Archive for March, 2010

Georgia Supreme Court Overturns Malpractice Cap

Monday, March 22nd, 2010

In a unanimous decision, the Georgia Supreme Court has just declared non-economic damages caps unconstitutional in medical malpractice cases.  CBSAtlanta.com reports the following:  

Monday, the Georgia Supreme Court ruled that a controversial law capping the amount of money an injured patient could recover from a negligent medical provider is unconstitutional. The 7-0 decision was written by Justice Hunstein. Senate Bill 3, enacted in 2005, stated that a victim of medical malpractice could be limited in the amount of damages they can receive from a jury verdict, even if the harm caused was catastrophic in nature.

Nestlehutt v. Atlanta Oculoplastic Surgery, P.C, from Fulton County State Court, highlighted how caps on damages fundamentally restrict the constitutional rights of those who have been harmed by a healthcare provider. The malpractice case was brought by plaintiff Betty Nestlehutt, who is represented by attorneys Adam Malone and Frank Ilardi.

This case is one of horrific physical injuries and pain and suffering.  The tragic story of the victim, Betty Nestelhutt, is recounted in the article:

Betty Nestlehutt and her husband of more than 50 years worked together in their real estate business. Betty handled most of the client interaction for the firm, and she eventually noticed that many potential customers were going to younger agents. Concerned with the bags under her eyes and lines around her mouth, Betty Nestlehutt eventually decided to schedule a consultation with Dr. Harvey P. Cole of Atlanta Oculoplastic Surgery, P.C. Even though Betty was 71 at the time, Dr. Cole recommended a full facelift as well as a battery of other surgical procedures.

The combination of procedures was risky for someone of Betty’s age. The surgery severely impacted the blood flow to her face. After several weeks, the skin on Betty Nestlehutt’s face began to die and fall off.

“Betty Nestlehutt was the face of her real estate business,” Malone said. “Her face was so horrifically disfigured that she was no longer able to even leave her house. The pain she experienced over a long period of time is difficult to comprehend. Photographs of her disfigurement are too gruesome for public distribution. The damage is permanent.”

The case outcome has also just been announced on the website for GeorgiaWatch, a consumer advocacy organization:

The case was heard in Fulton State Court before a jury of 12 citizens. After hearing the testimony and seeing the evidence, they returned a verdict in favor of the Nestlehutts. The jury granted recovery for past and future medical expenses and concluded that the severe impact to Betty Nestlehutt’s quality of life warranted $900,000 in “non-economic” damages. However, this was more than the $350,000 cap on noneconomic damages in the 2005 law, which overrides the judgment of a jury that has been presented with the facts.

Judge Diane Bessen ruled that the statute capping a jury’s verdict was unconstitutional. The decision was appealed by the defendants to the Georgia Supreme Court. After hearing arguments in the fall of 2009, the Supreme Court agreed with Judge Bessen and ruled the statute unconstitutional.

We applaud Mr. Malone and Mr. Ilardi’s efforts in this case as well as the Court’s ruling.

UPDATE: In response to this ruling, Dr. J. James Rohack, AMA President, posted his reaction on the AMA’s website.

“The action puts Georgia’s patients at risk for the severe access problems suffered prior to 2005 when the state’s unrestrained legal system pushed premiums to record highs and forced physicians to limit services, retire early, or move to other states where liability premiums were more stable.”

“The AMA continues to vigorously support strong, proven medical liability reforms at the state and federal levels to keep physicians caring for patients, while still allowing patients their day in court.”

Who is he kidding?  By putting unreasonable ‘caps’ on damages and creating standards such as “gross negligence” for cases against emergency room healthcare providers, this goes to “allowing patients their day in court”?  I’m sure the AMA is driven by altruistic motives to make such a ridiculous statement.

CDC Features – Data Show 1 in 303 Children Have Cerebral Palsy

Monday, March 22nd, 2010

Cerebral palsy – how common is it? A recent “Features” posting by the CDC (Centers for Disease Control and Prevention) provides some answers and gives parents some ‘early signs’ of which to be aware.

