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Articles Posted in Medical Negligence

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patient roomLawsuits arising in the context of nursing home death, abuse or neglect can sometimes involve multiple parties and several legal theories of liability. The various issues between the parties may be settled prior to trial by agreement, by the trial court through summary judgment, or at trial between the remaining parties.

A recent case from a nearby state illustrates some of the procedural hurdles that can arise when a nursing home patient is allegedly a victim of both nursing home neglect and medical malpractice by a physician practicing geriatric medicine.

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A medication error can be deadly. In this case in a Kentucky nursing home, a certified medical technician gave insulin to someone who didn’t need it, and the patient died. Two other patients were injected by this same technician, but they lived through the ordeal.

Most nursing homes and hospitals have protocols for ensuring that patients receive the right medicine. If a patient is still the victim of a medication error, that is an act of negligence or even abuse, and families of that patient can take action.

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Part of the foundation of a doctor-patient relationship is the idea that the patient has the right to refuse a particular medical treatment if he or she is not willing to accept the risks that comes with such treatment. A doctor must adequately inform the patient of the risks of a procedure and obtain the patient’s “informed consent” before proceeding.

Although it sounds simple, deciding exactly what “informed consent” means can be very complex. In a recent case, the Kentucky Court of Appeals was called upon to determine whether a trial court in Fayette County had properly instructed a jury on the issue.

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medical malpracticeIn cases involving injuries to a person, a plaintiff must establish the four traditional elements of negligence – duty, breach of duty, damages, and causation – by a preponderance of the evidence. This typically requires some type of medical evidence, including expert testimony concerning the nature, extent, and cause of the injuries at issue. In addition to the medical evidence offered by the plaintiff in support of his or her case, a defendant may also wish to discover additional information about the plaintiff’s medical treatment.

Prior to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), it was a common practice for the litigants in personal injury cases, including medical malpractice cases, to conduct ex parte interviews with the plaintiff’s doctors in order to determine whether a deposition, which is considerably more costly than a mere interview, was necessary in a given case. Since HIPAA, however, many state and federal courts have been called upon to determine whether this one-sided, informal discovery is still acceptable.

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medicationAccording to government projections, the number of older Americans who rely upon nursing homes, alternative residential care, or home care services is steadily increasing. The Centers for Disease Control and Prevention predicts that this group will increase from approximately 15 million in the year 2000 to around 27 million by 2050. Since these vulnerable, often frail older people rely on others for health care, personal care, and supportive services, nursing home understaffing can drastically affect patient care, and it’s all too common.

The Expected Makeup of a Nursing Home Staff

It takes a variety of personnel to ensure that residents are properly cared for. This can include registered nurses (RNs), licensed practical nurses (LPNs), licensed vocational nurses (LVNs), certified nursing assistants (CNAs), physical therapists (PTs), and others, such as janitors, cooks, and office personnel. Every nursing home in the country is required to report its staffing hours to its state survey agency. While staffing hours is an important number because it shows the total number of hours worked divided by the total number of residents, it does not necessarily reflect the level of care given to any particular resident or even the general level of care on a given day.

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Silhouette of mother dancing with childAttorneys who handle personal injury cases such as car accidents, truck accidents, or nursing home negligence cases are often asked, “How much is my case worth?” Unfortunately, there is not an easy answer to that question, since the amount of damages that may be available in a given case depends upon several factors.

Typically, some possible elements of damages include past medical expenses, future medical care and rehabilitation, past lost wages, loss of future earning capacity, and pain and suffering.

In some situations, loss of consortium damages may also be available. “Loss of consortium” refers to the loss of the benefits of a family relationship, such as that between a parent and child or husband and wife. In the case of spousal consortium, Kentucky law says the claim is for the right to the services, assistance, aid, society, companionship, and conjugal relationship between spouses. See the post on Kentucky Court Report covering the case of Tina Martin, Administratrix of the Estate of Billie Carol Shreve, Deceased; and Donald Ray Shreve, Individually v. Ohio County Hospital Corporation, as an example.

