Archive for the ‘Medical Malpractice’ Category

Autism and Wandering – a constant struggle

Wednesday, August 3rd, 2011

I have written before in this space about special needs children, including children with autism. This week I want to turn my attention to one aspect of autism – wandering – and some of the ways parents and schools are trying to keep kids safe. Wandering is something I really had not heard of before, but I’ve since learned that it is a serious danger to children with autism or other cognitive deficits. It is also a major source of stress to parents who are constantly worried about their child wandering off.

All children have a tendency to wander away from their parents at times. When my daughter was two, I lost her at Sports Authority. I thought she was standing right next to me while I was looking at something, then I looked down and she was gone. After a few frantic minutes – and with the quick help of the store employees – we found her all the way on the opposite side of the store looking at balls. She was perfectly fine, but it was terrifying for me.

For reasons that are not well understood, children with Autism Spectrum Disorder (ASD) tend to wander more than non-autistic children. As reported by the Child Mind Institute and others, a recent study by the Interactive Autism Network has finally tried to quantify what has traditionally been more anecdotal evidence about wandering.

According to the responses from more than 800 parents, roughly 50 percent of children between the ages of 4 and 10 with an ASD wander at some point, four times more than their unaffected siblings. The behavior peaks at 4, almost four times higher than their unaffected siblings, but almost 30 percent of kids with an ASD between the ages of 7 and 10 are still eloping, eight times more than their unaffected brothers and sisters.

Autistic children seem to wander for two basic reasons. One is to find something they like, such as their favorite pond or playground; and one is to get away from something they don’t like such as a stressful school environment. It’s not really running away, at least as that term is usually used to describe a child who decides to leave home because of some real or perceived injustice at home. A majority of parents in the study described their child as happy and focused when they wandered off. It is usually a matter of the child being drawn to something that he or she likes. One child referenced in the Child Mind story had a fascination with exit signs. One day at school, the boy wandered off through the woods toward the highway to find his favorite exit sign. Thankfully, a good Samaritan picked-up the boy and returned him to where he belonged.

The danger for children is very real. While concrete statistics are difficult to come by, drowning seems to be the biggest danger (there are some who believe that autistic children are drawn to water). Children can also wander into traffic. Of course, when any small child wanders alone there is the risk of getting lost or being abducted. To further complicate matters, thirty-five percent of families in the study reported that their child is never or rarely able to communicate basic identifying information such as name, address and phone number. This obviously makes it harder for a wandering child to get back home. Even older or more high-functioning children may – due to their social anxiety – be reluctant to seek out help or cooperate with someone who is trying to intervene.

Wandering represents a challenge to schools because it can be very difficult to monitor a child all day long, especially during class changes and recess. The problem, however, also occurs at home. Wandering occurs not just during the day; night-time wandering is an especially big fear for parents of autistic children. Some children have been known to get up in the middle of the night, undo the deadbolt on the front door, and walk-off into the night. The terror of finding your child gone in the middle of the night is unimaginable. Some parents have installed deadbolts higher up on the doors, some have installed alarms that go off if the door is opened. Some parents have gone so far as to have their children wear tracking devices that send out a signal that can be pin-pointed. While all of these techniques can help, there are no sure-fire methods of preventing wandering. It is a constant worry for parents.

The autism community has taken action by getting the Center for Disease Control’s safety subcommittee to assign a specific medical code for wandering, which will be in conjunction with the diagnosis of ASD. By doing this, it is hoped that doctors will more readily recognize wandering as a legitimate diagnosis that they can address with the parents or other caregivers (the new code applies to adults with ASD as well). The American Academy of Pediatrics is also preparing a fact sheet to educate doctors on the topic so that they can better work with parents to try to reduce the incidence of wandering. The new code may also make it easier for parents to seek reimbursement from their insurance companies for alarms and tracking devices, and it may make it easier for parents to argue to their schools that a one-on-one monitor is needed as part of the child’s Individualized Education Plan (IEP). The new code takes effect in October 2011.

Lori McIlwain, Chairwoman of the National Autism Association, recently discussed how to deal with wandering:

The best overall strategy is a multi-tiered approach, which includes educating the child about safety and dangers using whatever means of communication works, including social stories, language and/or visual prompts. It’s also important that caregivers—and schools—work to understand what is causing, or contributing to, the wandering or bolting behaviors so that any triggers may be addressed or eliminated.

Have any of our readers had any experience with wandering? I’d like to hear your stories as to how you deal with it and how it affects your life.

Related Nash and Associates Links:

Dogs a Huge Help to Special Needs Kids

The Daily Struggle of Raising a Disabled Child

Many Parents Still Believe Vaccines Cause Autism

 

 

Photo courtesy of: Issueswithautism.com

Service dogs in school — a fresh look

Friday, July 22nd, 2011
Service Dog and Boy

service dogs

A while back I wrote a piece on the topic of service dogs for kids and mentioned the use of service dogs in schools. A regular reader of our blog then wrote in with a number of comments and questions about the propriety of dogs in schools. To help answer her questions, I recently spoke with Nancy Fierer, who is the Director at Susquehanna Service Dogs in Harrisburg, Pennsylvania, which is an organization that trains and places service dogs. Susquehanna is the organization that placed two of the dogs mentioned in this NPR story.

