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Professional
Negligence
Volume 18, Number 1
February 2003
Law: Negligence claim does not accrue until
criminal proceedings are final, page 3
Gynecology: Failure to order mammogram
for patient with family history of breast
cancer, page 4
FTCA Liability: Failure to diagnose
bacterial meningitis, page 5
Nursing Home: Failure to follow correct
infection control procedures, page 9
Pharmacy: Improper delivery of medicine
to kidney transplant patient, page 11
˜ ENDOWED BY KRAMER DILLOF TESSEL DUFFY & MOORE ˜ PSYCHOTHERAPY
Legal negligence claim does not accrue until Failure to restrain self-injurious patient plaintiff’s criminal proceedings are final MEDICINE
Failure to protect carotid artery during surgery REAL ESTATE
SECURITIES
Failure to timely issue stock certificates Failure to diagnose diabetic ketoacidosis Untimely diagnosis of testicular torsion ARTICLES
Failure to timely diagnose herniated disk INDEX BY JURISDICTION
COURT DOCUMENT SETS
NURSING HOME
Arbitration agreements signed by deceased OURT DOCUMENT SETS BY TOPIC: HMO
LIABILITY/BLOOD BANK LIABILITY/FTCA
LIABILITY
Failure to follow infection control measures ABSTRACT SETS
Improper evaluation of rehabilitation patient Write an Article for the Reporters
Share your successful litigation strategies with otherATLA members. If you are interested in writing an article for the Professional Negligence Law Reporter or the Products Liability Law Reporter, call Peter Quinn at (800) 424-2725, ext. 222, for a copy ofmanuscript guidelines.
The endower, Kramer Dillof Tessel Duffy & Moore, has no control over the placement of information or the editorial content of PNLR.
Professional
Legal negligence claim does not accrue until
Negligence
plaintiff’s criminal proceedings are final.
Glaze v. Larsen, 55 P.3d 93 (Ariz. Ct. App. 2002).
An Arizona appellate court held that a legal negligenceclaim arising out of a criminal matter does not accrue un- til the plaintiff’s criminal proceedings are final.
Here, an attorney represented a client who was con- victed of sexual abuse. Several years later, a court granted a new trial for the client, who was now represented by dif-ferent counsel. Before the trial was held, the client suc- Prevent injury from occurring . . . cessfully moved to dismiss the charges. Almost a year and Champion the cause of those who deserve redress for a half later, the client brought a legal negligence claim injury to person or property . . . Promote the public good through concerted efforts to Defendant moved for summary judgment, arguing that secure safe products, a safe workplace, a clean plaintiff’s complaint was barred by the applicable two-year environment, and quality health care . . . limitations period for legal negligence claims. The trial Further the rule of law and the civil justice system, and protect the rights of the accused . . . Reversing, the appellate court found that legal negli- gence claims must be brought within two years after a cause Inspire excellence in advocacy through of action accrues. Citing case law, the court also said thatgenerally, this takes place when (1) plaintiff knows or rea- Encourage cooperation among members . . . sonably should know of an attorney’s negligent conduct Advance the common law and the finest and (2) plaintiff’s damages are ascertainable.
The court noted that the issue of when damages are as- certainable in a criminal context is one of first impression Uphold the honor and dignity of the legal profession and the highest standards of in Arizona. Citing case law, the court adopted the approach of courts holding that a cause of action for legal negligencein a criminal context does not accrue until the criminalproceedings against plaintiff are final.
The court reasoned that such an approach promotes ju- President . . . . . . . . . . . . . . . . . MARY E. ALEXANDER dicial economy, provides a bright-line rule, and decreases President-Elect . . . . . . . . . . . . . . DAVID S. CASEY JR.
the likelihood that attorneys and clients will become ad- Vice President . . . . . . . . . . . . . . . . TODD A. SMITH versaries during a criminal proceeding. Moreover, the court Secretary. . . . . . . . . . . . . . . . . . KENNETH M. SUGGS found, its holding is consistent with the requirement thatlegal negligence claims be based on ascertainable damages.
Treasurer . . . . . . . . . . . . . . . . . . . . . . MIKE EIDSON In criminal cases, the court noted, harm to the aggrieved Parliamentarian. . . . . . . KATHLEEN FLYNN PETERSON party is uncertain until the criminal proceedings are ter- Immediate Past President . . . . . . . . . . . LEO V. BOYLE minated in that the criminal defendant is not actually Chair, Publications Committee . . . . ROBERT K. JENNER harmed by attorney negligence until such time.
Thus, the court remanded, concluding that plaintiff had Chief Executive Officer . . . THOMAS H. HENDERSON JR.
*James K. Kerley, Sierra Vista, Ariz.
Editor in Chief . . . . . . . . . . . . . . . . PETER C. QUINN Comment: For a similar ruling, see Apex Towing Co. v. Managing Editor . . . . . . CHRISTINE M. MOLLENAUER Tolin, 41 S.W.3d 118 (Tex. 2001), 16 PNLR 110 (July2001). John H. Glover, Houston, Tex., represented the Contributing Writer . . . . . . . . . LYNNE STERN FEIGES Contributing Editor . . . . . . . . . . . THOMAS SCARLETT Documents in Apex are available through the Court Publications Specialist . . . . . . . . . . . . . . TRINA F. COX Document Sets section at p. 16, courtesy of Mr. Glover.
of Obstetricians and Gynecologists (ACOG) mammogramguidelines, she could not receive one.
About 14 months later, Stewart again asked her gyne- Neurosurgery: Laceration of carotid artery:
cologist to order the test. This request was also refused, Wrongful death: Verdict.
and Stewart did not undergo the test.
She was subsequently diagnosed as having metastatic Nguyen v. Stecher, Colo., Arapahoe County Dist. Ct., No.
breast cancer. She underwent extensive chemotherapy and other treatments, but later died. Stewart, who was 39, issurvived by her husband and two minor children. She had Luong, 54, underwent a cervical diskectomy performed been a receptionist earning about $13,000 annually.
by a neurosurgeon. Afterward, the surgeon allegedly told Her estate sued the gynecologist, alleging he had neg- Luong’s family that he had punctured her carotid artery ligently failed to order a mammogram despite Stewart’s during the surgery. Subsequent studies revealed Luong Two days later, Luong died as a result of her injuries.
Plaintiff’s experts were Fred Duboe, obstetrics/gyne- She had been a dietician earning about $32,000 annually cology, Hoffman Estates, Ill.; Barry Singer, oncology, and is survived by her husband and five adult children.
Norristown, Pa.; and Dennis Devereaux, oncology, Pleasant Luong’s husband, individually and on behalf of Luong Valley, N.Y. Defendant’s experts included Dennis ten- and their children, sued the neurosurgeon, alleging he had failed to adequately protect Luong’s carotid artery during surgery. Plaintiffs’ expert testified that Luong’s carotid ar- tery had been healthy before the operation and could not Comment: In Doe v. Roe Ob/Gyn, Mass., Middlesex County Super. Ct., confidential docket number, Apr. 2002, The jury awarded about $1.34 million, including about Doe, 37, was diagnosed as having breast cancer. After she $540,100 to Luong’s husband for economic damages and died about three years later, her estate sued an obstetri- $160,000 noneconomic damages to each of their children.
cian/gynecologist and a surgeon, alleging failure to time- The court later reduced the noneconomic damages award ly diagnose the cancer in light of Doe’s symptoms, which included breast pain, skin thickening, and swelling. Among Plaintiffs’ experts were Michael J. Dobersen, forensic other things, defendants countered that an earlier diagno- pathology, Littleton, Colo.; Bauer E. Sumpio, vascular sur- sis would not have affected Doe’s outcome. Plaintiff set- gery, New Haven, Conn.; Deepak Awasthi, neurosurgery, tled with defendants before trial for $1 million. *Andrew New Orleans, La.; and Patricia Pacey, economics, Boulder, C. Meyer and *William J. Thompson, both of Boston, Colo. Defendant’s experts were David S. Baskin, neuro- surgery, Houston, Tex., and Neal Aronson, neurosurgery, For other cases involving breast cancer, see Rickman v. Martin, 13 PNLR 190 (Dec. 1998), and Gorman v. LaRoche, 10 PNLR 90 (June 1995).
