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Archive for October, 2012
Ohio Jury Renders Negligence Verdict On Different Basis Than What Lawyers Argued – Verdict Rightfully Upheld
Monday, October 29th, 2012
A medical negligence case in Ohio resulted in a verdict for an injured young boy against a doctor. What was surprising was that neither side argued the basis of the jury’s verdict. I know both lawyers well and they are super lawyers. But sometimes the jury sees things differently and makes their decision based on facts that neither attorney argued. As long as there is evidence to support the jury’s theory of the case then the verdict should stand.
The facts of the case are critically important . So read them carefully.
On March 22, 2002, Kyle Smith, who was then nine years old, was playing a game with two other children at the home of a family friend. The children were holding hands and spinning around to see who would fall first.Kyle fell and hit the left side of his head against a coffee table. Jesse Smith was in the next room and heard Kyle hit the coffee table so hard that he could hear the glass in the table rattle. Smith took Kyle home and told Longbottom what had happened. After Kyle vomited and began to experience jaw pain, his parents took him to the emergency room at Mercy Hospital Clermont.
While they were waiting to see a physician, an emergency room nurse, Diane Kruse, R.N., gave Kyle’s parents a pamphlet on head injury that stated any head injury should be considered serious, irrespective of whether the person was rendered unconscious thereby, and that it was most important that the injured person be watched closely for the first 24 hours.
The pamphlet stated that a responsible person must stay in the room with the patient and watch for a list of symptoms, including whether the patient is mentally confused, cannot be awakened from sleep, is unusually drowsy or vomits persistently, or the patient’s pupils are of unequal size. The pamphlet further stated that if the patient cannot be awakened, then the person watching the patient was to call 911 and have the patient returned to the emergency room.
Nurse Kruse later testified that it was her usual practice to explain the pamphlet to the parents of a child who suffered a head injury but to defer to the physician the final determination as to whether the instructions in the pamphlet were indicated for any given patient.
Kyle was seen by Dr. Huber, who performed a neurological exam on Kyle and found the results to be normal. He sutured the wound on Kyle’s ear, gave him some medicine to prevent infection, and discharged him. He chose not to order a CT scan for Kyle because he did not believe one was necessary. Kyle’s parents later testified that Dr. Huber told them that they did not need to worry about the instructions in the head injury pamphlet because Kyle’s head injury was “not typical” and that they should just let him “sleep it off.”
Dr. Huber disputed this, testifying that his standard practice was to tell the parents of patients like Kyle to follow the instructions in the head injury pamphlet and that he had done so on this occasion.
Kyle and his parents returned home from the emergency room sometime around midnight. Kyle threw up just a little bit, gagged a few times, and had the dry heaves. Longbottom made a bed for Kyle on the couch so that she could sleep next to him. Kyle went to sleep around 12:20 a.m. Longbottom heard Kyle talking in his sleep at about 2:00 a.m. and then fell asleep herself around 2:00 a.m. or 2:30 a.m. Around 5:00 a.m., Longbottom awoke and noticed that Kyle had vomited, and that he was choking and gasping for air. Longbottom screamed for Smith, who called 911. Just before the police and ambulance arrived, Smith told the 911 dispatcher that when he and Longbottom had asked Dr. Huber at the emergency room if they should wake Kyle every two hours, Dr. Huber told them “no, it won’t be a problem.”
Kyle was air-cared to Cincinnati Children’s Hospital. Upon his arrival, he was found to be near death. A CT scan of his head revealed a massive epidural hematoma causing a midline shift of his brain and brain herniation. Dr. Kerry Crone performed emergency surgery on Kyle to remove the hematoma. Dr. Crone told Kyle’s parents that he was not sure if Kyle would live. After spending several days in the hospital’s ICU, Kyle survived. He then spent several weeks in the hospital relearning such tasks as swallowing, eating, communicating and walking. As a result of the incident, Kyle sustained permanent injury to his brain and now walks with an altered gait.