The ADA and dogs in school

I also did a little more research on the Americans with Disabilities Act (“ADA”) and its impact on the issue. The ADA requires that all public facilities allow a disabled person and his or her service dog (not pets) to enter the premises just the same as a non-disabled person. So is a school considered a public facility? It’s an interesting question. On the one hand it is accessible to the public in the sense that parents and students can freely enter a school. However, if you’re not the parent of a child at the school, can you just walk into a school and roam the halls like you might roam around a mall? I think if you tried that, you would get stopped pretty quickly and asked to leave if you had no valid business there. However, the law appears to be settled that schools are considered public facilities at least for those areas that are open to the public such as administrative offices, gymnasiums during sporting events, and auditoriums during public events. Therefore, schools must be accessible to service dogs in these public areas. For class rooms, however, it’s not so clear. While the law appears to favor allowing service dogs in class rooms, it is being decided on a case-by-case basis because there are other considerations as well – the age of the child, the disability at issue, the ability to control the dog, etc.

How much school assistance is necessary?

I have to admit that when I first wrote on this topic, I had envisioned that the dog and child were a self-contained unit that required little in the way of adult assistance. Ms. Fierer indicated that that is usually not the case. Depending on the age of the child and the level of disability, the child may be able to care for the dog independently. However, in most instances an adult (teacher’s aide or nurse perhaps) is required to pitch in with help giving the dog water and taking it out for bathroom breaks. Ms. Fierer indicated that the dog does need water breaks during the day (feeding can be done at home before and after school). This is usually accomplished by keeping a water bowl in a nearby room – perhaps a nurse’s office or a counselor’s office. Several times a day, either the child (if he/she is old enough) or an adult can take the dog for a drink. The same is true for bathroom breaks (pee only; No. 2 is usually taken care of at home). Again, service dogs do require assistance from the school but from what Ms. Fierer told me, the disruption is fairly minimal and can be worked out with proper planning.

Controlling a service dog

A larger issue is the child’s ability to control the dog. Even though service dogs are highly trained, the owner (in this case a child) must still be able to control the dog before being permitted to take a dog into school. These include such basic commands as making the dog sit, stay, come, leave it, and walk on loose leash. These are some of the common commands that all service dogs must know. In addition, a service dog also receives additional training in a particular disability and learns specific commands unique to that disability, e.g., retrieving specific items, pulling a wheelchair, responding to seizures, search and rescue. These commands must be mastered as well. For example, if an autistic child is in need of the dog to put its head in the child’s lap to help calm him/her down, the child (or a trained adult) has to be able to give the dog that command. If the child cannot give that command to the dog, then it undermines the usefulness of the dog in school.

Because of the demands that service dogs place on the child, very young children usually do not take dogs to school unescorted. Ms. Fierer said she would be surprised to see a six-year-old, for example, taking a dog to school alone. Older children can, with proper training, be permitted to take a dog to school alone. To ensure that the child is capable of caring for the dog, Susquehanna utilizes the Assistance Dogs International Public Access Test. This test requires the owner and the dog to perform multiple tests in a variety of settings to ensure that the dog is well-trained and that the owner can properly control the dog. For children, Ms. Fierer indicated that the testing is usually administered with the parent and child because she uses the team approach – the parent, child and dog are a team. For a child taking the dog to school, however, the parent is usually not there so the child must be able to control the dog independently. Only when a child is adept at controlling the dog should the child be permitted to take the dog to school. Even then, parents have to work closely with the child’s teacher and other school staff to coordinate the details of how the dog will be cared for.

Other concerns

Our reader also asked questions about whether service dogs are a distraction in school and whether they can pose a danger to other children. After talking to Ms. Fierer, it’s my opinion that these are not major concerns. As for being a distraction, Ms. Fierer said that is usually not the case. Service dogs are generally introduced into the school gradually, starting with maybe a half-hour per day and building from there. The children get accustomed to the dog and the novelty soon wears off. Also, the other children need to be educated that this is a service dog and not a pet to be played with. Children can easily learn this lesson. As for being a danger to other children, Ms. Fierer said she has never heard of a dangerous incident happening at school such as a dog biting a child. These dogs are amazingly well-trained and the trainers allow zero tolerance for aggressive behavior. If a dog shows any aggression, that dog does not make the cut for being a service dog. Therefore, I don’t believe this concern is a valid reason for denying a child a service dog.

Training a service dog

In terms of the actual training given to the dogs, Ms. Fierer said that when a puppy is eight weeks old, it starts living with a dedicated puppy handler who is responsible for teaching the dog basic manners.  This time includes classes at Susquehanna twice per month.  This arrangement goes on till the dog is 18 months old, at which time the dog receives about six months of intense training.  About 50-60 percent of training is the same for all service dogs. The rest is devoted to the unique needs of each disability. Before a dog is placed, Susquehanna spends about 2 and ½ weeks training the family that is receiving the dog. Even after placement, Susquehanna continues to do follow-up training – at first on a weekly basis and then gradually declining over the next six months. It even does annual re-testing.

I hope this follow-up addresses our readers’ concerns. Ms. Fierer emphasized that service dogs are not the solution for every child. Susquehanna actually does therapy sessions with families before even agreeing to place a dog to ensure that the dog and the family are a good fit. She indicated that it is a big responsibility to own a service dog and it is not a decision that is made lightly by the dog trainers. However, for the right child and the right family, a service dog can be an amazing asset.

