Philadelphia Medical Malpractice Lawyer Blog

Published on: October 16, 2007

Podiatrist Not Competent as Expert Against Orthopedic Surgeon

The Pennsylvania Supreme Court recently held that a Podiatrist could not give expert testimony against an Orthopedic Surgeon concerning the proper standard of care in a medical malpractice lawsuit concerning bunion care. Wexler v. Hecht, 928 A.2d 973 (Pa. 2007). The highest court in Pennsylvania found that because podiatrists attend podiatric school and not medical school, the training and licensing of a podiatrist is different from a medical doctor. Consequently, as a matter of law based on the Court’s interpretation of section 512 of the MCARE Act, which limits expert who may testify on the standard of care to those with an “unrestricted physician’s license,” a podiatrist does not possess the required expertise to give expert testimony against an orthopedic surgeaon, who holds a medical degree. This holding demonstrates how the MCARE Act has limited the previous Rules of the Pennsylvania courts, as this ruling apparanently now trumps the much more liberal Pennsylvania Rule of Evidence 702 concerning expert testimony.

The Pennsylvania Supreme Court’s analysis in concluded that there is bright line rule separating physicians and podiatrists. Physicians must either have a medical degree or an osteopathic degree, which is a medically based. Both Medical Doctors (M.D.) and Osteopaths (D.O.) are trained about the entire body and are licensed and boarded by the same/similar private and state organizations. Podiatrists hold only a podiatric degree and their education and training is limited to the feet. Podiatrists are also licensed and tested by a different organization. Consequently, the Court found that Podiatrists did not have the proper expertise to offer standard of care testimony against orthopedic surgeons.

This case did not clarify if the reverse situation would be permissable; that is: may an orthopedic surgeon still testify as to the standard of care against a podiatrist? I believe that because the orthopedist is a medical doctor, the court would still likely permit this type of expert testimony. This case also addressed the retroactive application of the MCARE Act and the court held that the MCARE Act did apply. Fortunately, this issue is not relevant to any cases filed in the future.

Published on: October 15, 2007

Heil Co. Owes $6 Million for Defective Product that Killed Man

by Leon Aussprung

A $7 safety device on a truck’s dump-bed kit made by Heil Co. would have prevented a man’s death, but the company didn’t include it on the product and failed to warn of the dangers of the product despite the fact that the safety device had been in use on similar products for 60 years. These facts led a jury to conclude that the widow of an Ohio man killed by the product should receive $6 Million. The accident occurred when the man accidentally hit a control valve on the outside of his 1978 Ford truck, causing the dump-bed to silently lower and trap him against the frame of the truck within 4 seconds.

Heil Company alleged that the dead man was at fault for the accident because he failed to brace the bed while performing maintenance on the truck. After the jury verdict was received, Heil Co. appealed the case arguing that the evidence in the case didn’t support the verdict. The appeals court rejected the appeal and upheld the verdict, in part because the company waived many of the objections raised in the appeal by not making them at trial.

This case is consistent with many cases involving defective products in that too often a very cheap addition to the product would have prevented serious injury and even death. Moreover, it is frequently learned during the litigation that companies were aware of the risks, but failed to pass that knowledge on to consumers so that they could protect themselves. While time-consuming and expensive, product liability lawsuits can prevent future injuries and deaths.

Published on: October 14, 2007

Dimetapp, PediaCare, Robitussin and Other Infant Cold Medications Discontinued

by Leon Aussprung

Drug manufacturers of infant cold medicines such as Dimetapp, PediaCare, Tylenol, Triaminic and Robitussin have pulled these medications from stores following reported child deaths from overdoses. The manufacturers continue to assert that these medications are safe when used as directed on the packaging, but the American Academy of Pediatrics (“AAP”) disagrees. The AAP has taken the position that over-the-counter cold and cough medicines don’t work in very young children (under the age of 6) and present risks for babies and pre-school age children.

Children’s cold remedies accounted for approximately 8% of over-the-counter cold and cough medicines sold in the United States. Notwithstanding the popularity of these drugs, the Centers of Disease Control Prevention reported that in 2004 and 2005 approximately 1,500 children under the age of 2 experienced complications to include heart problems, convulsions, neurologic complications and trouble breathing, as well as other symptoms. Of these 1,500 children, there were 54 deaths in children who used decongestants and 69 deaths in children who used antihistamines.

