Verdicts and Settlements for Clients Injured by Medical Malpractice
Walkup's senior partner, Michael A. Kelly, obtained a $23,200,000 jury verdict on Feb. 9, 2010, in Kandiyohi County, Minnesota, in a case involving cerebral palsy, quadriplegia and cognitive impairment in a 2½-year-old child whose family doctor failed to appreciate the warning signs of fetal distress during her birth in June 2007. As a result, a timely cesarean section was not performed. The child was deprived of oxygen for 28 minutes before an emergency C–section could be completed. Hypoxic ischemic encephalopathy resulted, and the child now has multiple health problems, including a permanent tracheotomy, g–tube, spastic cerebral palsy, cortical impairment and seizures. The jury award included $1.7 million for past health care expenses, $10 million for future health care expenses, $10 million for past and future pain, disability and emotional distress, and $1.5 million for loss of earning capacity. Unlike California's anti–consumer Medical lnjury Compensation Reform Act (MICRA) laws, the governing law of Minnesota (like most states) does not restrict a patient's right to be made whole for harms and injuries caused by health care professionals.
Failure to Recognize Fetal Distress — Neurological Damage — $5 Million Settlement
Walkup attorneys negotiated a cash and annuity settlement with a present cash value in excess of $5 million on behalf of an infant born with severe developmental delay, spastic quadriparesis and permanent neurological injuries after doctors and nursing staff failed to monitor the mother and deliver the baby quickly when fetal heart monitors indicated severe distress. The 36-year–old mother’s pregnancy and delivery seemed to be progressing normally when, eight hours after being admitted to the hospital, she developed a high fever. The doctor on call administered antibiotics for suspected chorioamnionitis (an inflammation of the amniotic membranes) and said he would check back in an hour. Nearly three hours later, the fetal heart rate monitors indicated that the baby’s heart rate had dropped to 85 and 90, and remained there for about 10 minutes, prompting a frightened nurse to contact the doctor. Deceleration of the fetal heart rate is a common effect of chorioamnionitis. The infant was born a half-hour later, by emergent vacuum extraction, with no heart rate, and appearing blue, floppy and apneic. She was resuscitated through chest compressions and intubation. In the days following her birth, the infant exhibited general seizures with tremors in the lower and upper extremities. An MRI performed eight days after her birth revealed that the infant had severe hypoxic ischemic encephalopathy. The child will remain fully dependent for all of her care needs for her entire life. She is not expected to develop beyond the level of a one-month-old infant. Liability was based upon failure to aggressively monitor the mother and fetus post-administration of antibiotics and failure to deliver the baby when infection was first suspected.
Failure to Diagnose Skull Fracture — Wrongful Death — $3.035 Million Jury Verdict
Our wrongful death trial lawyers obtained a jury verdict in the amount of $3,035,000 on behalf of the surviving parents of a 29–year–old single male who died following a missed diagnosis of skull fracture. The decedent, while surfing in the Half Moon Bay area, was struck in the head. He visited a local urgent care center/emergency room where the physician on duty failed to palpate the wound, take an X–ray or suspect a fracture. In fact, the young man had sustained a fracture of his skull with resulting laceration of the middle meningeal artery. He was discharged with a prescription for Vicodin. One and a half hours later, he collapsed at home from mounting intracranial pressure. Emergent neurosurgery at San Francisco General Hospital was unsuccessful in saving his life. The defendant emergency room physician claimed that the decedent acted normally and showed no signs whatsoever of significant head injury or concussion when he presented to the emergency room, and there was no reason to seek an X–ray or explore the depth of the head wound because it had stopped bleeding at the time of the visit. After a three-week trial, Walkup's wrongful death trial team waited as a San Francisco jury deliberated for two and a half days before returning its verdict.
Medical Malpractice MICRA Unfairness — Skull Fracture/Wrongful Death — $3 Million Jury Verdict
The unfairness of MICRA's 30-year-old $250,000 cap on noneconomic damages was underscored recently in a case tried by Michael Kelly and Doris Cheng on behalf of the parents of a patient who died after his head injury went undetected by an emergency room physician. Ethier v. Poindexter, M.D., (S.F. Sup. Ct. CGC–05–437623). Although a unanimous jury awarded $3 million in wrongful death damages for the loss of Charles and Shirley Ethier's 29–year–old son, the trial judge was compelled to immediately reduced the award to $250,000 (an 83 percent reduction of the jury's award) in accordance with MICRA's antiquated limits.