While everyone knows that cerebral palsy (CP) can be a devastating condition, it is less well-known how common CP actually is. The Center for Disease Control recently released new data on the frequency of CP. In its study, it found that CP affects 3.3 per 1,000 eight-year-old children, or 1 in 303 children. This data was collected from select communities in Georgia, Alabama and Wisconsin, not the nation overall. Rates may differ slightly in other localities. However, the CDC pointed out that its most current findings on CP frequency were similar to previous studies which showed that CP affected 3.6 per 1,000, or 1 in 278 children.  

In reporting the data, the CDC also advised parents what to look out for in terms of signs of CP, based on the age of the child. Parents should consult a physician if they notice any of the following signs:

A child over 2 months with cerebral palsy might have difficulty controlling head when picked up, or have stiff legs that cross or “scissor” when picked up;

A child over 6 months with cerebral palsy might continue to have a hard time controlling head when picked up, or reach with only one hand while keeping the other in a fist;

A child over 10 months with cerebral palsy might crawl by pushing off with one hand and leg while dragging the opposite hand and leg, or not sit by himself or herself;

A child over 12 months with cerebral palsy might not crawl, or not be able to stand with support;

A child over 24 months with cerebral palsy might not be able to walk, or not be able to push a toy with wheels.`

Parents, be aware of these early signs!  If you are not sure what to do or to whom you can turn, the CDC offers the following information:

To find out who to speak to in your area, contact the National Dissemination Center for Children with Disabilities by calling 1-800-695-0285 or visiting the Center’s Web site

Of course, you always have your child’s pediatrician as a starting point.

Do It Best Recalls Bicycle Bells Due to Violation of Lead Paint Standard

Sunday, March 21st, 2010

Approximately 1,000 bicycle bells were placed under a recall this past week by the Consumer Product Safety Commission (CPSC)  The following are some of the relevant details, and the full recall information can be located at the following link: recall notice.

Name of Product: Bicycle Bells                        

Units: About 1,000

Distributor: Do It Best Corp., of Fort Wayne, Ind.

Manufacturer: Botou Baite Bike Bell Co. Ltd., of Botou City, China

Hazard: The red paint on the bicycle bells contains excessive lead levels, violating the federal lead paint standard.

Description: This recall involves children’s bicycle bells. The bells are red, black and white and has “I ♥ My Bike” printed on the top. The green and white packaging reads “bike bell” and “$1.”

If you or your child has a bicycle bell, please make sure it is not one of the recalled bells.  Thankfully, as of today’s date, there have not been any reported injuries to the CPSC.








Graco Recalls Harmony™ High Chairs Due to Fall Hazard

Sunday, March 21st, 2010

On March 18, 2010, the Consumer Product Safety Commission (CPSC) announced a voluntary recall covering over a million high chairs for babies.

To date, there have been over 450 reports of screws loosening/falling out and/or plastic brackets cracking.  These events may cause the high chair to tip over as a result of becoming unstable.  

Although the high chair is no longer in production, the recall covers Graco Harmony High Chairs that have been sold throughout the country in many well-known department stores.  For the important recall details, go to the following link – product recall details.

There have already been several injuries reported as a result of the fall hazard.  Please also note, as stated on the CSPC’s website, that the recall applies to all Graco Harmony High Chairs.

Asthma – How to Protect Your Child When the Steroid Inhaler Fails

Sunday, March 21st, 2010

According to an article published by WebMD, a new study by the National Institute of Health examined the effectiveness of step-up asthma treatment among children who continue to experience asthma attack on steroid inhalers.

Researchers concluded that the success of the step-up treatment varies depending on the population of children. The study focused on 182 children between the ages 6 and 17. All of the children enrolled in the study experienced asthma attacks despite regular steroid treatment. In this population, the following drugs were used: long-acting beta-agonists (LABAs), leukotriene-receptor antagonist (LTRA), and increased doses of inhaled steroids. According to the article:

The drugs with the best chance of success – 45% – are long-acting beta-agonists (LABAs)… . But safety concerns limit the use of these agents, the best known of which are Serevent and Foradil and the combination products Advair and Symbicort. About 30% of kids, the study found, do best either with a leukotriene-receptor antagonist (LTRA, brands include Accolate, Singulair, and Zyflo) or by doubling the dose of the child’s current inhaled steroid medication.

