Articles Posted in Medical Malpractice

Earlier this month, the federal appellate court overseeing Maine district courts issued an opinion in a medical malpractice case. The opinion illustrates the court’s power to exclude evidence if a party fails to comply with the court’s orders. The case raises an important issue for Maine personal injury litigants in that it emphasizes the importance of being familiar with the state’s procedural requirements.

According to the court’s opinion, the plaintiff was seriously injured after she underwent surgery at the defendant hospital. A few years after the surgery, the plaintiff filed a medical malpractice claim against the hospital and several doctors. Early on in the process, the court entered a scheduling order to outline several of the relevant deadlines. The scheduling order provided that the plaintiff must disclose the names of her expert witnesses and the contents of their reports by May 20, 2016. The scheduling order also stated that discovery was to close by November 15, 2016.

The plaintiff timely named one expert witness. At some point after the May 20 deadline, the plaintiff filed a motion to withdraw her case against one of the doctors, claiming that she did not have a case against that doctor. The court granted the plaintiff’s motion. The remaining defendants filed a motion asking the court to exclude the plaintiff’s named expert witness. While that motion was pending, the plaintiff filed a motion to re-join the dismissed doctor. The plaintiff noted that a report from another expert indicated that the dismissed doctor might have been responsible for the plaintiff’s injuries.

Maine’s Supreme Judicial Court recently decided a medical malpractice case resting on a claim that a man’s original misdiagnosis delayed his treatment and caused serious complications. According to the court’s opinion, in August 2012, the plaintiff had had a polyp surgically removed from his colon less than a week before he went to the emergency room at a Maine hospital complaining of abdominal pain. He was seen by the on-call surgeon, who ordered a CT scan. The next morning, a radiologist reviewed the results of the scan and found there were no findings that suggested an anastomotic leak. Later that night, based on the plaintiff’s condition, another surgeon decided emergency surgery had to be conducted, and in the course of that surgery, discovered a small anastomotic leak. The plaintiff was hospitalized and intubated, developed deep venous thrombosis, and had a stroke during his hospitalization.

The plaintiff and his wife filed a medical malpractice claim against the radiologist who interpreted the CT scan, the first on-call surgeon, and the hospital. They alleged that if the anastomotic leak had been identified and treated the night he went to the hospital, he could have avoided many of the resulting complications. A trial court found that the plaintiffs could not prove the claim against the hospital and the radiologist, and a jury found in the surgeon’s favor, and the plaintiffs appealed. They argued that the court should not have found in favor of the radiologist and that a jury could have found that the radiologist was negligent in reading the CT scan, and that his negligence caused the plaintiff’s injuries.

To prove the elements of a medical malpractice claim, the court explained, a plaintiff must show that the defendant departed from a recognized standard of care, proximately causing the plaintiff’s injury. To establish proximate cause in the medical malpractice claim, the evidence must show that the defendant’s’ conduct played a substantial part in causing the injury, and the injury was either a direct result or a reasonably foreseeable consequence of the conduct. The appeals court found that the record was devoid of evidence showing what role the radiologist’s reading of the CT scan played in the development of the man’s complications. Therefore, there was no evidence linking the radiologist’s conduct to the injury that related to the delay in time and the complications he suffered. For that reason, a verdict would have been based on mere speculation in finding that the radiologist’s conduct was the proximate cause of the man’s injuries.

A new study by researchers at Rutgers University Medical School reveals that outcomes in medical malpractice lawsuits vary significantly depending on where in the U.S. the claim is filed. Published in the Journal of Oral and Maxillofacial Surgery, the study analyzed federal litigation data from 43,000 facial trauma medical malpractice cases with payouts totaling $3.8 billion for allegations pertaining to inadequate care in diagnosis, treatment or surgery.

The researchers discovered physicians have the statistical advantage in medical malpractice cases no matter where a person lives. However, the likelihood of success varied significantly by region. For example, in the South, only ten percent of these claims were successful. In the Midwest, courts affirmed 40 percent of these same claims. Researchers concluded there were a few possible explanations, including a “proclivity for Southern judges to dismiss claims.”

