to potentiate each other. Thus, most babies with PVL are premature.

Outcome

The most common outcome is spastic diplegia, which means tight, contracted muscles, especially in the legs.

Diagnosis

Head ultrasound: Usually performed at birth and over a period of weeks thereafter.

MRI (magnetic resonance imaging): Shows necrosis (“softening”) of white matter dorsal and lateral to the external angles of the lateral ventricles.

Treatment

There are no treatments for PVL directly. However, parents can often benefit from physical therapy, occupational therapy, and speech therapy offered through local organizations who specialize in helping children with this and similar disorders.

Prevention

Corticosteroids are often given to pregnant mothers at risk for premature birth. These medications can reduce the respiratory difficulties these children often encounter at birth.

For more information, see the National Institute of Health section on PVL.

Contact Me

If you or someone you know has a child with a suspected birth injury, it is important that you consult with someone who actually handles birth injury litigation; it is very specialized, and very few attorneys know what they’re doing in these cases. In my career, I have been fortunate to have handled many of these cases (for plaintiffs and defendants). If you would like to discuss your case, please feel free to contact me.

T. Jeffrey Beausay

Tags: Birth Injuries/Cerebral Palsy, Medical Malpractice, Periventricular Leukomalacia

Different Methods

The “Different Methods” jury instruction (3 OJI Section 331.02, para 3) should only be used when there is evidence that more than one method of diagnosis or treatment is acceptable for a particular medical condition. See Pesek v. Univ. Neurologists Assoc., Inc. (2000), 87 Ohio St.3d 495; Peffer v. Cleveland Clinic Found., 177 Ohio App.3d 403, 2008-Ohio-3688.

Tags: Ohio Jury Instructions

Medical Malpractice: Statute of Limitations

Q. Suppose you are severely injured as a result of medical malpractice or hospital negligence. How long do you have to file your case against the negligent party/parties? In other words, what is the statute of limitations in medical malpractice cases in Ohio?

A. Under Ohio law, an action upon a medical claim “shall be commenced within one year after the cause of action accrued.” RC 2305.113. This applies to negligence claims against any type of healthcare provider.

Q. But when does the cause of action accrue?

A. The Ohio Supreme Court has held that a cause of action “accrues” upon the occurrence of a “cognizable event” (substituting another vague phrase). The cognizable event is “some noteworthy event which does or should alert a reasonable person-patient that an improper medical procedure, treatment, or diagnosis has taken place.”

In Norgard v. Brush Wellman, Inc., 2002-Ohio-2007, 95 Ohio St.3d 165, the Ohio Supreme Court held: “Discovery of an injury alone is insufficient to start the statute of limitations running if at that time there is no indication of wrongful conduct of the defendant.” Thus, two things must happen for the one year statute to start running: 1) Patient discovers that s/he is injured (usually–but not always–this is obvious); 2) Patient discovers that his/her injury was caused by the wrongful conduct of the defendant. It is thus the knowledge of the wrongful conduct that triggers the one year statute. Essentially there is a moment in time when a reasonable patient suspects that his/her physician did something wrong; that is the cognizable event as I understand it.

There is a provision in the statute that lets you extend the statute of limitations (SOL) by 180 days, which we refer to as a “180-day letter.” But don’t take any comfort in that because, if your 180-day letter is for any reason not perfected or you don’t serve the right parties, you’re SOL (alternative definition).

Also, there are exceptions to the rule. For example, the SOL does not run as to minors until the minor turns 18 years of age. And the SOL does not apply to mentally incompetent persons. And if medical negligence causes death of the patient, the wrongful death claim carries a 2 year statute of limitations.

TJB’s Comments:

Unlike motor vehicle accidents and wrongful death claims, which carry two year statutes of limitations, medical malpractice cases have a one year statute of limitations. So if you suspect medical malpractice (medical negligence), you should consult an attorney immediately. Understand that it takes us several weeks to gather necessary medical records and send them to experts for review. And there may be exceptions to these rules, so be sure to call and ask if you’re not sure. And don’t wait til the last minute!

Jeffrey Beausay

Tags: Medical Malpractice, Statute of Limitations

Medical Malpractice: General

Vitruvian Man

Under Ohio law, medical malpractice (or medical negligence, as it is sometimes called) is the failure of a health care provider to use ordinary skill, care, and diligence under the circumstances, which results in severe injury or death to the patient. This is called the “standard of care.” Said another way, doctors, nurses, and all other healthcare providers must act reasonably and appropriately in any given circumstance, and the failure to do so can result in liability if their negligence causes substantial harm to the patient.

Medical malpractice cases are more difficult to prove than cases of ordinary negligence, such as motor vehicle accidents, premises liability, etc. There are several reasons for this. First, proving that a doctor or nurse was negligent in the first place is more complicated than, for example, proving that someone ran a red light. The standard of care under the circumstances is often debateable, whereas everyone agrees that it is negligent to run a red light.

Second, medical negligence cases are expensive. Expert witnesses must be retained to prove that the defendant was negligent, and that the negligence caused substantial harm to the patient. Medical experts are expensive, which makes prosecuting these cases expensive.

Because these cases are risky and difficult to prove, very few attorneys have the skills and resources to handle them. It is especially important in medical malpractice cases that you consult with an experienced trial attorney who handles medical malpractice cases (as opposed to someone who trolls for these cases, then gives them to someone else to handle).

In my career, I have had the fortune of handling many medical malpractice cases, both for physicians and for patients. I therefore understand the ins and outs of medical malpractice litigation from both sides.

If you or a loved one have been injured as a result of medical negligence, please feel free to contact me to discuss your case.