The AAP advises parents to stick with remedies such as salt-water nose drops, suctioning infants’ noses of mucus, fluids and rest. Pediatricians point out that coughing is good for the body because it clears out the lungs and low level fevers are actually helpful because they fight infection, so suppressing these symptoms may do more harm than good. It is possible that these medications, or similar ones, will be back on the market with more specific labels about dosing and usage, but until then parents need to prepare themselves to work harder to ease the symptoms experienced by little ones just as cold season begins.

Published on: October 13, 2007

LASIK Eye Surgery Can Cause Permanent Injury/Blindness

by Leon Aussprung

LASIK eye surgery can cause extremely dry eyes, blurry vision and difficulty with night driving, leaving patients with excruciating facial pain, worse vision than before the surgery, and visual distortion (including halos, glare and seeing multiple objects). At the extreme, complications include eye bulging and blindness, especially in patients with thin corneas (which are found in approximately 10% of Americans). These complications can result in the need for goggles that help with eye moisture, as well as expensive eye drops and special contact lenses. Some patients have reported spending as much as $500 per month on treatments for their LASIK complications.

Ideally, doctors and facilities that perform this procedure screen patients for risk factors and ensure that only physicians provide surgical care. Unfortunately, many facilities perform this “private pay” procedure (not covered by insurance) in bulk rather than on carefully-selected patients and some facilities use non-physicians for much of the care received by the patient. Moreover, some surgeons perform the procedure at the referral of optometrists, who are not physicians, but who nonethless perform the risk-factor screening and provide follow-up care for the patient. In some cases, referring optometrists receive a referral fee from the surgeon, decreasing the incentive for screening out patients who may not be good surgical candidates.

Because LASIK involves cutting and reshaping the cornea, some research has suggested that the cornea becomes permanently weakened after the surgery and that the nerves severed during the surgery never recover or take years to recover. Complications from LASIK can occur because of problems with the laser or other equipiment used during the procedure, physician error in screening patients for risk factors or in performing the procedure itself, or from poor treatment by non-physician providers involved in the surgery.

Published on: October 9, 2007

Stevens Johnson Syndrome

by Leon Aussprung

Stevens Johnson Syndrome is the result of an allergic reaction caused by many different drugs and medications. Not all of these medications require a prescription and many can be purchased over-the-counter. It is estimated that Stevens Johnson Syndrome causes over 140,000 deaths every year in the United States and causes complications for two million people. Some of the most common medications causing Stevens Johnson Syndrome include antibiotics (especially sulfa based drugs), pain medications (such as Bextra and Celebrex), and seizure medications. An excellent resourse for individuals concernned about this syndrome is the Stevens Johnson Syndrome Foundation.

Stevens Johnson Syndrome is a potentially life-threatening reaction that causes blistering of the skin and severe burning. The skiin will eventually slough off. Stevens Johnson Syndrome frequently causes blindness and around 30% of affected individuals die from the illness. The best treatment always entails early recognition and diagnosis and fast medical intervention. Some of the early symptoms of Stevens Johnson Syndrome include:

Flu-like symptoms with high fever Blistering or burning of mucous membranes, such as the lips, mouth, eyes and ears skin rashes, red spotches and skin blisters skin sloughing history of a prior drug reaction

Published on: October 8, 2007

$75 Million Paid for Defective Defibrillators by Medtronic

by Leon Aussprung

Medtronic, the nation’s largest electronic heart device maker, has agreed to pay $75 million in settlement of 2,000 claims that it hid defects in its defibrillators. A defibrillator is a medical device that is surgically implanted in the chest and, after sensing an abnormal heart rhythm, will send an electrical jolt to correct the abnormal heart beats, which can be life threatening. Defects in the medical device, including battery defects and other glitches, cause the defibrillator to fail and can result in death. There remains time for potential claimants to recover under this settlement and if you have an implanted defibrillatror you should immediately contact an attorney to protect your rights.