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hospital bed2Nursing home residents who are unable to change their sitting or lying position on their own are at particular risk for an injury known as a “bedsore.” Because of these residents’ confinement to a wheelchair or bed, they must rely on caregivers to reposition their bodies frequently. If this does not happen, bedsores can damage a resident’s skin and the tissue beneath it, particularly the bonier areas of the body such as the shoulder blades, hips, tailbone, and ankles.

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file0001362090004 morguefile wax115The Kentucky Court of Appeals has stated a medical malpractice lawsuit was not subject to arbitration. In Pikeville Medical Center, Inc. v. Bevins, an 85-year-old man was admitted to a Kentucky hospital with renal failure. Upon his arrival at the medical facility, the elderly man signed an agreement stating he would resolve any medical malpractice or other related disputes with the hospital through binding arbitration.

The man was apparently alert and awake when he entered the hospital. Three days after his admission, however, the elderly man reportedly fractured his neck when he fell from his hospital bed. As a result, the man underwent surgery and was discharged to a long-term care facility, where he died about one month later.

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chest-xray-262068-m-2In a recent Kentucky Supreme Court case, a medical malpractice suit was filed by a couple against a doctor and his practice. The doctor had performed a thyroidectomy on the wife. She started experiencing breathing difficulties the night of the surgery. She was placed on a ventilator for four days and stayed in the hospital a total of 12 days. Post-surgery, she had trouble breathing and talking. She consulted with an otolaryngologist. He diagnosed her with right vocal cord paralysis. The couple filed a medical negligence lawsuit in connection with the thyroidectomy.

During discovery, the doctor asked whether other physicians had stated that he deviated from good medical practice. The plaintiffs’ response stated that a surgeon had verified there was a departure from the appropriate standard of care to cut or otherwise alter the vocal cord. The response cited various treating physicians. The doctor filed a motion to set the case for trial. The judge set a schedule requiring the couple to disclose expert witnesses on a particular date. The order by the judge did not contain a specific deadline for disclosure of expert witnesses. It did require quick and efficient witness disclosure.

Three years after the suit was filed the doctor moved for summary judgment. He argued they had failed to identify a surgeon who would testify he deviated from the standard of care. The plaintiffs filed a motion to reschedule the trial and to get an extension of time to list experts. They argued that summary judgment was not appropriate because evidence in the depositions raised genuine issues of material fact. The woman’s medical records showed he was being treated for hypothyroidism, or an underactive thyroid before the surgery. She consulted with an internist because she was short of breath and had palpitations. An ultrasound showed she had an enlarged right lobe of thyroid with a small lesion. She was referred to the defendant doctor to see whether removal of the gland was appropriate. She consulted with him once before the surgery and signed a consent form in connection with it. The form explained she had a “thyroid storm.” The internal medicine doctor said a thyroid storm is an emergency condition. The appropriate treatment is hospitalization and consultation with an endocrinologist. Surgery is not appropriate. Continue reading

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ambulance-1334532-mIn a recent case, a Kentucky Court of Appeals considered whether punitive damages were appropriate in a case of hospital negligence. The hospital disputed the punitive damages as excessive, arguing that it had not ratified its employees’ conduct nor acted with gross negligence.

The case arose when a 39-year-old man came to the hospital’s emergency room with abdominal pain, constipation, nausea and vomiting. He was given medication for his pain and treated with other minor procedures. Lab tests and x-rays were ordered, but were not actually conducted. The man was discharged and taken around to family members, but because none of them offered him a place to stay he came back to the hospital, which arranged for a hotel room.

He came back to the hospital the next morning, after throwing up dried blood for several hours. Lab tests and x-rays were conducted. He was discharged after noon. He died later that day from heart disease and complications from an ulcer. Continue reading