Documents in Gorman are available through the Court Document Sets section at p. 16, courtesy of plaintiffs’ Documents in this case are available through the Court Document Sets section at p. 16, courtesy of Mr. Chalat.
Obstetrics: Twin delivery: Failure to respond
Gynecology: Failure to order mammogram
to fetal distress, perform timely cesarean sec-
for patient with family history of breast can-
tion: Brain damage: Settlement.
cer: Wrongful death: Verdict.
Zionkowski v. Drayton-Smith, S.C., Aiken County C.C.P., Stewart v. Wojcik, N.Y., Cattaraugus County Sup. Ct., No.
Zionkowski was admitted to a hospital to deliver her twin Stewart’s mother was diagnosed with breast cancer. Shortly babies. She delivered the first baby vaginally and then con- thereafter, Stewart visited her treating gynecologist and re- tinued to labor for over an hour. During this time, the sec- quested a mammogram. She was allegedly told that be- ond baby remained in a transverse lie, and the baby’s heart cause she did not fit into the traditional American College rate dropped to below 100 beats per minute. The treating obstetrician subsequently called for an emergency cesare- count, in light of Austin’s age and symptoms. Had these an section to deliver the second baby.
things been done, plaintiff claimed, the child would have Zionkowski’s daughter suffered hypoxic ischemic en- had more than a 90 percent chance of a positive clinical cephalopathy. As a result, she now has profound develop- The court awarded about $20.34 million.
Zionkowski, individually and on behalf of the child, and Plaintiff ’s experts were David Talan, infectious dis- her husband sued the obstetrician, her employer, and the ease/emergency medicine, Los Angeles, Cal.; Charlene hospital, alleging failure to timely respond to fetal distress Kuzma, life care planning, Wichita, Kan.; and Fred Johnson, and perform a cesarean section. Plaintiffs claimed that the second twin should have been delivered by cesarean sec- tion immediately after the birth of the first baby, and that it was negligence to wait for the child to change position and continue with a vaginal delivery.
The parties settled the case before trial for an undisclosed Comment: For a case alleging improper treatment of a bacterial infection, see Manship v. Coastal Emergency Servs., Plaintiffs’ experts included Sue Kelly Sayegh, maternal- 10 PNLR 151 (Oct. 1995). *Burton Craige and *John fetal medicine, Norfolk, Va., and Michelle Murray, fetal R. Edwards, both of Raleigh, N.C., represented plaintiff heart monitoring/nursing, Albuquerque, N.M.
Documents in Manship are available through the Court Document Sets section at p. 16, courtesy of Mr. Craige.
*Charles L. Henshaw, Jr., Columbia, S.C.
Cardiovascular surgery: Negligent postoper-
United States liability: Emergency medicine:
ative care: Failure to timely repair graft site:
Failure to diagnose bacterial meningitis: Brain
Brain damage: Verdict.
damage: Cerebral palsy: Verdict.
Richardson v. Arom, U.S. Dist. Ct., D. Minn., No. 01- Austin v. United States, U.S. Dist. Ct., N.D. Ala., No. CV- Richardson, 55, underwent heart bypass surgery performed When Austin was six weeks old, he developed a fever of by a cardiac surgeon. While recovering in the hospital’s in- 104 degrees and other symptoms, including liquid stool tensive care unit, he began bleeding and suffered two heart and irritability. His mother took him to a county hospital attacks. The attending nurses notified the surgeon of emergency room, where a physician diagnosed a possible Richardson’s condition and were told to administer blood virus. Austin was sent home, and his mother was instruct- products and various medications. Richardson’s bleeding ed to administer Tylenol and perform sponge baths.
Austin was returned to the emergency room several hours The next morning he underwent surgery, which revealed later with a fever of 101.7 degrees. He was seen by the that one of the graft sites from the first surgery had opened.
same physician, who again sent him home.
The opening was repaired, but Richardson suffered per- That night, Austin was brought to another hospital, manent brain damage from the excessive blood loss. He where he had a seizure and was subsequently diagnosed ashaving bacterial meningitis. Austin was transferred to an Publish Your Case in the
intensive care unit and remained comatose for the next Professional Negligence Law Reporter
three weeks. Now 4, he has been diagnosed as having cere-bral palsy, developmental delays, lower extremity paralysis, Send the case caption and result; facts; plaintiff’s age, occupation, and earnings; injuries; allegations; names Austin’s mother, on his behalf, filed suit against the and cities of plaintiffs’ counsel; and experts for both United States—which funded the emergency room—al- sides to ATLA Professional Negligence Law Reporter, leging liability under the Federal Tort Claims Act, 28 U.S.C.
1050 31st St., N.W., Washington, DC 20007-4499.
§§ 2671 et seq., for the emergency physician’s failure to di- For a faxed copy of a case submission form, call (800) agnose bacterial meningitis. Plaintiff claimed that the physi- 976-2190 and request document 2205. You can al- cian should have administered antibiotics and performed so email us at law.reporter@atlahq.org.
a septic workup, including a spinal tap and complete blood had been a stone cutter earning $20,000 annually but is Aug. 2002, Seleman-Zedan, 63, underwent a liver trans- unable to work due to his injuries. He requires 24-hour plant. When she had an abnormal liver function test, she went to a hospital for an outpatient liver biopsy. The test Richardson and his wife sued the surgeon and his prac- was performed by a gastroenterology (GI) resident, who tice, alleging failure to timely come to the hospital and pro- failed to obtain biopsy tissue after inserting the biopsy nee- vide adequate postoperative care in light of Richardson’s dle in several locations. During one of these attempts, the resident punctured Seleman-Zedan’s lung, causing her to The parties reached a confidential pretrial agreement aspirate her own blood and suffocate. Her estate sued the with defendants, who admitted liability. The jury then hospital, alleging, among other things, defendant had vi- olated its own protocol that expressly forbids inexperienced GI residents from performing liver biopsies on liver trans- plant patients. The jury awarded $2.5 million. Plaintiff’s *William M. Fishman, Minneapolis, Minn.
experts were Joseph Awad, hepatology, Nashville, Tenn.,and John F. Burke, economics, Cleveland, Ohio. *CharlesKampinski and *Laurel A. Matthews, both of Cleveland,Ohio, represented plaintiff.
Hematology: Oncology: Negligent bone mar-
row aspiration: Lack of informed consent:
Pain: Future surgery: Verdict.
Pediatrics: Hospital liability: Failure to diag-
Furey v. Jennis, N.J., Bergen County Super. Ct., No. 7579- nose, treat diabetic ketoacidosis: Brain dam-
age: Settlement.
Furey, 42, volunteered to donate bone marrow through Crowe v. Provena St. Therese, Ill., Lake County Cir. Ct., the National Marrow Donor Program. He consented to an operation involving placement of two needles into hispelvis to extract bone marrow from two posterior iliac crests.
Crowe, 15 months, experienced heavy breathing, conges- He also consented to the risk of soreness lasting for up to tion, vomiting, and weight loss over a 10-day period. Her mother took her to a pediatrician, who sent her to a hos- The hematologist and oncologist who performed the pital. More than five hours after she arrived, nurses allegedly surgery placed two five-and-a-half-inch aspiration needles administered insulin, noting that Crowe had abnormal into Furey’s pelvis and penetrated one of his sacroiliac joints.
neurological signs and a worsening condition.
As a result, he suffered permanent injuries, including dai- A few hours later, one of the pediatrician’s partners al- ly pain and discomfort. He now is required to take anti- legedly called the hospital and ordered that saline be omit- inflammatory medication and is likely to require future sur- ted from Crowe’s intravenous solution. The first pediatri- cian subsequently discontinued Crowe’s insulin, an order Furey had been an active sportsman but is no longer which was not changed by his two partners when they al- able to engage in these activities due to his injuries.
Furey and his wife sued the physicians, alleging they had Crowe later suffered a seizure. She was transferred to negligently performed the surgery and failed to obtain in- another hospital and remained in a coma for several days.
formed consent in that defendants never advised of the risk Now 10, Crowe has behavioral problems resulting from brain damage she suffered while hospitalized.
Plaintiffs did not claim lost wages.