The plaintiffs' son had presented to the defendant emergency room physician with a head laceration after being struck with a surfboard. Ignoring the possibility of a serious head injury, the defendant neglected to order a CT scan or palpate the wound and merely sutured the laceration and discharged the patient with a prescription for Vicodin. Shortly after leaving the care of the defendant, the patient fell unconscious in his living room and was taken to San Francisco General Hospital, where he underwent a CT scan and emergent craniotomy. The decedent suffered a comminuted depressed skull fracture, which lacerated the middle meningeal artery, thereby causing epidural, subdural and intraparenchymal bleeding. As a result of prolonged intracranial pressure, the patient sustained brain death.
The Ethiers filed suit against the emergency room physician for the wrongful death of their son. Knowing that MICRA prevented his liability from exceeding $250,000, the defendant (who had eight prior claims against him) refused to settle the case because his insurance policy covered liability up to $1 million. In essence, MICRA gave him a risk–free trial. (The defendant actually made money sitting in court from the per diem paid by his policy.)
Mike and Doris convincingly argued that had the defendant palpated the wound, he would have discovered a skull fracture. The doctor argued that even if he had correctly diagnosed the patient, there would not have been time to arrange an emergency transport to a level-one trauma center for evaluation, CT scan and surgical evacuation of the expanding hematoma. The jury rejected this argument and awarded Charles and Shirley out-of-pocket expenses and $3 million in general damages for the death of their son.
The Ethiers are just one of many families and individuals who have been victimized by MICRA's unfair limits over the last 30 years. The most recent study conducted by the Rand Institute, examining data from actual medical malpractice trials, concluded that defendants' liability is reduced in almost 50 percent of cases tried in California courts.
For three decades, malpractice insurance companies have misled the electorate into believing that medical malpractice cases are responsible for skyrocketing health care costs and driving qualified doctors out of California. In fact, studies show that less than 1 percent of all health care costs are attributable to legal costs and there is no difference between capped and non-capped states in the ratio of physicians to populations.
It's time California modified its law to protect victims of medical malpractice. There is no justification for telling any parent that if his or her child were struck by a physician driving a car, they would be entitled to full compensation, but if killed through the negligence of a physician in the operating room, they are only entitled to a fraction of what they are owed.
Negligent Spine Surgery — Brain Damage — $2.8 Million Settlement
Our medical negligence team negotiated a settlement having a present cash value of more than $2,800,000 on behalf of a 44–year–old grocery store manager who suffered major brain damage following anterior cervical fusion surgery. Nine hours after the surgery had concluded, our client sustained a massive cardiac arrest and was discovered in a vegetative state by hospital personnel. Our attorneys demonstrated, using experts in the field of hospital administration and nursing, that the attending nurses had negligently failed to timely observe and report signs and symptoms consistent with a post–operative hematoma. Our medical liability team showed that the nurses assigned to the patient’s care were inexperienced and that as his vital signs deteriorated, they failed to bring these ominous changes to the attention of the attending physicians. Under the terms of the settlement, periodic payments were negotiated to provide for our client’s present and future attendant care needs. More than $1 million was paid in a lump sum, from which various liens were satisfied.
Failure to Diagnose Elevated Ocular Pressure — Blindness — $1.1 Million Settlement
Walkup medical malpractice lawyers obtained a mediated settlement in the amount of $1,100,000 on behalf of a 21–year–old woman who lost sight in both eyes over a period of weeks while her primary treating physician and hospital emergency room doctors failed to recognize and treat increased intraocular pressure that ultimately caused optic nerve atrophy. Although her condition should have been treatable, none of her physicians appreciated its significance or cause. The case concluded after expert discovery. The modest amount of the settlement reflects the unfair and unequal treatment of victims of medical negligence in California due to California's 35-year-old MICRA restrictions. Had the woman's injuries occurred as the result of a product failure, an auto accident or wrongdoing other than medical negligence, her general damage award would likely have been in excess of $10 million. Here, because of the strict damage limitation of MICRA, her compensation for a lifetime of blindness (over 60 years) was limited to less than $5,000 per year (maximum damage award in California for pain and suffering in a medical case limited to a total of $250,000 regardless of injury severity).
Failure to Supervise Psychiatric Patient — Fractures, Broken Back — $996,000 Jury Verdict
The Walkup medical malpractice trial team obtained a jury verdict in the amount of $996,000, following a 10-day jury trial, on behalf of a mentally disabled woman who jumped from her second-story window in a psychiatric facility where she was supposed to have been monitored. Our client, who suffered from schizophrenia, jumped from the second floor of the building at approximately 1 a.m. and thereafter went undiscovered lying outside on the ground for more than five hours, becoming progressively hypothermic, until a staff member noticed that she was missing. At trial, the facility claimed the victim had been checked on "throughout the night" and that she probably jumped out the window shortly before she was found, rather than five hours before. The jury rejected the defense argument. As a result of the fall, our client suffered a burst fracture of her thoracic spine, multiple broken ribs and residual disability.
