In a recent birth injury lawsuit, a jury award of $11 million will stand after a judge denied a defendant’s motion for a new trial.
The jury made the award in November 2013 in a lawsuit over birth injuries suffered by a child whose mother, Haley Powell, used the antiepileptic drug Topamax during pregnancy. The suit alleged that the mother’s use of the medication caused the boy to be born with a severe cleft palate and other birth injuries. Janssen Pharmaceuticals, a subsidiary of Johnson & Johnson that manufactures the drug, was the defendant in the case.
The jury found that Janssen failed to warn the mother of the risk of birth injuries from the use of Topamax during pregnancy.
In denying the motion for a new trial, Judge George W. Overton of the Philadelphia Court of Common Pleas held that the amount of the award was appropriate given the severity of the injuries. Overton noted that the boy struggles to be understood in conversation, has residual scarring from surgery, and faces future additional surgeries as well as psychological and emotional challenges stemming from the cleft palate.
At the time of the trial, Bloomberg News reported that the plaintiffs’ attorneys claimed that Janssen intentionally withheld safety reports suggesting a link between Topamax and birth injuries.
The Illinois Workers’ Compensation Commission recently ruled against a train operator who claimed a mental disability based on the trauma of believing that the train he was operating had struck and killed a pedestrian.
The worker was operating a train exiting a tunnel when he observed two young men running across the tracks. The operator was not able to stop the train, and he heard a thumping noise that caused him to believe that the train had run over and killed one of the men. However, upon exiting the train, the operator observed the two men running away.
The train operator sought psychological counseling for sleep disturbance, anxiety, flashbacks, fatigue and headaches. He also sought workers’ compensation benefits for a psychiatric disability.
The arbitrator in the case denied the worker benefits, finding that he was not exposed to a severe and sudden emotional shock. The arbitrator’s decision was confirmed by the commission.
The commission held that the operator had testified credibly as to the events. However, because the injured man was able to stand up under his own power, jump a fence and run away, the operator did not face the emotional shock of witnessing the aftermath of what he believed had happened.
In addition, the commission agreed with the arbitrator’s finding that the alleged mental disorder did not arise from a situation beyond the usual emotional tension and strain that workers must experience, particularly those who operate motorized vehicles.
The widow and children of a Chillicothe, Illinois man who died four years ago were recently awarded $1.6 million by a Peoria County jury.
The award came after a three-week medical malpractice trial and 10 hours of jury deliberation over three days. Eventually, the jury found one doctor and OSF Saint Francis Medical Center liable for Donald McIntyre’s death in September 2009. However, St. Francis employees and a charged resident were not found negligent regarding McIntyre’s care.
McIntyre was diagnosed with autoimmune hemolytic anemia when he visited St. Francis on September 6, 2009. The condition causes red blood cells to be destroyed, limiting the oxygen that can be distributed through the body. According to the lawsuit, the proper treatment for the condition is a blood transfusion and administration of steroids, but the procedures were not followed properly. The complaint alleged that McIntyre received only two units of blood, which were not enough to stabilize his condition. He died of cardiac arrest.
The hospital has released a statement expressing its condolences to the family and saying that it agreed with the jury’s finding that OSF employees were not negligent. The hospital said it was reviewing its options in regard to the finding that the hospital was the apparent principal of the doctor who was found negligent.
A Michigan woman in a birth injury lawsuit has been awarded almost $13 million by a jury.
The lawsuit alleged that Genesys Regional Medical Center made mistakes during the delivery of the woman’s daughter, disfiguring the girl and restricting her from the full use of her arm.
The lawsuit stated that during the January 2008 delivery, the baby’s shoulder became lodged underneath the pelvic bone, a condition that is known as shoulder dystocia.
Reported instances of shoulder dystocia have greatly increased in recent decades, perhaps as a result of a corresponding increase in average birth weight.
Shoulder dystocia can often be dealt with successfully during delivery, but the lawsuit argued that the doctor pulled down on the baby’s head too much, causing an injury to the brachial plexus, a bundle of nerves near the shoulder. The lawsuit claimed that the doctor should have recommended a cesarean section or used a different method that would place less stress upon the baby.
The hospital said that the mother received appropriate treatment and that there were no complications that indicated that a cesarean section was necessary.
The baby was born with a disfigured arm. Now five years old, she has undergone several surgeries and continues to wear a brace on her malformed arm. Doctors have classified the injury as permanent and have said that it will require continued therapy.
Some still argue that high payments in medical malpractice lawsuits drive up the cost of health care, but an examination of the facts shows that this claim is false.
Between 2000 and 2011, health care spending increased by 97 percent, but the value of medical malpractice payments decreased by 12 percent. Research shows that total medical malpractice payments have continued to decrease, that such payments account for a small percentage of health care costs and that most payments are for very serious injuries.
The nonprofit group Public Citizen reviews data on medical malpractice cases each year. In its most recent report, for 2011, the group found that medical malpractice payments on doctors’ behalf had dropped for the eighth consecutive year, and had reached their lowest level since 1991.
In 2013, medical malpractice payments on doctors’ behalf accounted for only 0.12 percent of national health care costs.
According to the National Practitioner Data Bank, 80 percent of 2011 medical malpractice payments compensated victims for serious injuries such as brain damage, quadriplegia, injuries requiring lifelong care and death.
Medical errors are a serious problem with grave consequences. It is estimated that more than 700,000 Medicare patients experience a serious adverse event that is preventable each year. In 80,000 of those cases, the error contributed to the patient’s death. In contrast, only 9,758 medical malpractice payments were made on doctors’ behalf in 2011 — all leading Public Citizen to conclude that most medical malpractice errors do not result in litigation.