The matter was tried to a jury over nine days in 2010. Kyle and his parents argued that Dr. Huber was negligent in failing to order a CT scan for Kyle when his parents brought him to the emergency room at Mercy Hospital and that this failure proximately caused Kyle’s injuries. Both sides presented expert testimony in support of their respective positions on this issue.
Another issue raised at trial was whether Dr. Huber advised Kyle’s parents to follow the instructions in the head injury pamphlet, with Kyle’s parents and Dr. Huber providing conflicting testimony on the matter as set forth above. Dr. Huber acknowledged during his testimony that if he actually did tell Kyle’s parents that they did not need to follow the instructions in the head injury pamphlet—an assertion that Dr. Huber denied—then such advice would have fallen below the standard of care.
The jury returned a verdict in favor of Kyle and his parents for $2,412,899 after finding that Dr. Huber had been negligent in the care and treatment of Kyle and that Dr. Huber’s negligence directly and proximately caused Kyle’s injuries. In response to an interrogatory asking them to state in what respects Dr. Huber was negligent, the jury answered, “Based on the evidence, we believe, Dr. Gary S. Huber did not instruct the parents about the possibility of significant head injury or how to observe and monitor Kyle for such injuries.” (Read full case)
The Real Defense Here Is The Doctor Blew It But You Can Not Prove It Made a Difference
A close reading of the case discloses the classical defense that, ” even if I was negligent you did not prove it made any difference in the outcome”. In legal parlance you did not show my conduct was a proximate cause. The Court reviewed the evidence to see if proper instructions on monitoring the child would have caused the parents to bring the child back to the hospital due to worsening symptoms in time for surgery that would have prevented the brain herniation.
Even though no expert directly stated that it would have made a difference, the parents were able to show underlying facts that lay people could understand that tended to make it more likely than not, that the parents would have realized the child was worsening and brought him back to the hospital in time for the doctor to do the surgery. Certainly the family should be aided by the presumption in failure to warn cases that had a proper warning been given it would have been followed. ftp://www.ca6.uscourts.gov/opinions.htm/00a0292p-06.htm
But Was The Time Frame a Problem
He was discharged from the hospital at 10:40. At midnight when the parents got him home the boy threw up a little , gagged a few times and had the dry heaves. If they had been instructed that these were symptoms of progression and to get him back to the hospital he could have been back there by 1:am and surgery commenced. But instead the parents fell asleep and did not attempt to wake him every two hours. So when mother awoke at 5 am she saw her child had vomited was gasping for air and was in trouble so she got the child air carried back to the hospital for surgery.
The surgeon said it was likely that the herniation occurred after the child left the hospital the first time and before they got him back to the hospital , at least prior to the time he was air carried back to the hospital. So there was a window of 5 hours when the herniation occurred. Given the fact that the symptoms of severe brain injury are progressive and that Kyle was responding at 12 am and the mother was still up at 2am and nothing further untoward happened one could infer the herniation occurred sometime after 2 am.
If the parents had not been lulled to sleep by the inadequate discharge instruction they could have had the child back at the hospital by 1am, surgey performed and the herniation prevented. Since the experts testified to underlying facts and opinions the jury should be at liberty to infer from their common experience that this injury would likely been prevented.
I mean in a criminal case they find people guilty all the time without a body or witness to the accident or expert that says the defendant was the killer. Why should a civil case be any different especially where the burden of proof is substantially less.
For another take on this case (that Mike Lyon defense attorney probably loves) check out the blog post by esteemed Professor and trial lawyer Ron Miller. http://www.marylandinjurylawyerblog.com/2012/10/can_a_jury_make_up_their_own_t.html
Oh by the way Professor, can you comment on if a CT scan had been given initially at the hospital would it have shown enough to warrant admission and observation and timely surgery? Please leave it on my Google Plus Profile
By Anthony Castelli Attorney
8170 corporate Park Drive
Cijncinnati, ohio 45242
Wednesday, October 17th, 2012
The meningitis toll now has risen to 9 in the State of Ohio according to the Ohio Department of Health. This up from 7 a mere 24 hours ago . Warren County, Ohio has reported their first person with fungal meningitis. Hamilton county had previously reported one person with the disease as a result of the tainted steroid shots compounded by the New England Compounding Center .