Related Nash and Associates Links:

Service Dogs for Kids

 

photo from servicedogtraining.wordpress.com

 

 

 

 

 

 

 

 

 

 

 

Week in Review: (July 2 – July 9, 2011) Eye Opener Health, Law and Medicine Blog

Saturday, July 9th, 2011

Eye Opener’s Week in Review

From the guest editor:         Good morning! I was hoping that you would take a break from making your “to do” list to stop by and check in with us. As usual, we have been busy blogging. And practicing law. And getting ready for trial. And in trial! Needless to say, we have been pushing it to the limits. In truth, we wouldn’t have it any other way. Before we get back to trial preparation, lets take a step back and look at the past week.

–Jason Penn, guest editor

Litigating for the Sake of Litigating: A Temptation to Be Resisted

By Jon Stefanuca

What do you do when your opposing counsel forgets that the practice of law is a profession and not a blood sport? What do you do when the phase “zealous representation” gets confused with “obnoxious obstructionist behavior?” When faced with similar frustrations, Jon Stefanuca broke out his keyboard and explained what we litigators deal with on a day to day basis. Being a lawyer is a very rewarding profession, but like any other, it has its share of frustrations. Don’t take my word for it, read more

Can Copper Surfaces and Duct Tape Reduce Hospital Infections and Deaths?

By Sara Keogh

Germs are in your kitchen.  They are in your bathroom and your bedroom.  They are on your fingertips and even on your tongue.  And everyone knows that there are going to be germs in hospitals. Even the best hospitals have to work to keep the patients, rooms and visitors clean and safe.  Sara Keogh reported on news that may make keeping hospitals and other health care environments less germy in the future. Two simple solutions, copper and duct tape, might have a major impact on infection control.  Read more

Sneak Peak of the Week Ahead:

The Eye Opener and its writers are excited about the week ahead too!  Here’s a sneak peak of what’s in store for you:

  • Service dogs for children:  more than just a pet
  • Legal Boot Camp is back in session and Part IV of our Cerebral Palsy tutorial.
  • And more!

Images courtesy of:

www.lifehack.org

www.mountainpulse.blogspot.org

 

Litigating for the Sake of Litigating: A Temptation to Be Resisted

Tuesday, July 5th, 2011

It really grinds my gears when attorneys start litigating for the sake of litigating without context or purpose. That’s right; I bet if you are a litigator, you know exactly what I am referring to.  I am litigator, and I am absolutely convinced that we would all be better lawyers and happier individuals if we just learned how to do our job with dignity and professionalism, while avoiding absurd tactics and unnecessary drama.

Maybe I am alone on this one (and part of me really wishes that I am), but I just don’t understand why some lawyers think it is beneficial to have one gear and one gear only during the litigation process –  to object and obstruct no matter what. Is it really necessary, for example, to resist any and all discovery requests by dreaming up objections that have no merit?  In the end, is impeding the flow of information during discovery really in the client’s best interest, and frankly, is it consistent with our ethical obligations as professionals?  It is my humble impression that this kind of obstructive behavior happens more than one might expect. So, we end up writing unnecessary motions and nasty letters and emails, we go to depositions to argue some more with the opposing attorney instead of focusing on the witness, and we create so much “bad blood” that the case becomes one about lawyers and not their clients. Is this consistent with our professional obligations? I certainly think not.

Isn’t it in the client’s best interest to share as much information as possible about the merits of the case so that the opposing party can make informed decisions about settling the case early instead of dragging the parties through litigation for years? Why would a plaintiff’s lawyer not want a defendant to know the nature of his claims, the extent of his damages, and the identity and subject matter of his experts’ testimony?  Sharing this type of information is exactly the reason why a Plaintiff is in litigation in the first place.

Similarly, doesn’t it help a defense lawyer to be a straight shooter early on in the discovery process so that the plaintiff will not go on to note 100 depositions and use every discovery tool just to make sure that defense counsel isn’t hiding something? If the defense to a case is weak, isn’t better for all parties to be on the same page (yes, even when a corporate defendant is not in the mood to hear bad news) so that a case that must be settled can be settled early without making defendant incur unnecessary defense costs? Pardon my cynicism, but since I am on my soapbox, let me say this as well: the interest in having billing time should never be a substitute for the client’s best interest.  One byproduct of being evasive in discovery is that the defendant client (especially a corporate client) might end up being misinformed about the merits of the case – not a good position to be in when the lawyer finally comes to his/her senses and recommends settlement, but the client is not on the same page.

We have got to stop taking positions that have no good faith basis.  If there is no evidence of contributory negligence, don’t claim contributory negligence.  If experts are retained to testify at trial before the expert designation deadline, don’t object to their disclosure during written discovery simply because the expert designation is not due for another three months. If you can’t resist speaking objections, there are better places than a deposition to hear yourself talk.  If you have to file a motion, file one because you have to, not because you got a new crop of summer associates or first year associates doing nothing but writing motions for the sake of writing motions. I can go on, and I am sure that, if you’re a litigator, you can contribute to this list.

Life is too short and our occupations too stressful to engage in the meaningless waste of spirit. Time spent on useless litigation could be time spend with our families. What do you think? Don’t be shy, hop on the soapbox….

Related Posts:

Why early settlement is a win-win for all

Mediation of Lawsuits: The Top 5 Things that Tick Me Off!

 

 

 

Don’t underestimate jurors. They really do get it – most of the time!