Approximately one million Americans have heart conditions that place them at risk for fatal heart rhythms and sudden death. Several studies have concluded that using an implantable defibrillator can reduce the chance of sudden death by around 7%. Medtronic has already recalled around 87,000 defibrilators and surgery was done to replace approximately 19,000 more. There are claims that Medtronic attempted to hide the defects in its product, which it became aware of as early as September 2003. Another company, Guidant, has also recalled over 100,000 defibrillators and documents indicate that Guidant also knew of the problems in 2002. Guidant previously settled its claims for $195 million.

If you know someone who died while they had a implantable defibrillator in place, it is critical that you immediely contact an attorney because your time to file a lawsuit is very limited. Additionally, if you currently have an implanted Medtronic defibrillator, you should contact an attorney to learn if you are eligible to participate in this recent settlement.

Published on: October 7, 2007

Philadelphia Juries Must have 12 Members

by Leon Aussprung

Pennsylvania Superior Court recently overruled a Philadelphia judge and held that it was improper to allow a case to proceed with only 8 jurors. The right to a trial by jury is one of the most fundamental rights of our legal system. The requirement to have 12 members on a jury is important for several reasons. First, in Pennsylvania civil trials, a verdict must be rendered by the agreement of 5 out of every 6 jurors. That means that when there are 12 jurors, it only takes the agreement of 10 jurors to reach a verdict. When only 8 jurors deliberate, it requires 7 of them to agree, which is a higher percentage. Consequently, it is generally to a plaintiff’s advantage to have 12 jurors. Second, a larger jury allows for a broader cross-section of people and helps to render a more fair and balanced verdict.

In the case of Gianni v. Phillips, at a pre-trial conference, a Philadelphia county judge asked if the parties would agree to allowing the case to proceed with only 8 jurors. Although the defendants agreed to having only 8 jurors, the plaintiff objected. Nevertheless, the Judge ordered that the case proceed to trial with only 8 jurors and a verdict was eventually rendered for the defendants. The plaintiff then appealed the ruling to Pennsylvania Superior Court, which held that permitting the case to proceed with only 8 jurors over the objection of any party was reversible legal error. Consequently, the case has been sent back to the Philadelphia County Court of Common Please for a new trial.

This case evidences how trial attorneys must fight for the rights of their clients even after a verdict is rendered. As an experienced trial attorney, I will vigoously represent you in your case. Although no one can ever guarantee a specific outcome and even judges commit error, without an experienced and capable attornely, a client can easily be overwhelmed by the judicial system. I work to protect all the rights of plaintiffs and to ensure that they recover everything to which they are entitled.

Published on: October 6, 2007

Holland-Glen Nursing Home is Billing for Substandard and Worthless Care

by Leon Aussprung

The Holland-Glen Nursing Home in Hatboro, Pennsylvania faces serious charges filed by the United States Attorney’s Office for providing substandard and worthless care, which defrauded the Pennsylvania Medicaid and federal Medicare progarms. The civil complaint filed by the federal government alleges that the facility was operating without a proper skilled-nursing license and provided care that was below the standard of care in several respects, including failing to respond to respiratory alarms, improper bedsore treatment and improper medication administration. Several specific incidents were also mentioned, including the death of a 10 month old infant with a heart condition after receiving improper doses of two different medications. Also, the nursing home staff failed to respond on many occassions to pulse oximeter alarms (which measure the amount of oxygen in the blood) and one patient was found unresponsive because the monitor was attached improperly.

Patrick Meehan, the U.S. Attorney in Philadelphia who filed the lawsuit, is permitting the nursing home to continue its operations during the litigation of the case. The Holland-Glen Nursing Home provides specialized care to approximately 30 children and young adults, who are ventilator-dependant or respiratory impaired. Apparently, the nursing home had a license to operate only as a community group home for the mentally retarded, but when this program ended in 2003 and the facility began providing skilled nursing care, no skilled-nursing license was ever obtained. Meehan also stated that this nursing home has failed to comply with federal and state regulations in the past.

Improper and substandard Nursing Home care is a frequent source of concern that can result in a medical malpractice case. Unfortunately, we too often hear in the news about elderly patients who are neglected, abused and even beaten by nursing home staff. As at the Holland-Glen Nursing Home, bedsores are common and they can progress into serious infections such as osteomyelitis (bone infection) and can even result in death. Nursing Homes have an obligation to provide a competent and proper level of care for all their patients, including nutrition and medical monitoring. As this case demonstrates, the same issues and concerns are present in the chronic care of infants and children as are present in caring for the elderly.