Crowe sued the hospital and the three treating pedia- Defendants admitted liability, and the case proceeded tricians and their practice, alleging failure to diagnose and to trial on the issue of damages. The jury awarded plain- treat diabetic ketoacidosis. Among other things, plaintiff tiffs $9.7 million, including $700,000 to Furey’s wife.
charged that (1) a pediatrician should have examined her Plaintiffs’ experts were Samuel Snyder, orthopedic sur- when she came to the hospital and when her condition gery, and Richard Balch, physical therapy, both of Fairlawn, failed to improve, (2) she should have been promptly trans- N.J. Defendants’ expert was Howard Blank, orthopedic ferred to a children’s hospital, and (3) two of the physi- cians should have corrected the second pediatrician’s saline change and not discontinued the insulin.
The parties settled before trial for $4.25 million. The Comment: In the case of Zedan v. Cleveland Clinic pediatricians and their practice paid $2.9 million, and the Found., Ohio, Cuyahoga County C.C.P., No. 374294, Plaintiff’s experts included Peter Chase, pediatric dia- Neurology: Internal medicine: Failure to time-
betes, Denver, Colo.; Kenneth Swaiman, pediatric neu- ly diagnose herniated disk: Paraplegia: Settle-
rology, Minneapolis, Minn.; Thomas Naidich, pediatric ment: Verdict.
neuroradiology, New York, N.Y.; Rudy Lorber, neuropsy-chology, Highland Park, Ill.; and David Wyatt, pediatric Tinsley v. SSM Health Care St. Louis, Mo., St. Louis City Cir. Ct., No. 992-01582, June 10, 2002.
Defendants’ experts were Bernard Silverman, en- docrinology, Boston, Mass.; Nicole Glaser, endocrinolo- Tinsley, 44, experienced numbness in her legs. She went gy, Davis, Cal.; Stephen Duck, endocrinology, Evanston, to a hospital emergency room, where she was seen by an Ill.; Ruth Ramsey, neuroradiology, Chicago, Ill.; and Mark internist and a neurologist. Tinsley underwent an MRI and About 30 hours later, she was transferred to another hos- *Robert S. Baizer, Highland Park, Ill.
pital and was subsequently diagnosed as having a herniat- *Brian J. Lewis, Highland Park, Ill.
ed disk. She underwent surgery but suffered paraplegia atT7 as a result of spinal cord compression from the herni-ated disk.
A payroll manager earning approximately $48,000 an- Emergency medicine: Hospital liability: Failure
nually, Tinsley missed nine months of work as a result of to timely diagnose testicular torsion: Loss of
testicle: Future infertility: Verdict.
Tinsley and her husband sued the employers of the two physicians and a third defendant, alleging failure to time- Campbell v. Freas, Pa., Philadelphia County C.C.P., Nov.
ly diagnose and treat the herniated disk. Plaintiffs claimed that the MRI that was performed was not specific enoughto look for a problem as subtle as Tinsley’s and that the Campbell, 23, went to a hospital emergency room com- test should have focused on another area in light of her plaining of left-sided testicular pain. A physician took Campbell’s history, performed a physical examination, and The third defendant settled before trial for an undis- diagnosed a bacterial infection. Campbell was discharged with a prescription for antibiotics.
The jury then awarded $7.5 million, finding the neu- A few days later, Campbell returned to the emergency rologist’s employer 50 percent responsible; the internist’s room with complaints of continued pain and swelling. An employer 15 percent responsible; and the third defendant ultrasound was then performed, and he was diagnosed as having testicular torsion. Campbell underwent emergency The jury award allocates $500,000 to Tinsley’s husband surgery, but his testicle was unable to be salvaged. Over subsequent months, the testicle shrunk and eventually dis- Plaintiffs’ expert witnesses in this case were Wilbur appeared. Campbell subsequently took several sperm analy- Swearingin, vocational rehabilitation; Terry Winkler, life sis tests, some of which were abnormal, and has been told care planning; Cliff Whipple, psychology; and Larry Cox, that he would have a difficult time conceiving a child.
economics, all of Springfield, Mo.; Robert Silvers, neurol- Campbell sued the emergency room physician and the ogy, Columbia, Mo.; and Lawrence Pitts, neurosurgery, hospital—under a vicarious liability theory—alleging fail- ure to timely diagnose testicular torsion. Plaintiff claimed Defendants’ experts in this case were Rebecca Summary, the physician had negligently relied on a history and phys- economics, Cape Girardeau, Mo.; and Richard Katz, life ical examination to rule out testicular torsion and failed to care planning; Karen Pentella, neurology; David Kennedy, (1) order an ultrasound or other scan, (2) consult a urol- neurosurgery; and Daniel Scodary, neurosurgery, all of St.
ogist, and (3) instruct plaintiff to return to the hospital the next day if his pain and swelling did not subside.
Plaintiff’s expert was Peter Collis, emergency medicine, Rehoboth Beach, Del. Defendants’ experts, both of Comment: For another case alleging failure to diagnose Philadelphia, Pa., were Bernard Lopez, emergency medi- a herniated disk, see Petrides v. Goodgold, 11 PNLR 49 cine, and Victor Carpiniello, urology.
(Apr. 1996). *Martin H. Weisfuse, New York, N.Y., rep- *Slade H. McLaughlin, Philadelphia, Pa.
Documents in Petrides are available through the Court *James E. Beasley Jr., Philadelphia, Pa.
Document Sets section at p. 16, courtesy of Mr. Weisfuse.
Obstetrics: Midwife negligence: Mishandled
Comment: See alsoWhite v. Cook County, Ill., Cook delivery: Failure to order timely cesarean sec-
County Cir. Ct., No. 99 L 4308, Apr. 15, 2002. There, tion: Brain damage: Cerebral palsy: Verdict.
White, 22, was admitted to a county hospital to deliver herfirst child. White, who had preeclampsia, was administered Tate v. Hubbert, Ga., Muscogee County Super. Ct., No.
magnesium sulfate for about 12 hours. Shortly after nurs- es disconnected the magnesium sulfate intravenous line,White suffered cardiac and respiratory arrest. Tate, whose first child had been delivered by cesarean sec- White’s daughter was then delivered using high forceps tion, experienced sudden vaginal bleeding at the end of and vacuum extraction while White was being resuscitat- her second pregnancy. She went to a hospital, where she ed. The child was born in a severely depressed condition was examined by a nurse midwife, who consulted by tele- and was later diagnosed as having suffered birth asphyxia.
phone with Tate’s treating obstetrician.
Tate was admitted to the hospital. The next morning, The child, through guardians, and White’s parents filed she was given Pitocin to induce labor. Over the next sev- suit against the county, alleging its nurses had failed to eral hours, signs of fetal distress occurred, including vari- properly clamp off the line, causing White to receive a dead- able and late decelerations. The obstetrician arrived at the ly magnesium sulfate overdose. Defendant reportedly as- hospital more than five hours after labor was induced and serted that, among other things, White had not received delivered Tate’s son by cesarean section.
a lethal overdose and that the cause of her death was a com- The child was born in a depressed condition and in need of resuscitation. His Apgar scores were zero at one minute The parties settled for $15 million. *Robert J. Napleton and one at five minutes. Now 3, he has been diagnosed as and *Kevin J. Golden, both of Chicago, Ill., represented having brain damage and requires occupational and phys- ical therapy as well as 24-hour care.
Tate, her husband, and their son sued the midwife, the obstetrician, and their employers, alleging that the obstet-rics defendants had negligently (1) admitted Tate to the Hospital liability: Internal medicine: Negligent
hospital without examining her; (2) permitted the midwife postoperative care: Stroke: Brain damage:
to exceed her professional scope by giving her primary re- Settlement.
sponsibility for the care of Tate, who was not a candidatefor independent nurse midwifery in light of her unexplained Doe v. Roe, Mich., confidential court and docket number, vaginal bleeding and status as a VBAC patient; and (3) mis- managed the delivery by failing to arrive at the hospitalsooner and call for a timely cesarean section.