Tuesday, June 21st, 2011

I just finished a two week trial that was probably one of the most complex medical cases of my 37 year career. Since the “resolution” of the case is the subject of a confidentiality agreement, I’m not at liberty to discuss the details of the case or its “resolution.” Nevertheless, what I am free to tell you is that having tried hundreds of jury trials over my career, it amazes me just how often jurors “get it” when it comes to doing their very best to understand the evidence thrown at them and to do “the right thing.”

The case involved about 8,000 pages of medical records. Jurors heard from 8 medical witnesses ranging from surgery, to infectious disease, to radiology to pathology. This was not a case involving “Anatomy 101″; it was an advanced course in the biomechanics of the spine, neural element compression, biofilms on hardware, pulmonary hypertension, deep vein thrombosis – well, you get the picture.

After nine grueling, long days of evidence, sitting in hard, non-cushioned chairs and having to endure seemingly endless bench conferences dealing with evidentiary issues and objections that the jury was not allowed to follow, our panel patiently waited for over two hours on their final day of service while the parties to the lawsuit worked out “a resolution” of the case. The trial was to end the next day (today). They, the jurors, would finally get to speak to us, rather than having us speak to them for over two weeks.

Once the details of the “resolution” were hammered out, the judge had the courtroom clerk bring the jury into the courtroom to take their “luxurious” wooden seats. The Court announced that the parties had “resolved” the case and that the jurors’ service was now completed. Nine plus days and countless hours of sitting and listening – and now – no chance to deliberate and tell the parties who they – the jurors - thought was right in this legal battle. The judge then advised them that they had served a most important function because many times (this being one of them) the parties could not reach agreement – uh “resolution” – without them. It was further announced by the Court that if they cared to do so, they were now free to speak with the lawyers.

Rather than gather up their belongings and hustle out the door, each and every one of them remained in the courtroom to share their thoughts and observations of the trial. Once again, as has happened so many times in my career, I was pleasantly surprised  and amazed by what they had to say. Peppered with questions by the lawyers to see if they “got it,” our jurors shared their observations about key issues in the case. The told us about their “take” on the evidence involving T1 versus T2 weighted MRI’s. They accurately recounted the evidence regarding the issues of “sub-clinical infection.” They shared their individual thoughts and reflections on what role the decedent’s underlying, complicated co-morbidities played in their analysis of causation.

We’re not talking about a panel of medical experts here. We’re talking about everyday folks, who brought their common sense and varying levels of education and life-experiences to the litigation table. They “got it”!

None of the parties will ever know what the jury’s eventual verdict would have been. Nevertheless, because of the uncertainty of that verdict, the opposing sides in this lawsuit worked their way through a morass of emotion, righteousness, principles – you name it – to get the case “resolved.”

I hear so often from “professionals” that the jury system is broken. They rant endlessly that we need “professional” finders of fact to arrive at just results. Oh really! If that’s the case, then why is it that each side can have highly qualified experts, who can’t agree on the interpretation of medical evidence? Maybe – just maybe – it takes people of plain common sense, goodwill and a sense of justice to get it right.

Have jurors arrived at verdicts in my career that make you want to retire from the practice of law? They have – but on very rare occasions. When you put aside the self-righteousness of bias and advocacy and reflect on verdicts, many lawyers – I for one – appreciate that juries really do “get it” and really try to do “the right thing.”

To all the cynics out there, don’t be so unwilling to appreciate what these citizens do to advance our system of justice. Is the system perfect? Far from it, but not as far from it as many would have you believe.

Let me end by simply saying – THANKS to our citizens who made-up our jury. Your patience, attentiveness, endurance and willingness to serve is very much appreciated. You could easily have dreamed-up a way to avoid service on the jury during the selection (voir dire) process (as so many do in so many pathetic ways), but you didn’t do that. Kudos to each and every one of you. You did advance the cause of justice. You made the parties to this lawsuit take note of the fact that maybe, just maybe, their view of the case was about to be tested in the crucible of the jury room. That knowledge and the reality of an impending verdict made them step back, take a deep breath and come to a “resolution” of their dispute. Well done, Citizens! I for one applaud you.

Week in Review: (June 13 – June 17, 2001) Eye Opener Health, Law and Medicine Blog

Saturday, June 18th, 2011

Eye  Opener’s Week in Review

 

Jason Penn

From the Editor:  Today marks the end of week two as “guest” editor for the Eye Opener. I can tell you that the title “editor” is a misnomer. When it comes to the Eye Opener and its panel of bloggers, very little (if any) editing takes place. Consistently, our blawgers provide you with timely and topical posts. This week was no different. Let’s take a retrospective look at what the “Eye Opener” offered this week (and, of course, a sneak peek at the week ahead.)

– Jason Penn, Guest Editor

 

(Many thanks to Jason and all those back at the firm, who helped get the word out on some great topics this past week while I’ve been wrapping-up week #2 of the trial from hell…….Brian Nash)

July 1 – New Residents, New Rules……Again!

By: Theresa Neumann

While the loss of sleep is rarely a topic on Gray’s Anatomy (or any made-for-television medical drama), it is a genuine quandary for non-actor, medical residents. This past Monday, Theresa Neumann explored the ACGME’s limitations on the hours worked by medical residents in the United States. As Theresa explained, the overall maximum hours per week will not change; it remains at 80 hours.  One big change is the limit on the maximum continuous duty period for first year residents; this will be decreased from 24 to 16 hours.  It will remain 24 hours for residents after their first year, but recommendations include “strategic napping.” Curious about the other changes?  Read more

Newest Word on Crib Safety: Ban the Bumpers?