Ohio Menigitis Outbreak by the Numbers and Counties
Here is the current toll in Ohio as of 10/17/2102 5:30 PM EST
Crawford County a 40 year old female
Warren county a 52 year old Male
Hamilton County a 65 year old male
Morrow County 45 year old male, and females age 47, 50, 55, 52, 62
All of these meningitis cases are fungal and linked to the tainted batches from the NECC.
In Ohio there were four facilities that purchased the batch of steroid for primarily epidural inection .
The Four Ohio Facilities That Gave The Steroid Injections With Fungus
Here are the facilities in Ohio that have reported having the contaminated steroid:
Marion Pain Clinic
BKC Pain Specialists in Marion
Cincinnati Pain Management Center
Ortho-Spine Rehab Center in Dublin
More Problems with Products From NECC
Unfortunately there have been new reports of fungal meningitis infections from other products made by NECC. A cardioplegic solution has been implicated as well as another type of steroid used for back injections.
Local offices that received one or more of those medications are:
The Christ Hospital Spine Surgery Center
Cincinnati Eye Institute
Cincinnati Pain Management, Cornell Road
Greater Cincinnati Pain Management, Hunt Road
Medical Weight Management Center
Middletown Surgery Center, Franklin
Physicians Healthsource Inc.
Professional Radiology, Blue Ash
Western Hills Interventional Pain
SW Ohio ASC, Middletown
Anthony Castelli Attorney in Cincinnati, Ohio is following the meningitis outbreak closely. As a personal injury lawyer he has had many back injury clients that have received epidural steroid injections. He has discussed this with the Hamilton County Health Department as well as with a Doctor at University Hospital infectious disease clinic. Anthony is accepting clients injured by the tainted steroid from NECC. For your free case consultation with Anthony please call 513-621-2345 or 1-800-447-6549
Tuesday, October 16th, 2012
As a Cincinnati personal injury lawyer reviewing meningitis outbreak cases for legal redress there are certain questions I have for people that have received the tainted drug. There are also questions I have for the medical community. And then there are critical things to know about this outbreak.
5 Critical Facts About Fungal Meningitis
1. This disease can cause stroke and death.
2. The quicker it is diagnosed and treated the better your chances of recovery.
3. The Cincinnati Pain Management Center has been identified as 1 of four facilities in Ohio having received the tainted drug from NECC.
4.The Cincinnati Pain Management Center has injected over 200 patients with the drug.
5. You should get to a doctor for evaluation if you have been told you received a tainted dose or if you think you got a tainted dose.
Who is the Best Facility to Treat Meningitis
I called the Hamilton County Health Department and asked Dr Camille Jones who is the best facility in this area to treat meningitis. She would not refer me to anyone specific other than to say an infectious disease doctor.
In my research I noted the the University Hospital has an infectious disease center. I called the Center and asked to speak to Dr. Pampush Kaul director of the infectious disease center to see if she could shed some light on what someone should do that has been diagnosed with infectious fungal meningitis or has been given a shot containing the tainted steroid from the NECC. Hopefully she will return my call.
If you have been infected or given the shot I know this must be terrifying. And that you are probably looking for the best medical help possible. The CDC guidance is somewhat general. You would think in affected areas they would have some coordination of where you would go and who you would see medically that can help you and also help add to the fund of knowledge that just does not seem to be out there.
Anthony Castelli Attorney in Cincinnati is reviewing is reviewing cases for damage claims and lawsuit of fungal meningitis victims. At present his criteria is:
Steroid shot on or after May 21, 2012 through October 5th, 2012 from a named purchaser of the tainted steroid.
The individual was told by a government agency or medical personal that gave them the shot that they received a tainted dose.
You can call Anthony Castelli at 513-621-2345 or 1-800-447-6549 for a free case consultation.