Confidential Settlements
Failure to Diagnose Cervical Cancer — Wrongful Death
Our malpractice attorneys concluded a case on behalf of the two surviving daughters of a 35–year–old woman who died of cervical cancer. Our attorneys proved that both the woman's primary care physician and a laboratory that failed to follow up properly on biopsy slides were responsible for the failure to diagnose and treat cancer in its early stages. Through the testimony of experts in pathology, our attorneys demonstrated that the Pap smears were underreported. Experts in cytology testified that the laboratory should have brought these abnormalities to the attention of the primary care physician. The settlement, which was in a confidential amount, included an initial cash payment and future installment payments to cover the surviving children's educational and other maintenance expenses through age 23.
Failure to Diagnose Aneurysm — Brain Damage
Our malpractice attorneys negotiated a settlement in a confidential amount on behalf of a 46–year–old bank employee who suffered an intracerebral bleed, with resulting brain damage, as the result of an undiagnosed leaking aneurysm. Roughly two months before the catastrophic event, our client had awakened in the night with a persistent headache and sensed that she had lost vision in her right eye. She first consulted the defendant ophthalmologist who incorrectly diagnosed her with "optic neuritis." After making three visits to her regular doctor, without having a correct diagnosis entered, our client was found semi-comatose in her apartment, having sustained a major cerebral bleeding episode. The recovery included the cost of past medical expense and future attendant care. Our attorneys, through the use of forensic economists, also recovered an amount equal to the value of our client's major lost wages. Her general damage recovery was limited by California's artificial malpractice damage "cap" of $250,000.
Failure to Diagnose Pelvic Fracture — Wrongful Death
Walkup medical liability attorneys represented the wife and adult child of a 48–year–old junior high school principal who died of complications from undiagnosed pelvic fractures after a fall. Our attorneys demonstrated that X–rays taken at the time of his initial treatment were misinterpreted and that as a result, the deceased developed pulmonary emboli that ultimately resulted in a cardiac arrest. The defendant hospital and its physicians claimed that the original injuries from the fall were sufficient in and of themselves to produce death, and that the failure to correctly interpret the X–rays was not negligent. The amount of the settlement, confidential in nature, included the maximum available for general damages representing loss of care, comfort, society and love, as well as an amount equal to the present cash value of the decedent's lost future wages, earnings, support and benefits.
Uterine Rupture — Infant Death
Our medical malpractice lawyers resolved a birth injury case, in a confidential amount, on behalf of the parents of a 2–day–old infant who died after his mother's uterus ruptured during labor. The mother was admitted to the hospital with contractions, but was sent home several hours later because the nurses felt she was not progressing. Once home, she began to experience severe abdominal pain. By the time doctors realized that the infant was outside the uterus in the abdominal cavity, an emergency cesarean section was unsuccessful in delivering the baby before it suffered severe compromise. The child died two days later. Our attorneys demonstrated that the mother should never have been sent home from the hospital and that had she been monitored properly, her impending uterine rupture would have been recognized and a timely cesarean section would have been performed. The claim of our clients sought damages for the wrongful death of their daughter as well as the mother's personal injuries.
Failure to Monitor Bedsores — Wrongful Death
Our elder abuse team successfully settled a wrongful death claim on behalf of the son and daughter of a 79–year–old woman who passed away as a result of septic infection caused by undiagnosed and untreated bedsores. The settlement, in a confidential amount, was brought under California's Elder Abuse statutes. It included recovery for the pre-death pain and suffering of the decedent, attorney's fees and other damages to properly compensate the heirs for what their mother had endured. Our attorneys, working with specialists in the field of senior nursing, demonstrated that proper and prudent observation of the decedent's worsening condition would have resulted in a timely diagnosis, hospitalization at an inpatient facility and a cure of her overwhelming infection before it became untreatable and fatal.
Failure to Diagnose Bedsores — Amputation
Our nursing abuse team represented a 69–year–old retired serviceman who experienced amputation of his right leg when his nursing home caregivers failed to notify his physicians of multiple, worsening bedsores. Our client complained to hospital and staff personnel of the problem, but the responsible manager of the facility failed to notify his primary care physician in a prompt manner of his worsening condition. Our attorneys demonstrated that the nursing home's licensed vocational nursing (LVN) staff was improperly trained and ill–equipped to deal with patients manifesting bedsores. The recovery included compensation for all elements of harm permitted by the California Elder Abuse statutory framework.