Doe, 58, underwent hip surgery. Over the next 24 hours, Suit against the midwife and her employer alleged mis- she became disoriented and suffered psychotic outbursts.
handling of the delivery and failure to adequately consult Hospital staff strapped her to her bed and administered antipsychotic medication. Her vital signs indicated a dete- The parties reached a high-low agreement with the mid- wife and the obstetrician and his employer during trial. The The next day, Doe developed a fever, and diagnostic tests jury awarded about $12 million, including $2 million to were ordered. Before the results came back, she suffered a stroke while unattended in her bed. Staff resuscitated Plaintiffs’ experts were Pamela M. Ferguson, midwifery, Doe, but she remained in a coma for a month.
Atlanta, Ga.; Stephen K. Klasko, obstetrics, Allentown, Pa.; Doe suffered brain damage as a result of her injuries and James A. Barfield, pediatric neurology, Gainesville, Ga.; Kathryn Willard, vocational rehabilitation, Lawrenceville, Doe sued an internist, alleging he should have (1) or- Ga.; and John E. Brown, economics, Atlanta, Ga.
dered timely diagnostic testing in light of her postopera- Defendants’ experts were Maureen Kelly, nurse mid- tive symptoms and (2) transferred her to the intensive care wifery, Decatur, Ga.; William Simpson, obstetrics, unit, where she could have been more carefully monitored Columbus, Ga.; Julie B. Schmidt, obstetrics, Lincolnwood, Ill.; and Virginia Taylor Floyd, obstetrics, Atlanta, Ga.
Plaintiff also sued the hospital, alleging its internist had been negligent in ordering restraints without examining The hospital reportedly argued that its staff had followed the internist’s instructions. Defendant also reportedly as- serted that Doe’s stroke could not have been averted.
The parties settled for about $1.11 million. The internist Rehabilitation patient develops infection:
paid $195,000, and the hospital paid the rest.
Failure to follow infection control measures,
identify sore: Multiple surgeries: Verdict.
*Steven E. Goren, Bingham Farms, Mich.
Bennett v. Silver Spring-Wheaton Nursing Home, Inc., Md.,Montgomery County Cir. Ct., No. 200758, Oct. 25, 2002.
Bennett, 76, underwent hip replacement surgery and wastransferred to a nursing home for rehabilitation. About a Arbitration agreements signed by deceased
day and a half later, staff noted that Bennett had a pressure resident’s children were unenforceable.
After a few weeks, Bennett developed a wound infec- Pagarigan v. Libby Care Ctr., Inc., 120 Cal. Rptr. 2d 892 tion. She later underwent several irrigations and debride- ments, but the procedures were unsuccessful. This neces-sitated that Bennett have her hip prosthesis surgically re- A California appellate court held that nursing home oper- moved. As a result, she was immobile until undergoing a ators sued over the death of a resident could not enforce successful hip replacement 18 months after the first. She arbitration agreements signed by the resident’s children.
now suffers leg shortening, requires a walker, and also us- Here, a woman in a comatose state was admitted to a nursing home. About a week later, her daughters signed Bennett sued the nursing home, alleging she had con- two arbitration agreements with the home, each of which tracted a methicillin resistant staph aureus infection be- covered potential negligence or other tort suits. The woman cause of the failure of defendant’s employees to follow later died of an infection after developing severe pressure proper infection control measures, including adequate hand sores. Her children sued the home’s operators, alleging washing. Plaintiff also charged that defendant’s staff should elder abuse and other claims. Defendants filed a petition have timely advised the treating physician of the bedsore, to compel arbitration, which the trial court denied.
which plaintiff claimed was the point of entry for the in- Affirming, an appellate court concluded that defendants fection. The jury awarded $1.3 million.
had not proved the daughters had any authority to enter Plaintiff’s experts were Ronald J. Ross, internal medi- into an arbitration contract on their mother’s behalf.
cine, Solomon’s Island, Md.; James Noble, infectious dis- Defendants—who carry the burden of proving the arbi- ease, Concord, N.H.; and Nancy Lenaghan, nursing, Spring tration agreement’s validity—admit that plaintiffs’ moth- Lake, N.J. Defendant’s experts were Richard Bennett, geri- er did not sign the agreement and was mentally incompe- atrics, Baltimore, Md., and Richard Berg, infectious dis- tent at the time she was admitted to the home. Moreover, the court found, there was no evidence the mother had signed a durable power of attorney that would have au- thorized the daughters to sign an arbitration agreement.
Comment: For a case involving a nursing home resident The court rejected defendants’ argument that the daugh- who developed ulcers under her leg cast, see Gibson v. ters’ seeming representation of their mother made the Appleton City Manor, 14 PNLR 93 (June 1999). *Tim agreements valid. A person cannot become someone’s Dollar and *Tim Becker, both of Kansas City, Mo., rep- agent merely by representing themselves as such, the court found. There must be evidence the principal intentional- Documents in Gibson are available through the Court ly caused a third person to believe such an agency rela- Document Sets section at p. 16, courtesy of Mr. Becker.
Additionally, the court found, the daughters’ status as Back Issues Available
their mother’s next of kin does not make the arbitrationagreements valid. Analyzing state regulations and statutes ATLA can provide back issues of TRIAL, the that authorize next of kin to take various other actions, the ATLA Advocate, and the Law Reporter. For a court concluded there was no evidence the legislature in- six-month period after issue date, back issues will be tended to allow such persons to bind nursing home resi- provided at no charge. Between six months and one year after issue date, back issues will cost $10 each.
Publications requested more than one year after issue date will be provided for $20 each. To order *Carol S. Jimenez, Los Alamitos, Cal.
Patient develops pressure sores, becomes mal-
abuse under Cal. Welf. & Inst. Code §§ 15600 et seq. nourished: Improper evaluation, treatment:
Among other things, plaintiff alleged that defendant’s staff Wrongful death: Settlement.
had failed to (1) properly nourish and hydrate her, (2) pro-vide social activities, (3) adequately meet her daily hygiene Trejo v. Centennial Healthcare Corp., Mo., Jackson County needs, (4) provide physical therapy, and (5) properly treat Cir. Ct., No. 01-CV-217381, July 31, 2002.
the pressure sores. Plaintiff claimed that staff had left herin her bed and did not provide assistance at meals, despite Less than two months after Garcia, 84, was admitted to a the fact that she was heavily medicated and unable to feed nursing home for rehabilitation, he was hospitalized in se- herself. The jury awarded $3 million.
rious condition. Among other things, Garcia had become Plaintiff’s experts were Loren Lipson, geriatrics, Los malnourished and developed several pressure sores, in- Angeles, Cal., and Roberta Bloch, nursing, Sacramento, cluding one on his left heel that had progressed to Stage Cal. Defendant’s geriatrics expert was Eric Disbrow, III. Due to his preexisting injuries, Garcia was unable to withstand life-saving medical treatment, and he subse- quently died. He is survived by his three adult children.
They sued the nursing home owner and its subsidiary, alleging failure to properly evaluate, treat, and superviseGarcia. Plaintiffs claimed that by the time Garcia was ad-mitted to the hospital, his condition was so critical that it Skilled nursing facility: Improper medication
was too late to save his life. Additionally, plaintiffs charged change, monitoring: Physician, nursing neg-
defendants had failed to prevent Garcia from falling while ligence: Wrongful death: Verdict.
Defendants reportedly countered that Garcia’s deterio- O’Gorman v. Village North, Inc., Mo., St. Louis City Cir.
rating condition was an unavoidable consequence of his The parties settled for $500,000. The owner paid After O’Gorman, 87, was treated at a hospital for a hip $450,000, and the subsidiary paid the rest.
fracture, she was admitted to a skilled nursing facility for Plaintiffs’ experts in this case were Jonathan M. Evans, rehabilitation. About a week later, she met with the facili- geriatrics, Charlottesville, Va., and Beth Alford, nursing, ty’s medical director, who was designated her primary care physician. Among other things, the physician decreased O’Gorman’s prescription for Lasix—a diuretic.
*Randy W. James, Overland Park, Kan.
Several days later, O’Gorman’s condition deteriorated.
Michael J. Svetlic, Lee’s Summit, Mo.
She was taken by ambulance to a hospital, where she wasdiagnosed as having edema. The next day, O’Gorman died.
She is survived by her six adult children.