The family of Junior Seau, an NFL player who committed suicide in 2012, has objected to the league’s $760 million proposal to settle a lawsuit by thousands of former players over the risk of concussion injuries. Seau’s family said that wrongful death claims should be treated differently from injury claims.
The deal has already been rejected by a federal judge, who felt it did not allocate enough money for such a large group of plaintiffs. Under the terms of the proposed settlement, $5 million would be allocated for each former player with a diagnosis of a brain condition caused by repeated blows to the head during NFL practice and play. However, attorneys for Seau’s family said that only a minimal payment of a few thousand dollars would be available for family members of retired or deceased players.
Seau died in 2012 from a self-inflicted gunshot to the chest. Later studies of his brain confirmed that he suffered from chronic traumatic encephalopathy, or CTE, a brain disease that results from repeated head trauma and that can cause dementia and aggressive behavior.
The lawsuit, filed in federal court in Philadelphia, has 4,500 plaintiffs. Up to 20,000 former players could eventually receive payment.
After the judge’s rejection of the NFL’s settlement offer, experts said that the league would likely have to negotiate a higher settlement. Seau’s family asked the judge to take their concerns into account in deciding on future settlement proposals.
A jury awarded a large verdict to a West Virginia couple whose son suffered birth injuries leading to cerebral palsy.
After a two-week trial, the jury awarded $55 million to the parents, finding St. Luke’s University Hospital and a doctor liable for the injuries.
Cerebral palsy is a lifelong condition that affects muscle control, body movement, posture, reflexes and balance. It can be caused by damage to the brain during birth.
The lawsuit alleged that the baby was not getting enough oxygen during the November 2009 delivery, but the doctor failed to notice. The baby became stuck in the birth canal, and the mother began hemorrhaging. The doctor allegedly used vacuum extraction to dislodge the baby, resulting in more oxygen deprivation. The lawsuit alleged that the doctor should have used a cesarean section.
The parents claimed that their son suffered permanent injuries as a result of the delay in emergency action. At the age of four, the boy continues to suffer from difficulties in physical movement and language development.
Although the jury awarded $55 million, the family is expected to receive less than that, due to an agreement reached prior to the verdict. The details of the agreement have not been disclosed.
The hospital maintains that it provided adequate care.
In Illinois, legislation has been proposed that would limit employees’ ability to receive workers’ compensation for injuries sustained in accidents on the way to work.
State Sen. Kyle McCarter (R, Lebanon) introduced Senate Bill 2622, which would prevent requirements for employers to provide workers’ compensation if a worker was not traveling specifically for work purposes when he or she was injured.
The proposed law states that an injured worker may only receive compensation if the injury “arises out of and in the course of employment” and while the worker is “actively engaged in the duties” of his or her employment.
The legislation would deal with cases such as one recently decided by the Illinois Supreme Court, in which a Springfield pipefitter accepted a temporary job at a Rock Island County power plant. The worker stayed in a motel to avoid the 200 mile commute. On the way to work, the man and a coworker hit an icy patch of road and crashed. The worker was seriously injured.
The Illinois Workers’ Compensation Commission found that the worker should receive compensation, but the state high court ruled that the worker made a personal decision to take the job knowing the length of commute required, and that he was therefore not a traveling employee.
Senate Bill 2622 was introduced before the Supreme Court ruling.
Disciplinary actions hold physicians accountable for medical errors, improper diagnosis and other types of medical malpractice. They allow state medical boards to work with and examine doctors. However, a recent review of data by the Chicago Tribune revealed that the Illinois Department of Financial and Professional Regulation takes a relatively small number of independent disciplinary actions against doctors, choosing instead to rely on other states’ investigations.
The review found that the department took action against fewer than 30 Illinois doctors for improper diagnosis or medical errors. However, the agency disciplined more than 100 physicians after other states’ medical boards found they had provided improper care or engaged in misconduct. Nationally, Illinois presents one of the highest out-of-state investigation reliance rates.
In one case, the Illinois medical board received a letter stating that a doctor had committed a medical error that resulted in a patient’s death. In a deposition, he admitted that he falsified records to cover up the mistake. The letter arrived three years ago, but the agency has taken no apparent disciplinary action against the physician.
Patient advocates said that taking action after another state has done so is important, because it helps prevent an incompetent doctor from simply practicing in another state. However, those cases are also the easiest to pursue, and experts say that an overreliance on such cases may indicate that the medical board is not working on the more difficult investigations.
The bankruptcy trustee for Montreal Maine & Atlantic Railway Ltd said that a recent reorganization plan — filed by families of people who died when one of the company’s trains derailed and exploded — is “not a serious plan.”
Robert J. Keach, the trustee, said that the plan, filed in U.S. Bankruptcy Court in Bangor, Maine on January 29, “will go nowhere” and is “facially non-confirmable,” according to Bloomberg News.
A group of wrongful-death claimants submitted the plan, which would allocate 75 percent of $25 million in insurance to the families of people who died in the July accident in Lac-Megantic, Quebec. Claimants seeking compensation for property damaged in the derailment and subsequent fire would receive the other 25 percent.
Keach said that the plan relies on the assumption that insurance proceeds, a Canadian asset, could be transferred to the United States. An attorney for the official victims’ committee said that proceeds from the Canadian insurance policy would not be turned over to a U.S. court without an agreement between both countries’ courts.
Keach also said the plan would be a bad deal for the majority of claimants. He said the plan was proposed by a “splinter group” not participating in the official victims’ committee, and that it was a tactical move related to their resistance to Keach’s plan to move the wrongful death lawsuits from Illinois to Maine.