Resource: CDC patient guidance
Sunday, October 14th, 2012
The Cincinnati Pain Management Consultants in Ohio on Cornell Road have been implicated by the Center for Disease control as having injected the tainted steroid batches compounded by the NECC . The first article on the subject incorrectly had stated this terribly misleading incorrect headline:
Local clinic got meningitis-linked steroids
But unlikely local patients received doses.
See for yourself at this link http://news.cincinnati.com/article/20121005/NEWS/310050126/Local-clinic-got-meningitis-linked-steroids That’s from the article atributed to Janet Morse of Cincinnati.com . There has been no retraction by Janet Morse or cincinnati.com that I saw. Maybe I missed it
In fact, Reports From CDC and Hamilton County Health Department confirm Cincinnati Pain Management injected tainted Steroid. This is what Bill Price reported of wcpo.com:
“Hamilton County Public Health officials confirmed the Tri-State victim received an injection at Cincinnati Pain Management in Sycamore Township. He is currently receiving treatment at a local hospital, but no information on his condition has been released.
Over 200 patients at the Cincinnati Pain Management clinic have been contacted by Hamilton County Public Health. So far, the Springfield Township man in the only person in Hamilton County to have developed a confirmed case of fungal meningitis.”
In addition, CDC and state health departments have released the names of approximately 75 healthcare facilities in 23 states that have received contaminated product.” One was the Cincinnati Pain Management Center.
Who is Cincinnati Pain Management Center
They do have a web presence http://cincypain.com/ If you search this site there you see this in one link:
They also have another link on their site where these four doctors along with others apparently have a separate anethesia practice. These four doctors listed above are anesthesiologists and the only doctors listed on the Cincinnati Pain management center web site. My initial questions for them is;
Was Dr Chandoke misquoted, misinformed or did he make the statement as reported.
Why did they use NECC as a source of the steroid?
What checks did they go through to see that the steroid was safely prepared?
How much did an injection cost?
Did they prepare a prescription and purchase the steroid per patient or in bulk?
Were their any intermediaries involved?
Have you been able to reach all of the patients injected?
Should I get a Lawyer’s Help and How Can I Afford It
Most if not all lawyers that are investigating these case will take them on a contingency fee. and they will advance expenses of litigation. The first lawsuit against NECC has already been filed. Don’t you think NECC , and the whole chain of distibution have lawyered up. If you received an injection of steroids made by NECC since May 21 by Cincinnati Pain Management you may be at serious.risk.
Anthony Castelli Attorney in Cincinnati would be honored to speak with those of you concerned if you have contracted meningitis or want to know if you have a case and should be compensated. Call 513-621-2345 or 1-800-447-6549 to get your questions answered at a free consultation directly with Anthony.
Menningitis Outbreak – What We Have Is a National Public Health Emergency Without a Federal Declaration
Sunday, October 14th, 2012
The National Disaster Medical System Federal Partners Memorandum of Agreement defines a public health emergency as “an emergency need for health care [medical] services to respond to a disaster, significant outbreak of an infectious disease, bio terrorist attack or other significant or catastrophic event. For purposes of NDMS activation, a public health emergency may include but is not limited to, public health emergencies declared by the Secretary of HHS [Health and Human Services] under 42 U.S.C. 247d, or a declaration of a major disaster or emergency under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act), 42 U.S.C. 5121-5206).”
The Act has provisions for infectious diseases that have the potential to threaten national security by incapacitating public employees, the military, etc. It does not have a provision for multi-state iatrogenic (man made) non infectious events such as the fungal meningitis outbreak. While “covered events” such as an outbreak of swine flu trip the coordination of specific public responses, “noncovered events” such as this outbreak of fungal meningitis rely on individual states to determine their own response systems. The risks associated with the event are transferred to the individual, affording them little or no protection beyond existing regulation.
Where tracking has occurred, an effort has been made to track from the clinic level to the consumer wherever they may be located. Consumers who reside in other states have been directed to their resident state departments of public health for information. If the state has not been notified that clinics in their jurisdiction received contaminated materials, they have not stood up a statewide response. Consumers in the opportunity threat zone cannot find their way to adequate information within their functional treatment zone. That’s a problem. It appears that at this time, the best way to find information is through the department of public health for the state in which you received treatment.