They sued the owner and operator of the facility, alleg- Rehabilitation: Foot amputee develops bed
ing liability for its nurses’ failure to timely assess O’Gorman’s sores: Elder abuse: Leg amputations: Verdict.
condition after the medication change and notify her physi-cian. Plaintiffs argued that O’Gorman had died from con- Ollison v. Escaton, Cal., Sacramento County Super. Ct., gestive heart failure brought on by fluid retention. Had the nurses weighed O’Gorman daily, plaintiffs asserted, itcould have been ascertained whether she was retaining ex- Ollison, 82, suffered from diabetes and visual impairment.
cess fluid. Suit also alleged the physician was liable for im- After undergoing a left mid-foot amputation, she was ad- properly changing O’Gorman’s medication.
mitted to a nursing home for rehabilitation. After several The jury awarded $432,500. It found the physician was weeks, Ollison developed a wound infection, necessitating 60 percent liable and the facility 40 percent at fault.
an above-the-knee amputation of her left leg. While hos- Plaintiffs’ experts were James McClure, causation, pitalized, she was diagnosed as having pressure sores on Evanston, Ill., and Judith Britt, nursing standards, Garner, N.C. Defendants’ experts were Thomas Hyers, pulmonary After the surgery, Ollison was transferred back to the diseases, and Charles A. Crecelius, standard of care, both nursing home. The heel subsequently became infected, of St. Louis, Mo.; and Randall D. Huss, cause of death, and she underwent a below-the-knee amputation of the Ollison sued the nursing home’s owner, alleging elder the pharmacy that filled the prescription, alleging negli-gent misfilling. Plaintiffs claimed that the overdose hadcaused Deal to suffer congestive heart failure, resulting in Pharmacy misdelivers prescription: Patient
takes incorrect dosages: Negligence: Paralysis:
A first trial resulted in a hung jury. After the case was re- Structured settlement.
Plaintiffs’ expert on causation was Joseph Burton, Modersohn v. Osco Drug, Inc., Ill., Winnebago County Cir.
Modersohn, 17, underwent a kidney transplant and was required to take anti-rejection medicine. The pharmacy Comment: For a similar case, see Thomas v. Travelers Co., that filled her prescription allegedly delivered only part of 12 PNLR 12 (Feb. 1997). *C. Scott Carter and *Charles the order, causing Modersohn to take incorrect dosages O. Taylor, both of Metairie, La., represented plaintiff.
of the drug. As a result, she later suffered paralysis, which Documents in Thomas are available through the Court Document Sets section at p. 16, courtesy of Mr. Carter.
She sued the pharmacy, alleging negligence. Defendant denied liability and contended Modersohn’s own negli-gence had caused her injury.
The parties mediated a structured settlement before tri- al with a present value of $3.5 million. The settlement hasan estimated lifetime payout of about $18 million.
Hospital liability: Nursing negligence: Failure
Plaintiff’s experts were Ann Lovegrove, life care plan- to restrain, improper monitoring of self-in-
ning, Madison, Wis.; Charles Linke, economics, Cham- jurious patient: Quadriplegia: Verdict.
paign, Ill.; and Samuel Saltzburg, nephrology; HaroldKessler, infectious disease; James O’Donnell, pharmacy; Dickinson v. St. Marys Hosp., Wis., Dane County Cir. Ct., and Gary Yarkony, physiatry, all of Chicago, Ill.
Dickinson, 46, suffered from suicidal ideations and was di- agnosed as having mental illnesses, including bipolar andschizo-affective disorders. After having a psychotic episode,he was taken to a hospital emergency room. There, he wasexamined and released with instructions to take medica- Blood pressure medication: Misfilled pre-
scription: Negligence: Heart failure: Wrongful
Several hours later, he ran into a patio door and repeat- death: Verdict.
edly banged his head into the floor. He was returned byambulance to the hospital, where he was placed on a gur- Deal v. Rite Aid Corp., Ala., Montgomery County Cir. Ct., ney. Left alone, Dickinson jumped off the gurney and at- tempted to ram his head into a sink.
Guards then began to watch Dickinson, who continued Deal, a diabetic, took the drug Lopressor to lower her to exhibit violent behaviors, including yelling, kicking, and blood pressure. Her prescription—which she had been fill- hitting other people. After being injected with Haldol, ing at the same pharmacy for several years—required her Dickinson was transferred to the hospital’s psychiatric ward to take one 50 mg tablet three times per day.
Deal was mistakenly given a bottle of Lopressor that Nurses were told of his history of danger to himself and contained 100 mg tablets but was labeled as having the 50 his unpredictability. Dickinson was then placed in a room mg pills. She took the increased dosage for several weeks with one nurse, and the security guards were released. While and suffered gastric pain, nausea, confusion, and other there, Dickinson had another psychotic episode in which he smashed his hand into a wall. The nurse left him alone, Her daughter then discovered the mistake, and Deal re- and he began pacing and yelling. He subsequently dove sumed taking the correct dosage. Several days later, how- off his bed into a window, breaking his neck.
ever, Deal, 78, suffered a fatal heart attack. She is survived As a result, Dickinson is a C6-7 quadriplegic requiring 24-hour care. He had been working as a teacher earning The son and daughter, on behalf of Deal’s estate, sued He sued the hospital, alleging it was liable for its own unable to live independently. He is unable to return to his negligence and that of its nurses. Specifically, suit claimed job as a postal worker earning about $33,000 annually.
that defendants had failed to (1) prevent Dickinson from Doe sued Roe, alleging he had (1) improperly prescribed hurting himself, (2) place him in restraints or under con- the benzodiazepines in light of Doe’s history of alcoholism, stant guard, and (3) provide enough medication to ade- (2) failed to adequately treat the alcoholism, and (3) failed to discontinue the prescriptions when it became clear Doe The jury awarded about $12.7 million, which the judge had become addicted to and was abusing the drugs.
reduced under the state’s damages cap. The total recovery The parties settled before trial for $435,000.
is about $6.66 million. One million dollars will be paid by the hospital’s insurer, and the state compensation fund will Plaintiff ’s experts were Phillip Resnick, psychiatry, Cleveland, Ohio; Thomas Gutheil, psychiatry, Cambridge,Mass.; and Greg Van Ry-Broeck, psychology, Madison, Suicidal patient: Improper assessment, dis-
Wis. Defendant’s experts were Ken Tardiff, psychiatry, New charge: Wrongful death: Verdict.
York, N.Y.; Ken Robbins, psychiatry, Madison, Wis.; andWarren Olson, psychiatry, San Luis Obispo, Cal.
Wall v. Chisholm Trail Counseling Servs., Okla., Grady County Dist. Ct., No. CJ 2001 296, May 17, 2002.
*Stephen J. Eisenberg, Madison, Wis.
Pam Baumgartner, Madison, Wis.
Police encountered Phillips in a public place, appearing Comment: For a case alleging improper restraint of a dazed and inebriated and holding a gun. They then dis- mental health treatment center resident, see Colwell v. Baker, covered he had written a suicide note. Phillips was brought 14 PNLR 15 (Feb. 1999). *Robert L. Langdon and to a private mental health facility that contracted with the *Bradley D. Kuhlman, both of Lexington, Ky., and *Donald P. Thomasson, Cape Girardeau, Mo., represent- There, a counselor spoke to Phillips for about 30 min- utes and asked him to sign a contract stating he would not Documents in Colwell are available through the Court kill himself if released. Phillips was discharged and fatally Document Sets section at p. 16, courtesy of Mr. Langdon.
Phillips, 55, had been a machinist earning $55,000 an- nually and is survived by his wife and three adult children.
One of Phillips’s daughters, on behalf of his estate, sued Psychiatry: Improper prescription of benzo-
the facility and the counselor, alleging negligence. Plaintiff diazepines: Addiction: Leg amputation:
claimed defendants had failed to adequately assess Phillips Overdose: Settlement.
for suicide, improperly released him, and failed to send himto a hospital for observation. Plaintiff also asserted defen- Doe v. Roe Psychiatrist, Va., Fairfax County Cir. Ct., con- dants should have contacted Phillips’s family about his vis- The jury awarded $1.5 million, finding defendants joint- Doe, 52, had a history of alcoholism. He sought treatment from Roe, a psychiatrist, who allegedly diagnosed depres- Plaintiff ’s experts were Douglas Jacobs, psychiatry, sion and prescribed a benzodiazepine. Doe began seeing Cambridge, Mass., and Joseph Ripperger, psychiatry, Roe at least once a month and received continued pre- Norman, Okla. Defendants’ expert was Paul Somerville, scriptions for various drugs in the benzodiazepine fami- ly—including Valium—for more than two years.