By: Sarah Keogh

Sleep isn’t only important for medical residents; it is also important for the smallest members of our families. As Sara Keogh explained on Tuesday, Maryland is considering regulations to ban the sale of crib bumpers. For many years, more and more emphasis has been placed on infants sleeping in safe cribs without any additional “stuff” in them. This has included the elimination of lots of former nursery staples. Baby blankets, stuffed animals, pillows and other loose items have been banned from the crib by safety experts for years. As requirements for cribs have required slats that are closer together, the utility of using a bumper to help a child from getting stuck between crib slats has been eliminated. More recently, the Consumer Product Safety Commission has developed even newer crib safety standards, including eliminating the use of drop-sides, and warned against the use of sleep positioners. Yet, despite the advice to put babies to sleep only on their backs in cribs empty of everything except a well fitting mattress and fitted sheet, many parents and caregivers persist in using other items in cribs. Now, with an increasing number of deaths associated with crib bumpers, Maryland is considering a stronger stance. Read more

Legal Boot Camp Class Four. Sean and Kristy’s Story: How a Jury Award is Conformed to the Cap

By: John Stefanuca

On Wednesday blogger Jon Stefanuca broke out his calculator:  bootcamp style.  In the state of Maryland, there is a cap on the damages that can be awarded.  But what happens when a jury returns a verdict in excess of the statutory amount?  Mathematics and law intersect.

To see the results, and a detailed explanation of how it all works, you can read more ….

 

Confusion with Advanced Directives: Palliative Care, End-of-Life and Hospice Care

By: Theresa Neumann

With the death of the always controversial Jack Kevorkian, we revisited a post by Theresa Neumann.  Breathing a little life into the post (pun intended), Theresa provides an excellent primer for readers that are facing end of life situations.  The differences are nuanced and can be difficult to understand at a most difficult time. Are you sure you know the difference between palliative, end-of-life and hospice care?  Read more

Acquired Brain Injuries: Subdural Hematomas

By: Theresa Neumann

When Humpty Dumpty fell, they were able to put him back together again.  Because our lives are nothing like a children’s nursery rhyme, when we fall, we get hurt.  A head injury is particularly serious. Have you ever bumped your head and developed a “goose-egg?” It’s truly amazing how fast that big bruise under the skin grows. That bruise, or hematoma, is from a broken blood vessel, usually a vein. The pressure from the swelling helps with clotting, along with the blood’s own clotting factors. This types of hematoma typically takes a week or more to go away. If it’s on the forehead, it’s often followed by one or two “black eyes.”  That’s because the blood tends to spread along  tissue planes, and gravity notoriously pulls everything downward causing it to pool in the eye sockets, where the blood cells degrade and their components are reabsorbed by the body. Unlike a fairy tale, however, this goose-egg can be serious.  Read more

Sneak Peak of the Week Ahead:

As I told you at the beginning, the Eye Opener’s writers continue in their efforts to provide you with timely and topical blogs for your reading pleasure. As evidenced by the above, this past week was no exception. The Eye Opener and its writers are excited about the week ahead too!  Here’s a sneak peak of what’s in store for you:

  • Service dogs for children:  more than just a pet
  • Changes in Sunscreen:  will regulation prevent cancer?
  • HIV Patients:  Increased risk for developing cancer
  • Legal Boot Camp is back in session and Part III of our Cerebral Palsy tutorial.

Wishing You and Yours a Great Week Ahead!

Images courtesy of:

www.theepochtiems.com

www.sleepzine.com

www.nailsmag.com

www.aginglongevity

 

 


Legal Boot Camp Class Four. Sean and Kristy’s Story: How a Jury Award is Conformed to the Cap.

Wednesday, June 15th, 2011

From the Editor. Please see our disclaimer at the end of this blog for a better understanding of the limitations of this series and our mission statement.

Last week, we published a blog about Sean and Kristy. You will recall that Sean died from excessive bleeding when the nurse overdosed him with anticoagulation medication after a major surgery. You will also recall that after careful consideration Kristy decided to file a medical malpractice claim against the nurse and her employer, the hospital.

Now, let’s skip forward.  Kristy’s Complaint stated two causes of action: survival and wrongful death. Under the survival claim, Kristy was the only named Plaintiff because she was named Personal Representative of Sean’s Estate. Only a personal representative can bring a survival action on behalf of a decedent. Kristy and Kira (Sean’ daughter) were both named Plaintiffs under the wrongful death count. Generally speaking, only a parent, spouse, or child (with some exceptions) can bring claims for wrongful death.

At the conclusion of the trial, the jury returned a verdict of 2.5 million with 1 million awarded in the survival action and 1.5 million awarded in the wrongful death action. Furthermore, in the wrongful death action, the jury awarded Kristy 1 million dollars and Kira 500,000 dollars.  All of these damages were for pain and suffering.  You will recall that Maryland has a cap on non-economic damages. The cap imposes a limitation of about 812,000 dollars when the jury’s award is for wrongful death and survival (this is regardless of the number of claims or claimants).

How will the Court reduce the verdict so that it conforms to the statutory cap? The answer is mandated by statute: the Court must make proportionate reductions in order to reduce the jury award to the statutory cap.  Here is how it works:  The total recovery in this case is 2.5 million (1 million under the survival action, 1.5 million under the wrongful death action). 1.5 million represents 60% of the total recovery of 2.5 million.  1 million represents 40% of the total recovery.