Although this might seem discouraging, our Bangor medical malpractice lawyers note that of those cases decided by a jury trial, plaintiffs overwhelmingly did win. Roughly 40 percent of claims analyzed were decided by a jury, with awards ranging from $14,500 to $1.8 million.

Language barriers in health care can be a catalyst to providing health care that fails to meet the accepted standard for that specialty, which Bangor injury attorneys know is how we measure medical malpractice. Maine is not known for being especially diverse, but gains over the last 50 years have been steady, including more than 700 refugees from African countries like Ethiopia and Somalia, as well as migrant workers (primarily from Latin America) and France/Canada. As noted by researchers with Bowdoin College, Portland historically has had the most concentrated population of immigrants, though rising housing rates have meant many new immigrants are settling in newer areas in southern Maine. Although many hospitals are striving to become more culturally and medically competent in order to care for new immigrant patients, the reality is English proficiency and literacy has a big impact on a person’s ability to access health care – from setting up appointments to using public transportation to understanding preventative care.

A study published a few years ago by the University of California, Berkley School of Public Health and the National Health Law Program, reported at least 2.5 percent of medical malpractice claims involved a language barrier that was partially or substantially related to failure to provide appropriate language services. The cases identified involved patients who either died or suffered irreparable harm. Of those who died, two were children and three were adults.

In 32 of the 35 total cases wherein a language barrier was causal in a medical malpractice case, it was alleged the health care providers did not use competent interpreters. Several used family or friends as interpreters, including minor children.  In one instance, it was the decedent child who served as an interpreter before suffering respiratory arrest. In another case, it was the 16-year-old sibling of the child who died who served as an interpreter. At least a dozen of the medical malpractice claims involved alleged failure to help translate important documents. Another child suffered major organ damage, an adult underwent an unnecessary leg amputation and another was rendered permanently comatose.

Maine hospitals, nursing homes and other care providers are struggling to staff enough nurses to provide quality care to patients – something our Portland, Maine medical malpractice lawyers have seen lead to serious and even fatal medical errors. One study published in the Journal of the American Medical Association found that facilities with high patient-to-nurse ratios had higher risk-adjusted patient death and failure-to-rescue rates than those who had more nurses. Nurses who worked at poorly-staffed facilities were more likely to experience burnout, fatigue and job dissatisfaction, which also increased the number of medical errors they were prone to make.

Maine Health Care Facilities Seek Solutions to Nursing Shortage That Threatens Poor Medical Care

Recently, the Portland Press Herald reported a number of hospitals in Maine are getting creative with recruitment efforts, using staffing agencies to draw nurses from overseas, including countries like Jamaica, Nigeria and Ireland. Within the Eastern Maine Healthcare System (more recently changed to Northern Light Health) more than a dozen international nurses have been hired. More than two dozen are still working on a contract basis through a nurse staffing agency, and there is the possibility they’ll be hired by the hospital system after about two years. A dozen more are set to arrive in Maine in the coming months.

Meanwhile, other hospitals are hiring student nurses, giving them a job inside the hospital so they can “earn while you learn,” the idea being they’re more likely to stay in school and complete their degrees if they can earn a living while they’re completing their studies. Summer internships at Maine General, meanwhile, pay student nurses to shadow those working in nursing homes, cancer care units and surgical centers so they are exposed to a wide range of specialties within their field. The same facility allows nurses time to take on quality improvement projects, such as tackling a unit’s problem with patient falls or bedsores, paying them $3,500 to $5,000 upon completion.

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Data released from the Maine Medical Research Center indicates Lyme disease in Maine may be dropping off a bit due to hot, dry weather over the summer. However, this comes, as our Portland medical malpractice attorneys know, after a record-breaking 1,852 cases for the year in 2017. So far this year, 1,069 cases were reported, according to health officials.