Because a multistate coordinated response has not been put into place, we are observing a host of predictable problems that increase the difficulty for individual affected consumers:
Barriers to recall at the physician practice level – Consumers are reporting that medical practitioners did not track the information necessary for an effective recall. Medical records do not reflect the necessary information about dosage, product, and lot code. Dosage vials may have been used across multiple consumers and traceability is non existent. Phyisician procurement systems lack identifying information, product specifications are missing, ingredient declarations are absent, lot tracking numbers are not codified into inventory management. Consumer records may be incorrect or incomplete. In some cases, consumers received contaminated injections after the national recall was issued on September 25, leading providers to conclude incorrectly that injections issued after that date are not covered by event procedures.
Barriers to care – Because rimary care is separated from pain management and emergency response, another layer of complexity is added to the process. Local hospitals are responding inconsistently to individuals who present with symptoms. In some cases, physicians are refusing to treat due to fear of personal litigation. It may be difficult for individuals to resolve the payor responsibility issues, particularly where the originating treatment arises from a workman’s compensation injury but the person is affected by a secondary injury due to exposure to contaminated materials. Treating to the limits of personal insurance plans promotes wide variation in treatment response. Where diagnostic procedures require prior authorization or the fungal medications are not approved for payment, those costs will be passed on to the consumer. This creates immediate access to care issues
In some states, physician practices routinely charge patients for copies of their records and may refuse to release health records without a hefty fee. While many of use maintain emergency contacts, this is not the same as a designated care partner who can act on our behalf when we are incapacitated. Someone who is acknowledged with the right to become actively involved in treatment decisions must be sorted out in the middle of the crisis.
Evaluate this in terms of who is affected by the outbreak
Most of the affected are already affected by disabling levels of chronic pain which already limits personal resources for response. While some of their pain events may have originated in a work place accident, for many, a long standing battle with chronic pain is reflected in their histories. Already disadvantaged, this man made emergency will result in adding insult to injury on many levels. It is important to understand this event in terms of the system in which it has occurred and the layers of failure that resulted in personal injury on a wide scale.
This article was written by an citizen health care advocate Terri Lewis. She is not an attorney. With so many lawyers out there seeking fungal meningitis cases sometimes critical issue fly under the radar and points of view that demand systematic changes are missed.
Terri is a Doctoral Candidate in Rehabilitation Counseling and Administration at SIU-C, a trained Red Cross responder, a researcher, and a subject matter expert in issues that result in health care failure for persons with chronic pain that originates with spinal chord injury. She has extensive experience in community health care integration, public policy and ethics. Terri collaborates with worldwide consumer communities of care and research communities of practice.
Anthony Castelli Attorney is focusing on helping victims of this fungal meningitis outbreak and long term preventatitve measures. Anthonyis investigating his belief that there may be many negligent parties as this crisis is deeper and wider than just NECC.
Saturday, October 13th, 2012
Four facilities in Ohio have been identifed by the CDC as having purchased and used the tainted steroid from the NECC. However news reports are seemingly contradictory whether the Cincinnati Pain Managment Center on Cornell road in Cincinnati, Ohio used the steroid.
A press release issued by the Ohio department of Health stated in pertinent part:
After the federal Centers for Disease Control and Prevention (CDC) notified ODH that tainted medication from the Mass.
drug maker went to four Ohio healthcare facilities, state health officials have worked closely with
the clinics, local health officials and the CDC to contact patients who may have received tainted medicine.
The four clinics are Marion Pain Clinic and BKC Pain Specialists in Marion, Cincinnati Pain Management and Ortho-Spine Rehab Center in Dublin.