Now, 40% of the 812,000 cap is 320,800 dollars. 60% of the 812,000 cap is 487,200 dollars. Therefore, the monetary award under the survival action will be reduced by the Court to 324,800 dollars. The overall award under the wrongful death action will be reduced by the Court proportionately to 487,200 dollars.

Furthermore, proportionate reductions are necessary to conform the wrongful death award to the cap.  An overall amount of 1.5 million was awarded in the wrongful death action.  From that award, the jury gave Kira 500,000 dollars and Kristy 1 million dollars.  One million represents about 67% of the total recovery in the wrongful death action. Kira’s award of 500,000 dollars represent 33.3%. Applying these percentages to the capped wrongful death recovery of 487,200 dollars, Kira’s award will be reduced from 500,000 dollars to 160,776 (33% of 487,200) dollars. Kristy’s award of 1 million dollars will be reduced to 326,424 dollars (67% of 487,200). This is all Maryland law will permit them to recover. Justice or injustice, what do you think?

Related Posts:

Malpractice Wrongful Death Lawsuit by Couple Falsely Accused of Abusing Their Child Filed Against Children’s Hospital

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

Legal Boot Camp (First Class): The Story of Pam – Maryland’s Law on Earning Capacity

“Wrongful Death and Survival Actions”

Disclaimer: As is the case with all of our blogs and the writings posted on our website, we are not offering legal advice to our readers. This information in our series,Legal Boot Camp, is being presented in the hope that we can provide some education about the law in Maryland and the District of Columbia. The law in the field of personal injury (and particularly in our sub-specialty of medical malpractice) can be complex and confusing at times. Even in these two jurisdictions where we are licensed to practice, the laws and their interpretation by the courts can vary significantly. It is simply our hope that by presenting this series – Legal Boot Camp - that we can provide a better understanding of some legal principles that can come into play when bringing a civil claim or lawsuit for damages as a result of the wrongdoing of others.

For those who do not live in either Maryland or the Washington, D.C., we hope that we can at least raise some issues for you to consider when you speak with an attorney licensed to practice in the state in which you live. Many times the basic concepts of law are similar. We hope that by raising some of these issues applicable to Maryland and the District of Columbia, you will at least have a basic understanding of some terms and principles that may apply to your situation. Don’t be afraid to raise these issues with your attorney. Education – be it in law or medicine – is our main goal.
Finally, please see our introductory blog for Legal Boot Camp for a better understanding of our mission in presenting this series.

 

July 1 – New Residents, New Rules……Again!

Monday, June 13th, 2011

Last year, I wrote a blog on “The July Effect”, a long-observed phenomenon of increased hospital deaths during the month of July that was substantiated by medical data and statistics just last year. These data seemed to specifically relate these deaths to the influx of new medical school graduates into teaching hospitals as first-year residents of those institutions. The conclusions of the study seemed well-substantiated. I further elaborated on some of the potential causes of errors being made that could result in harm to patients; what I didn’t elaborate upon was the rigorous and demanding schedule that residents assume.

In 2003, the Accreditation Council for Graduate Medical Education (ACGME) instituted new policies regarding the time limitations of ALL residents, but specifically focused on the first year resident. These limitations were placed on the number of hours that residents could and should work in any given week or rotation in an effort to safeguard the health of the resident but more so to ensure the safety and well-being of patients being treated by these residents.

It is now 2011, and the ACGME is instituting even stricter limitations affecting both first year and mid-level residents; Nixon Peabody does a great job of delineating the changes in the guidelines. Much information has been published in the last year regarding the continued occurrence of medical errors despite protocols and safety mechanisms in place to protect patients (click on related blogs below). It seems that the ACGME is attempting to address some of these errors by addressing the fatigue factor of medical and surgical residents in training. The overall maximum hours per week will not change; it remains at 80 hours.  Yes, twice that of “normal” jobs. One big change is the limit on the maximum continuous duty period for first year residents; this will be decreased from 24 to 16 hours.  It will remain 24 hours for residents after their first year, but recommendations include “strategic napping.” Another change is the additional duty time, previously allotted as 6 extra hours to perform clinic duty, transfer of care, didactic training, etc.; for first year residents, these duties are to be included in the overall 80-hour work week, but after the first year, the residents will be allowed 4 additional hours. A third big change is the minimum time off between duty periods. Previously, it was noted that all residents “should have” 10 hours between shifts; year 1′s are still recommended to have 10  hours off, but they MUST HAVE AT LEAST 8! Intermediate-level residents should also have 10 hours off, but they also must have at least 8 hours off with a mandatory 14 hours off if they just completed a 24-hour shift. Final year residents are recommended to receive 8 hours off, but this is still being reviewed.  One thing that has not changed is the mandatory 1 day off in 7, averaged over 4 weeks.

Many of us watch the medical TV shows, but none of these shows really paint the true picture of medical residency training. As a Physician Assistant student, I trained alongside medical residents and medical students, alike. My training mirrored theirs in the hospital setting, and it happened well before the 2003 ACGME recommendations. There were times during my surgery rotation in a trauma center during which I worked 36 hours straight, followed by 10 hours off, then back to 10- and 12-hour days. The working hours entailed clinic time, managing daily in-patient care, many hours in the operating room, admitting patients during the overnight hours from the emergency room and emergency surgery for trauma victims, hours and hours at a time, in the overnight hours and during the day.  By the end of 36 hours, the exhaustion was indescribable. It is easy to understand how and why mistakes happen. After these crazy shifts, no one ever looked so glamorous as those who are depicted on television shows…..TRUST ME!