During this time, Doe’s depression worsened to the point where he was placed on disability. He also showed signs of addiction, including taking the prescribed drugs Comment: For a case holding that a psychiatrist and clin- at a faster rate than recommended and asking Roe to re- ic may be liable for negligently treating an outpatient who fill his Valium prescription specifically.
committed suicide, see Kockelman v. Segal, 71 Cal. Rptr.
Doe was later involved in a car accident and fell down 2d 552 (Ct. App. 1998), 13 PNLR 73 (May 1998). John some stairs, necessitating an above-the-knee leg amputa- F. Schuck, Palo Alto, Cal., represented plaintiff. See also tion. He subsequently attempted suicide by taking an over- O’Sullivan v. Presbyterian Hosp., 634 N.Y.S.2d 101 (N.Y.
App. Div. 1995), 11 PNLR 32 (Mar. 1996). *Stephen R.
Doe has undergone treatment for his addictions, but is Krawitz and *Frank P. Mangiatordi, both of New York, N.Y., represented plaintiff in this case. entity, with the help of a transfer agent. Doe sent his pa- Documents in Kockelman and O’Sullivan are available perwork to the transfer agent shortly after the merger. through the Court Document Sets section at p. 16, cour- Additionally, Doe told his friend that he wished to sell his shares of stock in the new company as soon as he re-ceived them from the transfer agent. The friend allegedlyurged Doe to reconsider this decision. When Doe refused, the friend allegedly told him about an upcoming second-ary stock offering and how, based on the fact that Doe wasnow privy to this insider information, he was therefore pre- Developer liability: Seaside condominium:
cluded from selling his stock until after a formal an- Exterior window, door leakage: Building code
violations: Defects: Settlement: Verdict.
Doe was not able to effectuate his intended stock sale for more than a month after the corporate merger. By the Presidential Place Condo. Ass’n v. Presidential Place Partners, time Doe received his shares, the stock price had declined Ltd., Fla., Palm Beach County Cir. Ct., No. CL 98-06877 at least $40, causing Doe to suffer $9.5 million in eco- Doe sued the two companies, the friend, and the stock Several dozen condominium owners at a beachfront high- transfer agent, alleging defendants had intentionally de- rise experienced water and air leakage through glass door layed issuing Doe’s shares of stock in the new company.
and window assemblies exposed to wind and rain. An in- Defendants reportedly countered that the stock transfer vestigation revealed that some of the assemblies had rust- had been timely and asserted that Doe had suffered no eco- ed and deteriorated from exposure to salt-laden moisture.
nomic losses in that the share price was in fact lower on the The condominium association sued the building’s de- day of the merger than on the day Doe actually received veloper, alleging breach of warranty and violations of the standard building code. Plaintiff asserted that the assem- blies required not remediation, but replacement at a cost Plaintiff’s experts in this case were Carl Hagberg, stock of several million dollars. Plaintiff also asserted claims for transfers, Jackson, N.J.; Jordan Burkart, investment bank- construction defects regarding the building’s roof, plumb- ing, Los Angeles, Cal.; and Peter Formuzis, economics, ing, and stucco finish, among other things.
The parties settled the latter claims at mediation for $632,000. A jury then awarded about $4.25 million.
*Bruce A. Broillet, Santa Monica, Cal.
Plaintiff’s experts were Sheldon Israel, contract specifi- cations, Boca Raton, Fla.; A.A. Sakhnovsky, high-rise win- dows and walls, Miami, Fla.; and Terry Lunn, structuralengineering, North Palm Beach, Fla. Defendant’s expertswere Ivar Hennings, glazing, Palm Beach Gardens, Fla., Litigation Groups Offer Winning Support
and Ballard Argus, engineering, Pompano Beach, Fla.
Litigation groups provide a network for ATLA mem- bers handling similar cases to exchange information *William J. Cornwell, Boca Raton, Fla.
and share successful strategies. There are groups onevery topic, from AIDS to workplace injury. Just afew include: Corporate merger: Failure to timely issue stock
certificates: Economic losses: Settlement.
• Inadequate security• Tire-rim mismatches Doe v. Roe Corps., Cal., Los Angeles County Super. Ct.,confidential docket number, May 14, 2002.
To join a group or for more information, call (800)424-2725, ext. 306. For a complete list of groups, Doe held stock in a privately held company owned by a call Fax-on-Demand at (888) 267-0770 or (800) friend. When this company was purchased by a publicly traded company, all outstanding shares of the acquiredcompany were to be converted into equal shares of the new SEC proposes new disclosure requirements
ney who has not received an appropriate response from the for securities lawyers
issuer and, in certain instances, requires or permits a “noisywithdrawal” from representation—disaffirmance of a sub- The Securities and Exchange Commission (SEC) has pro- mission to the SEC without violation of the attorney-client posed new standards of professional conduct for attorneys privilege. The rules would impose an affirmative obliga- who represent stock issuers and appear before the tion on attorneys to disaffirm a document or filing where commission. The new rules would require an attorney to they believe that violations are ongoing or prospective.
report evidence of a material violation of the securities laws, The regulation would allow an attorney to reveal con- or a breach of fiduciary duty, to the chief legal officer (CLO) fidential information to the SEC to the extent necessary or the chief executive officer of the company the attor- to prevent the commission of an illegal act that the attor- ney represents. If these officials do not respond appro- ney reasonably believes will result either in perpetration of priately to the evidence, the rules would require the at- fraud upon the SEC, or in substantial injury to the finan- torney to report the evidence to the company’s audit com- cial or property interests of the issuer or another. Similarly, mittee, another committee of independent directors, or the attorney would be allowed to disclose confidential in- the full board of directors. The rules are designed to im- formation to rectify an issuer’s illegal actions when such plement the Sarbanes-Oxley Act of 2002, Pub. L. No. 107- actions have been advanced by the attorney’s services. 204, 116 Stat. 745, which was enacted in response to rev- If the proposal is approved, violators would be subject elations of unethical conduct in the financial world.
to injunctions and cease and desist orders, and could also The proposed rules aim to protect investors by impos- be barred from serving as officers and directors of compa- ing disclosure requirements on all attorneys who appear nies. The full text of the detailed release concerning this or practice before the SEC on behalf of a stock issuer. The proposal is available at the SEC’s Web site, www.sec.gov. rules adopt an expansive view of who is subject to them,covering all attorneys who are admitted, licensed, or oth-erwise qualified to practice law, whether employed in-houseby an issuer or retained to perform specific legal work. Tax preparer settles suit and issues coupons
Under the proposed rules, an attorney would be deemed to represent an issuer as an entity, rather than the officers H&R Block Inc. (Block) will give 700,000 customers re- or others with whom the attorney interacts in the course bate coupons for tax preparation services as part of a set- of that representation, and the attorney would be obligat- tlement in a class action lawsuit in Texas. The suit alleged ed to act in the interest of the issuer and its shareholders.
that Block failed to disclose that a bank offering refund an- The proposed rules would not require an attorney to be ticipation loans to Block’s clients was paying the tax pre- certain that a violation has occurred before acting. The parer a franchising fee. (Haese v. H&R Block, Inc., Tex., rules’ reporting obligation is triggered when an attorney Kleberg County Dist. Ct., No. 99-314, settlement an- “reasonably believes” that a material violation has occurred, is occurring, or is about to occur. The attorney would ini- The settlement, for which court approval is pending, tially be directed to make a report to the issuer’s CLO, or would apply to all related suits in Texas stemming from to the issuer’s CLO and chief executive officer. The attor- Block’s lack of disclosure of licensing and marketing fees ney also would be obligated to take reasonable steps to it received from Household International, Inc. A banking document the report and the response.
subsidiary of Household issued high-interest loans to Block A CLO who reasonably concludes that there has been customers who wanted to receive their expected tax refund no material violation would have to provide notice to the money immediately, rather than wait weeks for the gov- reporting attorney of this conclusion. A CLO who con- ernment to process their returns. Block will send coupons cludes that a material violation has occurred, is occurring, to 700,000 people in Texas who received the so-called re- or is about to occur would be required to take reasonable fund anticipation loans between 1992 and 1996. The steps to ensure that the issuer adopts appropriate remedi- coupons would consist of five $20 credits that can be used al measures or sanctions, including appropriate disclosures toward tax preparation services. In addition, the company to the SEC itself. The CLO would also be required to re- would send coupons redeemable for tax guide books and port “up the ladder” within the issuer what remedial meas- computer software each year for five years.
ures have been adopted, and to advise the reporting at- Block said the settlement was separate from a $25 mil- lion settlement in the state of Illinois awaiting court ap- The proposal also deals with the obligation of an attor- proval that also involves the loans.