Although the study did not reveal a clear winner, researchers were able to identify the following correlations:

Hispanic and non-Hispanic white children were most likely to have the best response to LABA and least likely to have the best response to doubling inhaled steroid dosage. Black children were equally likely to have the best response to LABA or doubling inhaled steroids and less likely to have the best response to LTRA. Children who did not have eczema were most likely to have the best response to LABA.

Contributing author: Jon Stefanuca

Study Finds Stents as Effective as Surgery to Prevent Strokes; European Study Finds Otherwise

Thursday, March 18th, 2010

A few weeks ago, the NY Times published a story about a recent North American study designed to examine the efficacy of stenting versus surgery of the carotid artery for the prevention of strokes. Known as the Crest (Carotid Revascularization Endarterectomy versus Stenting Trial) Study, the project was designed to determine if the less invasive procedure known as stenting (i.e. placing a small tube inside the carotid artery) was an equally safe and effective treatment option to surgery for the prevention of stroke.  

Strokes are reported to be “the third leading cause of death in the United States and a major cause of disability among adults. Each year, almost 800,000 Americans suffer a stroke, and more than 140,000 die.”

Of concern, however, is a European study published online in the Lancet the day before the announcement of the Crest Study results.  According to Dr. Martin M. Brown, chief investigator for the European trial, the International Carotid Stenting Study, their investigation showed “dismal results” from stenting versus surgery in their study group population of 1,173 randomly selected patients (the Crest study involved 2,502 patients from more than 100 hospitals in North America).

Dr. Brown said that although differences in the groups studied might explain the disparate results, “nobody has really shown stenting is better than surgery, so why choose a stent?”

Dr. Brown added, “Even if Crest shows little difference between the two, there are three other trials that suggest surgery is safer.”

On the other side of the debate, however, are the statements of the lead author of the Crest Study, Dr. Thomas  Brott, who is quoted in the NY Times article as saying:

“We had outstanding results, and our study, we think, is representative of these treatments in the United States and Canada. Prior to the Crest trial, we really did not have the best evidence, but these results indicate that we have two very safe and effective methods to prevent stroke.” Though there are differences in risk between the two procedures and individual variations, he said, “the results from stenting are very comparable to those for carotid surgery.”

The differences in the two studies in terms of mortality and morbidity are summarized in the Times article.

What to make out of all this remains the question.  Hopefully further studies will provide a clearer answer.

I am not a doctor, and I suspect, you, the reader, are probably not either.  What I can say is this – and it is what I have been advocating throughout many of our blogs – be an educated patient.  Ask questions if you find yourself or a loved one presented with this option of surgery versus stenting and ask the right questions of your doctor.  Why is one option being suggested by your doctor over the other?  What are the risks of each procedure?  While one procedure may be “less invasive” than the other, there are still risks associated with each.  ”Less invasive” is not always the answer.   I further encourage you to ask your doctor what his or her experience is in performing carotid artery stenting.  Remember, the Crest Study had one key element – “carefully screened … doctors doing the stenting procedure, including only highly skilled physicians with a lot of experience.”  Make sure your doctor fits that description.

Serious flaws in D.C.'s paramedic system

Wednesday, March 17th, 2010

So says an editorial in last week’s The Washington Post.  The editorial details multiple deaths, allegedly caused by the inadequacies of  DC emergency response units.  One of the cases is the tragic story of Stephanie Stevens:

Responding to a call of a child with trouble breathing, emergency personnel went to Stephanie’s home on Feb. 10. But instead of taking her to a hospital, they advised her mother to run a hot shower to clear the child’s congested lungs. Less than 24 hours later, after another 911 call, she was dead, reportedly from complications of pneumonia.