July 1, 2011, marks the date when over 100,000 medical residents across the USA from ACGME-accredited training programs start their training in teaching hospitals/institutions across this great nation. We should applaud the ACGME for looking at the data, analyzing studies regarding sleep deprivation, and putting forth these guidelines, not only to aid in patient safety but also to protect the health and well-being of these doctors in training. The pressures of residency are incredible. It is interesting that there was and still is opposition to the duty-hour limitations, citing oppositional rationale such as the residents do not learn enough in 16 hours, and small institutions do not have the support staff to treat all of the patients without the addition of medical resident hours.

So, who is going to fill those gaps created by the resident-hour restrictions placed by the ACGME come July 1st? Each institution will have to look at its own hospital model and decide according to current standards. In 2003, many of these gaps were filled by Physician Assistants and Nurse Practitioners; I suspect this will again be the case.  These mid-level practitioners are quite capable of providing many of the services necessary in hospital settings; they are a growing and well-respected addition to the healthcare team, and I suspect that their usefulness and potential will be more fully appreciated with the institution of healthcare reform!

For more information and Frequently Asked Questions (FAQs) regarding the ACGME guidelines, please go to the website and click on the links!

And, no matter who is caring for you or your loved one, never be afraid to ask questions about therapies and medications being ordered. Be informed!

Related Posts:

“The July Effect”: Where To Seek Medical Care When The Heat Is On

Medical Malpractice – Serious Medical Errors: Failure of the System or Just Plain Ignorance

Study Finds Regional Hospitals Often Are Better At Preventing Medical Errors Than Academic Centers – Kaiser Health News

Tort Reform or Just Plain Medical Care Reform: the debate continues as thousands are injured annually in US hospitals

 

 

 

 

 

 

Week in Review: (June 6 – June 10, 2011) Eye Opener Health, Law and Medicine Blog

Saturday, June 11th, 2011

 

A Word of Special Thanks…

From the Editor:

I am so grateful to my bloggers and friends at the firm for all their hard work this week. I started a  multi-week trial this past Tuesday, but in my absence, the Eye Opener kept rolling right along thanks to them. Special thanks to Jason Penn, who took over the task of making sure the schedule was kept and the blogs got posted.

Brian Nash

 

From Jason Penn -

It is time to take a look back at the week that was.  With the temperatures soaring in the Baltimore-Washington area, the Eye Opener did its best to keep pace with the thermometer.  Five posts, five days.  All while the lawyers prepared for upcoming trials.  Not too shabby, if you ask me.  Without further ado, lets take a look at retrospective look:

The Death of a Baby – Economic Realities

By: Michael Sanders

The loss of a child, particularly an infant, is one of the most difficult and painful horrors anyone could every have to deal with.  Writing about it isn’t much easier.  Nonetheless, on Monday, blawger Michael Sanders’ post provided insight into the economics of lawsuits involving the death of an unborn child.  It is truly a “must read” for anyone that is contemplating taking legal action for the loss of their child.  The interplay between gestation, age of death and so-called “survival actions” is particularly tricky.  Mike lays out Maryland’s law on the topic and gives helpful primer for parent and practitioner alike.  Read more

Can A Simple Image Guide Nutrition?

By: Sarah Keogh

Obesity in America, particularly among our youth is a serious problem.  The problem itself certainly isn’t new but the approaches to promote healthy eating certainly have been. On Tuesday, Sara Keough pulled up to the table and reviewed the new MyPlate image and its impact on America’s unhealthy eating habits.  As I am sure you know, there have been a variety of methods to improve our nation’s eating habits. In most recent memory is the ostracized food pyramid and the First Lady’s “Let’s Move Campaign” (and associated dance moves). Sara provided her perspective on the new eating tool as both an individual and a parent.  I personally am curious: for the parents out there, will this change the way you handle your children’s nutrition?  Read more

Legal Boot Camp (Class Three): Sean and Kristy’s Story – Wrongful Death and Survival Actions

By: Jon Stefanuca

On Wednesday, Jon Stefanuca provided the third installment of our Legal Boot Camp. With class in session, Jon presented the following scenario:  Last month, Sean turned 24.  He and Kristy are married. Their daughter, Kira, is 2-years old. Sean just entered medical school. Kristy’s parents support them, while Sean is in school.  Sean has never held a job.  Kristy is a stay at home mom. A month ago, Sean was driving home when a drunk driver pushed him off the road. In the accident, Sean broke his sternum. He also sustained a number of vascular injuries, which caused internal bleeding. He was rushed to the nearest hospital. Soon after his arrival, Sean underwent surgery to stop the bleeding.

Sean was recovering beautifully. Unfortunately, on his third day in the hospital, he developed rapid breathing, shortness of breath, and his chest pain got worse. A CT scan of the chest revealed that Sean had a pulmonary embolism. The physician ordered 100 mg of anticoagulation medication.  The nurse misread the order and made a mistake in its administration. The overdose caused Sean to have extensive bleeding. Sean was scheduled for discharge within the next 3 days. Instead, he died within a few hours.

What legal action could Kristy take?  Read more

Dealing with Cerebral Palsy: A Resource for Parents and Family (Part II)

By: Jason Penn

On Thursday, Jason Penn provided us with Part II of his series “Dealing with Cerebral Palsy:  A Resource for Parents and Family.”  Part II of the series takes a look at educating children with cerebral palsy.  Children that have special needs that impact his/her ability to learn at school often qualify for an Individual Education Plan.