The Professional Negligence Law Reporter is unable to sup- Partridge & Winer, Informing Clinical Trial Participants ply copies of articles. Addresses of publications that may not About Study Results, 288 JAMA 363 (2002) (discusses (1) be available at your local library are provided. the benefits and disadvantages of disclosing clinical trial re-sults to trial participants and (2) the issues researchers should Blakeney, Providing Relief to Families After a Mass Fatality, OVC Bull., NCJ 188912, Nov. 2002, available atwww.ojp.usdoj.gov/ovc (Department of Justice bulletin Schneider, Many Nursing Home Patients Are Neglected that offers advice, resources, and examples of how medical Even After Death, St. Louis Post-Dispatch, Oct. 14, 2002, examiners, coroners, and family assistance centers can pro- available at www.stltoday.com (discusses (1) government vide relief for families of mass fatality victims).
and court documents showing that many nursing homeresidents die from neglect, mainly due to nursing home Carney et al., Factors Associated with Interval Adherance understaffing and lack of funds and (2) steps law enforce- to Mammography Screening in a Population-Based Sample ment officers, prosecutors, coroners, and nursing home of New Hampshire Women, 95 Cancer 219 (2002) (dis- staff could take to alleviate the problem).
cusses a study finding that women who had negative ex-periences with mammography screening technologists, par- Schulman et al., A National Survey of Provisions in Clinical- ticularly heavier women, were less likely than other women Trial Agreements Between Medical Schools and Industry Sponsors, 347 New Eng. J. Med. 1335 (2002) (discussesan International Committee of Medical Journal Editors’s Dawson, Handling the Cervical Fusion Case, Trial News, study finding that academic institutions conducting trials Oct. 2002, at 12 (discusses trial techniques used to con- in privatized research environments do not adhere to guide- vince a jury that cervical fusion clients suffer from a seri- lines for design, data access, and publication control).
ous injury and often cannot function well in their daily ac-tivities). Contact the Washington State Trial Lawyers Selvachandran et al., Prediction of Colorectal Cancer by a Association, 1809 7th Ave., Ste. 1500, Seattle, WA 98101. Patient Consultation Questionnaire and Scoring System: AProspective Study, Lancet, July 16, 2002, available at Gorter et al., Psoriatic Arthritis: Performance of www.thelancet.com (discusses a United Kingdom National Rheumatologists in Daily Practice, 61 Annals Rheumatic Health Service study that aims to more accurately identi- Diseases 219 (2002) (discusses a study finding that rheuma- fy symptoms and medical characteristics of patients at risk tologists who focus on distal interphalangeal joint arthri- tis in psoriatic arthritis patients can sometimes miss less-obvious skin symptoms).
Shaywitz & Ausiello, Improved Drug Regimens HelpPatients Take Their Medicine, July 16, 2002, available at Gupta et al., Morphine Stimulates Angiogenesis by Activating www.nytimes.com (discusses how drug formulation im- Proangiogenic and Survival-Promoting Signaling and provements can increase patient compliance and a treat- Promotes Breast Tumor Growth, 62 Cancer Res. 4491 (2002) (discusses a study (1) finding that morphine pro-moted tumor growth in laboratory mice by stimulating Stone et al., Comparison of Angioplasty with Stenting, with or blood vessel development and (2) suggesting that the use without Abciximab, in Acute Myocardial Infarction, 346 New of morphine to treat pain in cancer patients may acceler- Eng. J. Med. 957 (2002) (discusses a study finding that pa- tients with acute myocardial infarction had lower revascular-ization rates when treated with stents, with or without ab- Joint Commission on Accreditation of Healthcare ciximab, than with standard balloon angioplasty).
Organizations, Joint Commission Announces 2003 NationalPatient Safety Goals, Aug. 2002, available at www.jca- The United Kingdom Small Aneurysm Trial Participants, ho.org (discusses the Joint Commission on Accreditation Long-Term Outcomes of Immediate Repair Compared with of Healthcare Organizations’ national safety goals for 2003.
Surveillance of Small Abdominal Aortic Aneurysms, 346 These goals include improving the accuracy of patient iden- New Eng. J. Med. 1445 (2002) (discusses a study (1) find- tification, communication among caregivers, the safety of ing that early prophylactic surgery does not improve sur- using high-alert infusion medications and pumps, the ef- vival in patients with small abdominal aortic aneurysms and fectiveness of clinical safety alarms, and eliminating unin- (2) recommending ultrasonographic surveillance until the aneurysm’s diameter exceeds 5.5 cm).
Federal Court
California. . . . . . . . . . . . 9, 10, 13 New Jersey. . . . . . . . . . . . . . . . 6 Colorado. . . . . . . . . . . . . . . . . . 4 New York . . . . . . . . . . . . . . . . 4 8th Cir. . . . . . . . . . . . . . . . . . 5 Florida. . . . . . . . . . . . . . . . . . 13 Ohio. . . . . . . . . . . . . . . . . . . . 6 11th Cir. . . . . . . . . . . . . . . . . . 5 Georgia. . . . . . . . . . . . . . . . . . . 8 Oklahoma . . . . . . . . . . . . . . . 12 Illinois . . . . . . . . . . . . . . . 6, 8, 11 Pennsylvania. . . . . . . . . . . . . . . 7 State Courts
Maryland. . . . . . . . . . . . . . . . . 9 South Carolina . . . . . . . . . . . . . 4 Massachusetts . . . . . . . . . . . . . . 4 Texas. . . . . . . . . . . . . . . . . . . 14 Alabama . . . . . . . . . . . . . . . . 11 Michigan. . . . . . . . . . . . . . . . . . 8 Virginia . . . . . . . . . . . . . . . . . 12 Arizona. . . . . . . . . . . . . . . . . . . 3 Missouri. . . . . . . . . . . . . 7, 10, 10 Wisconsin . . . . . . . . . . . . . . . 11 DOCUMENT SETS $95
negligently treating an outpatient who committed suicide).
No. PN-571.
Documents can be downloaded from the Exchange at ■ MANSHIP V. COASTAL EMERGENCY SERVS., p. 5 (plain-tiff’s memoranda opposing defendants’ summary judg- ■ APEX TOWING CO. V. TOLIN, p. 3 (plaintiffs’ appellate ment motions in a case alleging failure to properly treat a briefs in a case holding the limitations period for a legal negligence claim begins when the appeal of the underly-ing case is concluded). No. PN-652.
■ NGUYEN V. STECHER, p. 4 (plaintiffs’ motion in limineand doctor’s deposition in a case alleging that a neurosur- ■ COLWELL V. BAKER, p. 12 (plaintiffs’ petition, requests geon had failed to adequately protect a woman’s carotid for admissions and production of documents, and first in- artery during back surgery). No. PN-672.
terrogatories in a case alleging improper restraint of a men-tal health treatment center resident and failure to imple- ■ O’SULLIVAN V. PRESBYTERIAN HOSP., p. 12 (plaintiff’s ment timely life-saving measures). No. PN-593.
appellate brief in a case holding that a psychiatrist may beheld legally liable for failing to suggest adequate treatment ■ GIBSON V. APPLETON CITY MANOR, p. 9 (deposition of for a patient who later took his own life). No. PN-499.
plaintiff’s expert on the subject of geriatrics in a case al-leging failure to care for a nursing home resident’s cast).