This horrible set of circumstances follows other deaths in recent years – one with striking similarities:

Yet another problematic case was that of Edward L. Givens, who died in December 2008 after complaining of chest pains and being advised by emergency medical personnel to take Pepto-Bismol for what was likely acid reflux.

According to The Washington Post, a task force has been formed and has made some limited progress.  However, some of the main goals involve equal pay for medical personnel and to unify operations.  To date, this has not been accomplished.  An in-depth exclusive was featured by The Washington Post last year, regarding DC EMS problems.  A very concerning assessment of the quality of the training and performance of D.C.’s emergency response units was the subject of a Washington Times report of April 2009, which contains a ‘must see’ interview of Paul Werfel, Stony Brook University’s EMT/paramedic program director conducted by NBC 4, Washington, D.C.

Infant Deaths Prompt CPSC Warning About Sling Carriers for Babies

Wednesday, March 17th, 2010

The Consumer Product Safety Commision (CPSC) has posted a warning about infant sling carriers, due to at least 14 deaths associated with the product.  The warning, posted in a release by the CPSC on March 12th, contains illustrations of the different positions, many of which are dangerous, of how babies are known to be carried in sling carriers.  The release also which infants are most at risk, as well as how to protect a child should the caregiver choose to use a sling carrier:

Many of the babies who died in slings were either a low birth weight twin, were born prematurely, or had breathing issues such as a cold. Therefore, CPSC urges parents of preemies, twins, babies in fragile health and those with low weight to use extra care and consult their pediatricians about using slings.

CPSC recommends that parents and caregivers make sure the infant’s face is not covered and is visible at all times to the sling’s wearer. If nursing the baby in a sling, change the baby’s position after feeding so the baby’s head is facing up and is clear of the sling and the mother’s body. Parents and caregivers should be vigilant about frequently checking their baby in a sling.

The CPSC has now added slings to products that require a mandatory standard.  Because time is of the essence, the CPSC is working with ASTM International to attempt to put voluntary standards in place for infant sling carriers, as soon as possible.  The release also has a link for reporting infant sling carrier problems: www.cpsc.gov/cgibin/incident.aspx.

Ga. Supreme Court Upholds Key Medical Malpractice Law Requiring Proof of Gross Negligence for Emergency Room Physicians

Wednesday, March 17th, 2010

Another legal ruling in the ongoing debate over tort reform – this one from the State of Georgia. MSNBC is reporting (citing Associated Press) that the Georgia Supreme Court, in a divided 4-3 opinion, has upheld a 2005 state law that requires patients to prove “gross negligence,” rather than ordinary negligence, in order to prevail in a medical malpractice case against emergency room physicians.

A Georgia woman, who suffered a stroke after receiving allegedly negligent treatment at an emergency room, challenged the constitutionality of the 2005 law, claiming that it created an insurmountable hurdle at trial.  The Georgia Supreme Court disagreed.

The court’s majority opinion, penned by Justice George Carley, found that it was “entirely logical” for lawmakers to approve the legislation in hopes of stemming the rising cost of medical malpractice insurance.

Usually, the focus of tort reform legislation has been in either instituting a cap on damages, or restricting attorneys’ fees, or both. In 2005, however, the Georgia legislature implemented an additional mechanism that was designed not to limit the amount of recovery in successful lawsuits but was instead specifically designed to make it more difficult for injured patients to prove their case at trial.

Prior to the law enacted in 2005, in order for a patient to prevail in a medical malpractice action, the patient had to be able to prove that the defendant doctor was negligent – i.e. violated the standard of care, which has usually been held to mean that the doctor failed to do what a reasonably competent doctor would have done in the same or similar circumstances. Under the new law in 2005, however, patients were required to prove that the defendant doctor (at least in the emergency room setting) committed “gross negligence,” which is a much higher level of negligence, generally defined as near-total disregard for the rights of others, reckless disregard, or willful or wanton indifference to the consequences of one’s actions.

Clearly, forcing patients to meet this higher burden will make it more difficult for injured patients to sue emergency room physicians, which was the very intent of the Georgia legislature. The ruling also means that negligent doctors who would have been found liable under traditional law will now get off scot-free, leaving injured patients with no recovery.