Published on: October 4, 2007

Defective Play Yard Kills Baby – Leads to Recall

by Leon Aussprung

A defective Sesame Beginnings Travel Play Yard caused the death of a 10 month old boy, leading manufacturer Kolcraft Enterprises, Inc. to recall more than 400,000 playpens (often called a “pack and play” by modern parents). Each year, dangerous products cause injury and death to hundreds of thousands of Americans. For instance, in 2005, toys alone caused injury to more than 200,000 children and led to the death of 20 children. The Consumer Product Safety Commission is a government agency that monitors dangerous products and recalls products when necessary. Unfortunately, by the time the Commission is aware of the dangerousness of a product and issues a recall, the product has already caused injury or death to one or more people.

For instance, the Kolcraft playpens were recalled after a 10 month old baby died from being strangled by a strap that hangs from a changing table that fits on top of the play yard. In this instance, the recall applies not only to the Sesame Beginnings model in which the baby died, but to 12 other playpen models sold in the United States between January 2001 and September, 2007 at a cost of $50 – $130. One of the recalled models, the Contours 3-in-1 Play Yard, poses a risk of suffocation in that a raised rocking cradel in the device can trap a baby if the cradle rolls over.

About 2500 products are recalled each year. If you want to receive warnings about products and recall notices, you can subscribe to receive emails from the Commission when a recall is placed on a product. In my opinion, one of the best features of the subscription service is that you can specify what types of product recalls you want to be notified about. I, for instance, only receive recalls that involve infant and children’s products, but there are about a half-dozen categories from which you can choose.

Published on: October 1, 2007

Hospital Infections and Surgical Infections Cause Serious Injury and Death

by Leon Aussprung

Infections ocurring during a hospitalization kill 99,000 people every year, according to data from the Centers for Disease Control and Prevention. Even more dramatically, these same statistics reveal that each year over 1.7 million people in the U.S. develop an infection as a complication of their hospitalization. Obviously, these infections, which can include staphylococcus (“staph”), often leave a patient far worse off after a hospitalization or surgery than they were before. These statistics show that in cases where a patient dies or is paralyzed from an infection following surgery (some types of infections can result in abscesses that can impinge nerves) or requires surgery or other lengthy treatment, it is not unreasonable to have an experienced medical malpratice attorney review the the medical records to determine if the hospital used the proper antibiotcs and adhered to infection-control measures.

Infection cases are not necessarily easy to prove. In surgical cases alone there are three widely-accepted infection-control measures that need to be evaluated: (1) were preventative antibiotics given in the hour before surgery; (2) was the right antibiotic chosen; and (3) when was the antibiotic stopped after surgery. Infection rates are lower in patients who receive the correct antibiotic for their situation during the hour prior to surgery. However, if the antibiotic is continued more than 24 hours after surgery, the patient can develop bacteria that is resistant to antibiotics, which means that if the patient were to develop an infection, it would be more dangerous than if the patient had never recieved the antibiotics.

If you are reading this and are getting ready to be hospitalized or have a surgery, you are probably wondering how you can be sure your hospital takes the steps necessary to reduce infections. I suggest looking at the hospital comparison website of The Centers for Medicare and Medicaid Services (CMS), which is a government agency that, among other fuctions, tracks infections at hospitals across the country. The CMS website allows the public to see safety data for hospitals, to include information on infection prevention measures. For instance, by using this website, you can learn how many Philadelphia hospitals, such as Albert Einstein Medical Center, Hahnemann University Hospital, Hospital of University of Pennsylvania (“HUP”), Temple University Hospital and Thomas Jefferson University Hospital, performed in 2006 relative to the state and national averages. In general, these 5 hospitals did well when compared to the national and state averages in the three infection-control measures. I would encourage anyone who is going to have surgery (especially an elective procedure where you have the time to conduct research on the facility you want to operate on you) to look at the data on infection control measures. Some hospitals nationwide fall far below the national average and given that infections can be fatal, these statistics really can be a life-saver.