■ PETRIDES V. GOODGOLD, p. 7 (plaintiffs’ memorandum of law in opposition to defendants’ motion to vacate thejury verdict in a medical negligence case alleging failure to ■ GORMAN V. LAROCHE, p. 4 (depositions of the parties’ diagnose a herniated disk). No. PN-505.
experts in a case alleging failure to timely diagnose breastcancer). No. PN-470.
■ THOMAS V. TRAVELERS CO., p. 11 (plaintiff’s summa-ry judgment motion and submission to a medical review ■ KOCKELMAN V. SEGAL, p. 12 (plaintiff’s opening brief panel in a case alleging a pharmacist and pharmacy had in a case holding a psychiatrist and clinic may be liable for misfilled a prescription. No. PN-537.
COURT DOCUMENT SETS BY TOPIC: HMO LIABILITY DOCUMENT SETS $95
tiff’s reply in a case holding that negligent vasectomy claimsagainst a doctor and HMO are not completely preempt- Documents can be downloaded from the Exchange at ■ PETROVICH V. SHARE HEALTH PLAN OF ILL., INC., ■ DUKES V. U.S. HEALTHCARE, INC., 10 PNLR 129 (Sept.
13 PNLR 148 (Oct. 1998) (the parties’ appellate briefs 1995) (appellate briefs of plaintiffs and amicus curiae in a in a case holding an HMO may be vicariously liable for case holding federal courts lacked ERISA civil enforcement its participating physicians’ alleged negligence). PN-584.
preemption jurisdiction over negligence claims against anHMO). No. PN-477.
■ SHANNON V. MCNULTY, 13 PNLR 192 (Dec. 1998)(plaintiffs’ appellate brief and Pennsylvania Trial Lawyers ■ FRAPPIER V. WISHNOV, 11 PNLR 130 (Sept. 1996) (the Association amicus brief in a case holding an HMO may parties’ appellate briefs in a case holding that ERISA does be liable under vicarious and corporate liability theories).
not preempt a vicarious liability claim against an HMO).
■ VENESKI V. QUEENS-LONG ISLAND MED. GROUP, P.C., ■ HERMAN V. STATEN ISLAND MED. GROUP, 13 PNLR 88 15 PNLR 132 (Sept. 2000) (deposition of defendant in a (June 1998) (one plaintiff’s deposition and defendants’ case alleging an HMO’s employee failed to maintain a heart opposition to plaintiffs’ motion seeking a videotaped dep- patient’s coagulation levels). No. PN-639.
osition in a case alleging failure to timely diagnose Merkelcell carcinoma). No. PN-574.
■ WILSON V. CIGNA HEALTHCARE OF ARIZ., INC., 13 PNLR 108 (July 1998) (plaintiff ’s summary judg- ■ HERRERA V. LOVELACE HEALTH SYS., INC., 14 PNLR ment motion and the jury instructions in a case where 66 (May 1999) (plaintiff’s motion to remand and sup- plaintiff alleged failure to diagnose and adequately treat porting memorandum, defendants’ response, and plain- an E. coli infection). No. PN-577.
Search the Law Reporter online
Maybe you already knew the Law Reporter was available online through ATLA Online. And maybe you knew userscould access back issues dating from May 1993. But did you know that the Reporter is now fully searchable? Now, registered ATLA Online users can search ATLA’s entire Web site for case summaries, articles, and other doc-uments on any topic, from automobile accidents to wrongful discharge. With a simple, user-friendly search engine,the site offers a fast, simple, and inexpensive way to research issues important to your next case. And online casesummaries include the same content as their original print versions, so you’ll receive the same vital information ondamages, experts, and plaintiffs’ counsel that appears in the Reporter each month. You can also order documentsfrom cases online.
And there’s more good news. Because TRIAL Magazine and the Advocate beginning with their June 1995 issuesare also available online, a search will yield articles from these important ATLA publications as well. So don’t wait. If you’re already a registered ATLA Online user, let your fingers do the walking. If you’re not reg-istered, visit our public page at www.atla.org and find out what you’re missing! DOCUMENT SETS $95
ing an Indiana law does not protect blood factor concen-trate manufacturers from strict liability suits). No. LR-2702.
Documents can be downloaded from the Exchange at ■ KATZ V. CHILDREN’S HOSP., 37 ATLA L. Rep. 317 (Oct. 1994) (plaintiff’s brief to the Ninth Circuit and the ■ BLOOD BANK OF DEL., INC. V. PRICE, 43 ATLA L. Rep.
court’s opinion holding a minor’s professional negligence 233 (Aug. 2000) (plaintiff’s appellate brief in opposition action accrues within three years of the date of injury, not to defendant’s motion for an interlocutory appeal in a case the alleged wrongful act). No. LR-2175.
holding the learned intermediary doctrine inapplicable tophysician-directed blood transfusions). No. LR-3579.
■ LYNAM V. MARTIN, 39 ATLA L. Rep. 72 (Mar. 1996)(plaintiffs’ expert depositions in a case alleging failure to ■ GRUCA V. ALPHA THERAPEUTIC CORP., 38 ATLA L. Rep.
report abnormal liver enzyme test results). No. LR-2640.
196 (June 1995) (the parties’ appellate briefs in a case hold-ing that a directed verdict was improper on a claim that re- ■ NEW V. ARMOUR PHARM. CO., 38 ATLA L. Rep. 318 peated exposure to HIV in a blood product hastened a he- (Oct. 1995) (the parties’ appellate briefs in a case holding California’s statute of limitations governing a hemophili-ac’s products liability action against a blood product man- ■ JKB, SR. V. ARMOUR PHARM. CO., 39 ATLA L. Rep.
ufacturer began to run when plaintiff developed AIDS, not 160 (May 1996) (plaintiffs’ appellate briefs in a case hold- when he tested HIV positive). No. LR-2509.
COURT DOCUMENT SETS BY TOPIC: FTCA LIABILITY DOCUMENT SETS $95
■ HOLTHAUS V. UNITED STATES, 33 ATLA L. Rep. 23 (Feb.
1990) (the court’s findings of fact and conclusions of law Documents can be downloaded from the Exchange at in an FTCA action alleging failure to timely diagnose ■ BENAVIDEZ V. UNITED STATES, 42 ATLA L. Rep. 277 ■ LITTLE V. UNITED STATES, 5 PNLR 68 (May 1990) (the (Sept. 1999) (the parties’ appellate briefs in a case holding court’s findings of fact, conclusions of law, and unpublished the FTCA’s intentional tort exception did not apply to a decision in an FTCA action against army doctors alleging claim that a government-employed psychologist had mis- failure to monitor and properly intubate a hypoxic patient).
managed a patient-therapist relationship). No. LR-3466.
■ BIRD V. UNITED STATES, 7 PNLR 87 (June 1992) (plain- ■ REILLY V. UNITED STATES, 32 ATLA L. Rep. 86 (Apr. 1989) tiff’s appellate brief on whether the government is liable (plaintiff’s posttrial, reply, and appellate briefs supporting an for the negligence of a temporary nurse). No. PN-300.
obstetrical negligence suit under the Federal Tort Claims Act).
No. LR-698.
■ BORGREN V. UNITED STATES, 5 PNLR 11 (Feb. 1990)(plaintiff’s trial brief, proposed findings of fact and con- ■ SALAS V. UNITED STATES, 41 ATLA L. Rep. 219 (Aug.
clusions of law, closing argument and response to defen- 1998) (the court’s decision and order in an FTCA case al- dants’ brief, and the court’s order on an army hospital’s leging an FBI agent failed to heed a stop sign). failure to diagnose breast cancer). No. PN-146.
Professional Negligence Law Reporter (ISSN 1051-3744) Volume 18, Number 1. Published monthly except January and August by the Association of Trial Lawyersof America, Education Fund, Leonard M. Ring Law Center, 1050 31st Street, N.W., Washington, DC 20007-4499. Telephone (202) 965-3500. Subscriptionprice $125 for ATLA members or $195 for non-members. 2003 by the Association of Trial Lawyers of America, Education Fund. Periodicals postage paid atWashington, D.C., and additional mailing offices. POSTMASTER: Send address changes to Professional Negligence Law Reporter, Leonard M. Ring Law Center,1050 31st Street, N.W., Washington, DC 20007-4499. ABSTRACT SETS $75
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Source: http://justice.org/Publications/pnlrfeb03.pdf