Cincinnati.com reported with respect to Ohio cases the following:
“Mike Samet, spokesman for Hamilton County Public Health, said his agency helped health departments in surrounding counties locate people who could possibly have been exposed to tainted medicine at Cincinnati Pain Management Consultants of Sycamore Township. That’s the region’s only facility identified as a recipient of shipments from New England Compounding Center, a Massachusetts company that recalled its products. A rare type of meningitis was found in people who received epidural injections of the company’s steroid medication. Federal health officials suspect the medication was tainted with fungus, but they say the original source of contamination had not been found.
As of Monday, 105 people in nine states were diagnosed with the non-contagious brain infection; eight have died. Nationwide, about 13,000 patients may have been exposed to batches of preservative-free methylprednisolone acetate that are suspected of being linked to the outbreak, the U.S. Centers for Disease Control said. That medication was distributed to about 75 facilities in 23 states. The list includes Ohio and Indiana but excludes Kentucky.
Locally, health officials identified 200 Cincinnati Pain Management patients who may have been at risk; as of Monday, officials had questioned 193 of them about possible symptoms of meningitis. They made telephone calls and even went door-to-door, Samet said, sometimes enlisting help from police and ambulance crews to find people who needed to be alerted.
Officials referred 56 patients to emergency rooms, mostly Bethesda North, for precautionary examinations. Only one person was strongly suspected of having meningitis, but that person’s tests came back negative, Samet said, adding, “There’s one case confirmed in the entire state of Ohio, and it’s not here.” Officials wouldn’t disclose the county of residence for that 65-year-old man, saying they wanted to protect his identity.
On Friday (Oct 5), a doctor at the Sycamore Township clinic said it was doubtful any patients were injected with doses from New England Compounding Center because the clinic had stopped using that center’s products even before the meningitis concerns arose.”
However further reports are contrary to the statement attributed to Cincinnati Pain Management
Further reporting on October 9th by WCPO.com indicated that:
“An office manager with Cincinnati Pain Management said they are no longer using the potentially contaminated batch of medication. They are also continually following up with patients who were given the injection to make sure they are doing well. That batch of medication came from the New England Compounding Center, Inc.”
On October 11th Wcpo news person Bill Price reported that:
The Ohio Department of Health has linked two more cases of meningitis to tainted steroid injections distributed by the New England Compounding Center, including one case in Hamilton County.
The total number of cases in Ohio is now three, which includes an unnamed 65-year-old man from Springfield Township in Hamilton County. A 39-year-old woman from Morrow County and a 40-year-old woman from Crawford County have also contracted the disease.
Each of the patients is reported to have contracted fungal meningitis after receiving steroid shots for back and joint pain.
Hamilton County Public Health officials confirmed the Tri-State victim received an injection at Cincinnati Pain Management in Sycamore Township. He is currently receiving treatment at a local hospital, but no information on his condition has been released.
The Associated Press reported on October 12th that:
“One case was recently reported in the Tri-State. A Springfield Township man is currently being treated for fungal meningitis after receiving a tainted injection from Cincinnati Pain Management. Officials have not released any other details on his condition at this time.”
Although the Cincinnati Pain Management initially reportedly denied using the drug, it is now clear from the sources quoted that Cincinnati Pain Management had in fact used the drug which has allegedly infected a 65 year old man in Hamilton county. This initial denail is concerning in light of the further facts reported.
Due to the long incubation period just because one injected with the tainted steroid has not felt symptoms does not mean that you will not be getting this symptoms. Even if you have not contracted meningitis but received the tainted steroid and had a lumbar punture that confirmed you were disease free you may still have a case against the New England Compounding Center or other entities that may be responsible.
By Anthony Castelli Attorney personal injury attorney. Anthony is closely following the developments in the fungal meningitis health care crisis. He has spoken with attorneys in Tennessee and Minnesota and Indiana regarding the investigation ongoing. You can call 513-621-2345 or 1-800-447-6549 to see if you meet the criteria for the meningitis cases Anthony is willing to review and accept. The consultation is free and you can sit down directly with Anthony to discuss your options.
His office located at 8170 Corporate Park Drive is less than a mile from the Cincinnati pain management facility.
For more information on the fungal mennigitis outbreak go to Anthony Castelli’s web site devoted solely to the crisis.
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