The same court is expected to rule later this month on the constitutionality of Georgia’s cap of $350,000 on damages for pain and suffering.

Maryland’s Cap and a Message from the former MAJ President re the Goings-On in Annapolis

Saturday, March 13th, 2010

Normally I don’t post materials from my News Feeds on Facebook – however – when you see a particularly well written piece that needs to ‘get out there,’ I make an exception. The following is a wall posting from the past President of the Maryland Association for Justice, Wayne Willoughby.

by Wayne M. Willoughby                            
Past President, Maryland Association for Justice 

In 2004, hysteria struck Annapolis. Hordes of physicians in white coats descended upon the State House demanding so-called “tort reform” as the fix to their rising malpractice premiums. The Maryland Association for Justice (then known as the Maryland Trial Lawyers Association) stood virtually alone in opposing the fear-driven throng.

MAJ retained a highly respected insurance analyst, Jay Angoff, to examine the recent malpractice premium hikes. Mr. Angoff was the third-longest serving insurance commissioner for the State of Missouri and previously had served the State of Maryland as the State’s insurance expert in other matters. His conclusion: the malpractice premium increases that caused the panic were totally unjustified; the doctors were being gouged by their insurance carrier.

So, MAJ advised the members of the General Assembly that they were being hoodwinked. What was needed was aggressive insurance regulation to prevent carriers from gouging doctors, not new laws depriving injured patients of full and fair justice in our courts.

Nevertheless, swept up in the frenzy, the General Assembly enacted House Bill 2 containing a premium subsidy for physicians and some measures that severely punished injured patients. One such measure lowered the damage cap on wrongful death and survival claims to the point that the life of a malpractice victim in Maryland is now worth at law only 50% of the life of a victim of other forms of negligence.

Time proved MAJ was correct, the malpractice “crisis” of 2004 had been a cruel hoax on the public and the General Assembly. Within seven months after passage of HB 2 – years before HB 2’s tort “reforms” could affect claims payouts and premiums – Maryland largest malpractice carrier, Medical Mutual, announced it would not increase premiums for 2006.

For 2007 the carrier lowered its base premiums by 8% and announced a $68.6 Million dividend for its insured physicians. With a new consumer friendly Governor in office, and his new insurance commissioner at the helm, Medical Mutual’s move was greeted by the Maryland Insurance Administration with a cease and desist order.

As a result, the taxpayers of Maryland were able to recoup from Medical Mutual the approximately $84.Million that had been paid to the company for rate stabilization under HB 2. Medical Mutual’s finances were so superb that it still issued a $13.8 Million dividend to physicians and lowered its premiums 8% for 2008 despite paying $84 Million back to the State.

Then, in 2009 Medical Mutual lowered its premiums by 31% (an 11% base premium reduction and a 20% dividend for renewing physicians). Again, in 2010, Medical Mutualannounced another 31% premium reduction (11% plus 20%).

Consequently, the events after the 2004 Special Session demonstrate the truth of what MAJ has said all along: The “crisis” of 2004 was no crisis at all. It was little more than a raid on the public treasury and the legal rights of injured patients accomplished though the use of fear to manipulate public opinion and the legislature.

Although the taxpayers of Maryland have been made whole because of the decisive actions of Governor O’Malley’s insurance commissioner, and doctors have access to “available and affordable” insurance (per the official Maryland Insurance Administration’s report), there is one group that has not been made whole from the damaging effects of the contrived crisis of 2004: injured patients.

Now pending before committees of the General Assembly is a cross-filed bill to rectify this situation. House Bill 622/ Senate Bill 769 will return the damage cap on medical malpractice claims to their pre-hoax levels. If this bill is enacted, injured Marylanders once again would be treated the same under the law irrespective of whether their injury resulted from negligent medical practice, negligent driving, or a defective product.

All people who believe in civil justice should contact the members of the House Judiciary Committee and the Senate Judicial Proceedings Committee and demand that they vote in favor of HB 622/SB769.

Keep up all your hard and good  work, Wayne.