An IEP is a legal document created to ensure your child’s teacher, staff and administration understands his learning and other limitations and utilizes the best practices to ensure that he gets the education that he/she deserves.  Curious about an IEP?  Read more

How Much Is Your Marriage Worth?

By: Michael Sanders

To finish up the week, Michael Sanders returned, and asked the question: What is Your Marriage Worth?  If you’re married, there is category of damages that you may be able to recover – damage to your marriage. It’s called Loss of Consortium and is an important element of damages in the right circumstances. It is a legal recognition that the marital relationship itself – separate and apart from the injury to the individual – is a protected interest that is deserving of compensation if it has been harmed by the negligence of another person.  Read more…

Sneak Peak of the Week Ahead:

With the weather taking a turn for the better (hopefully), and the local sports teams showing renewed vigor, we are going to keep up the pace. As you finish up this week, and turn to the next, you can look forward to the following:

  • Service dogs for children:  more than just a pet
  • Subdural Hemorrhages – “Man, is my head aching…”
  • HIV Patients:  Increased risk for developing cancer
  • Crib bumpers & safety
  • Legal Boot Camp is back in session and Part III of our Cerebral Palsy tutorial.

Have a safe weekend, Everyone!

How Much is Your Marriage Worth?

Friday, June 10th, 2011

When you’re injured as a result of someone else’s negligence, it’s easy to see why you have a legal claim. You are entitled to recover for the injuries that you suffered, including economic damages (lost wages, medical bills, etc.) and non-economic damages (pain and suffering). However, if you’re married, there is another category of damages that you may be able to recover – damage to your marriage. It’s called Loss of Consortium and is an important element of damages in the right circumstances. It is a legal recognition that the marital relationship itself – separate and apart from the injury to the individual – is a protected interest that is deserving of compensation if it has been harmed by the negligence of another person.

Loss of consortium has an interesting history. Under Common Law (which roughly translates to “the olden days” in this circumstance) a woman had no right to sue for loss of consortium. It was only the man who had the right. That was because the woman was essentially seen as the man’s property. If she was injured and unable to provide her usual domestic or bedroom duties as a result of someone else’s negligence, the man could recover for the loss of such services. He had basically lost some of the value of his property so he was entitled to compensation. Eventually, the courts (most courts, at least) recognized the unfairness of such a one-sided system and ruled that women could also make such a claim if their husband suffered an injury. However, there are still some states (Virginia, for example) that do not recognize loss of consortium at all, no matter who tries to bring it.

Back to the present day. A loss of consortium claim arises when one spouse suffers a serious injury that impairs the marital relationship. An easy example is if a husband suffers a traumatic brain injury as a result of a doctor’s negligence. In that circumstance, the man would be able to file a claim for his own damages, of course, but he and his wife could also allege loss of consortium because the brain injury impacts the marriage. The couple will now find it more difficult to do the things they use to do together as man and wife – going out together, caring for their children, taking vacations, intimacy, and the day-to-day marital difficulties that arise because the husband now has a brain injury. In Maryland, a jury can award monetary damages for the couples’ loss of companionship, affection, assistance and yes, sexual relations. It is notoriously difficult to put a dollar figure on such injuries, but the law recognizes the right of a husband and wife to recover financially if their marriage has been damaged. How much money to award for such injury is for the jury to decide. Like other damages, it is always the plaintiffs’ burden to prove that the marriage has been injured, which is usually done through the testimony of the husband and wife.

Speaking of intimacy, some pundits say that loss of consortium is just a code-word for damage to the couples’ sex life. This is not entirely true as the marital relationship entails far more than just sex, but these pundits have a point. A loss of consortium claim usually does include an allegation that the couples’ sex life has been impacted. If you are bringing a lawsuit, you have to understand that when you allege loss of consortium, you are opening up the door on the most intimate parts of your life. Defense attorneys will often ask highly personal questions – how often did you have sex before the injury, how often do you have sex now, how exactly does the injury make sex more difficult, have either of you ever strayed from the marriage, etc. Some couples are understandably reluctant to discuss such things. Thankfully, most defense attorneys are just as uncomfortable asking these questions as the plaintiffs are answering them, so the questions tend to be over with relatively quickly. Be aware, though, that if you do file a loss of consortium claim, your sex life may become an issue in open court.

In the District of Columbia, a loss of consortium claim is for similar damages, but with a slight difference. While in Maryland the claim belongs to both the husband and the wife and is brought by them jointly, in the District of Columbia the claim belongs solely to the non-injured spouse. Any money awarded by the jury for loss of consortium goes to the non-injured spouse rather than to the couple jointly.

Lastly, Maryland’s cap on non-economic damages applies to claims for loss of consortium. There is no separate cap for this claim. In other words, there is a single cap that applies to all allegations of injuries, whether it’s an injury to the individual or an injury to the marriage.  The Maryland Legislature does not allow a couple to receive more money for injury to the marriage above and beyond the cap, even if a jury decides that that money should be given. Just another example of how Maryland’s cap punishes plaintiffs.

Have you ever suffered an injury that impacted your marriage? Did you file a loss of consortium claim? What was the result?

Related Nash and Associates Links

Maryland’s alleged healthcare “crisis”

Insurance and Traumatic Brain Injury

Acquired Brain Injuries