Misdiagnosis of Lyme disease remains a cause of substantial consequence. Lyme disease, a bacterial infection spread by ticks, can be cured if treated very aggressively, particularly with early intervention. The hot, dry summers have resulted in lower numbers of ticks this year, which is good news. Unfortunately, people who are misdiagnosed for years suffer extensive health problems – up to and including death. Misdiagnosis of Lyme disease or delayed diagnosis denies a person critical medical intervention necessary to effectively fight the disease.

Misdiagnosis, or an overlooked diagnosis in general, is the most common type of medical malpractice in Maine. It’s important to point out that failure to diagnosis may not in and of itself be the basis for a medical malpractice lawsuit. It is when this failure to diagnose or misdiagnosis results in delayed treatment, improper medical care or no treatment at all – something that worsens a patient’s medical condition and prognosis – that can make such action (or inaction) potentially worth pursuing a Maine medical malpractice lawsuit. Continue reading

The house fire death of a patient who had been discharged from a hospital the previous night was the subject of a Maine medical malpractice lawsuit recently before the Maine Supreme Judicial Court. There was no question the man’s death did not occur while he was on hospital property or under care of medical staffers. The issue was whether the hospital and other defendants were negligent in discharging the patient, whom plaintiffs asserted lacked the capacity to offer informed consent to that discharge.

In Oliver v. Eastern Maine Medical Center, the state high court affirmed the conclusion of the Superior Court, which found the hospital was not negligent in the discharge, despite the fact it was contrary to instructions given by patient’s children as his court-appointed guardians. The question became whether the patient was mentally fit to authorize his own discharge from the hospital.

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Central Maine Medical Center’s safety grade has dropped to one of the lowest in the state, in part because of problems with blood-stream infections. The hospital’s grade dropped from a B to a C — making it one of just two Maine hospital to receive a C grade, according to a recent report in the Press-Herald.

The report by a Washington, D.C. nonprofit reviewed cases of infections from 2016 and 2017 and cases involving bedsores and deaths from treatable complications in 2014 and 2015. It is the third time in recent months the hospital has come under attack as it struggles with bloodstream infections from central lines and catheters inserted into Intensive Care Unit patients. Late last year, Medicare announced it was penalizing CMMC for a second year in a row as a result of high rates of patient injuries and infections.

Hospital Infections a Hidden Risk & Growing Concern

The Lewiston Sun-Journal is reporting that for the second year in a row, the federal government will be penalizing a Central Maine hospital for its failure to curb sky-high rates of patient injuries and infections. The sanctions are being handed out by Medicare, which funds a significant portion of patient care costs. The news doesn’t come as a complete shock, given that the hospital’s accrediting agency released a report weeks earlier saying the facility had failed to enact proper procedures necessary to curb hospital-acquired infections. The provider was given one month to fix this issue or risk losing its accreditation, which could result in even greater funding losses. 

The hospital president released a statement indicating the hospital is working hard to improve on these issues, rather than shy away from them, and it aims to provide a safe space for patients and employees alike.

While it’s positive that the organization appears to be taking responsibility for these shortcomings, our Maine medical malpractice attorneys wouldn’t expect such a forthcoming attitude should a lawsuit arise as a result of these lapses in the standard of care. Most facilities and individual practitioners vigorously fight back against allegations of wrongdoing leading to serious injury, illness, or death of patients. Having an experienced attorney to help navigate such claims is imperative, since they are often much more complex and contentious than many other types of personal injury claims.

An apparent lack of communication between health care providers proved nearly fatal for a Maine man, to whom a jury recently awarded $1.785 million in a medical malpractice claim.

The patient, 71, and his wife, 63, from Millinocket, alleged harm to his health could have been prevented had health care workers acted according to professional industry standards – which is the proof burden required in these cases. The couple sought between $3 million and $3.7 million in damages for medical expenses, pain and suffering, emotional distress and permanent damage to patient’s heart resulting from a months-long delay in treatment in 2010 for a strep infection. In the eight months between when the patient was first seen and when he had to undergo emergency open heart surgery, the infection caused severe damage to the valves in his heart.

The civil trial was heard in the Penobscot Judicial Center before a Superior Court justice.  Continue reading

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