Our blog has moved!

Our blog has moved here: Paulsen & Armitage Blog

Milwaukee Judge Holds Medical Malpractice Damages Cap Unconstitutional When Applied to Woman Who Had Four Limbs Amputated Due to Medical Negligence

A woman who lost all four limbs to sepsis because emergency room physicians failed to inform her that she may have an infection that could be treated with antibiotics won a $25.3 million judgment for medical malpractice. $16.5 million of that award was for pain and suffering and loss of companionship with her husband. The defendants asked the judge to reduce this portion of the award from $16.5 million down to $750,000, pursuant to a Wisconsin state law which caps "noneconomic" damages in medical malpractice cases at $750,000.

The judge refused to reduce the award, however, deciding that it would be unconstitutional to apply the damages cap in this particular instance. The judge in Mayo v. Wisconsin Injured Patients and Families Compensation Fund looked at the different arguments in favor of damages caps - controlling health care costs, controlling doctors' insurance premiums, preventing "runaway jury" awards - and decided that none of them bore any rational relation to the judgment in this case. First of all, the amount of this award was not out of proportion to the severity of the injury in either the judge or the jury's eyes. Secondly, judgments in excess of $1 million in Wisconsin are paid out of a state fund built from physician insurance premium contributions. This fund is currently valued at over $1 billion and can easily pay the judgment out of its current year investment income. Upholding the judgment, therefore, should not require an increase in medical provider insurance costs or raise overall health care costs to the public.

In Colorado, noneconomic damages in medical malpractice cases are capped at $300,000. In addition, the total amount of damages are capped at $1 million. This includes payments for present and future medical expenses, lost wages and other "economic" damages, regardless of how severe or costly the injury is. The court does have the power to exceed the cap for the sake of fairness in appropriate cases.

Courts around the nation are starting to scrutinize statutes capping damages in medical malpractice cases. Judges are no longer willing to take legislative arguments at face value but are now doing their own research to see whether the arguments are true and rationally related to the caps, and whether treating medical malpractice victims differently from other personal injury or wrongful death victims is a constitutional practice.

Colorado Trucks Found with High Rate of Bad Brakes During Surprise Inspections

A period of unannounced roadside inspections of commercial vehicles conducted last Spring revealed a high number of semi-trucks in Colorado with brake system violations. Brakes which are out of adjustment or have worn pads, linings, drums or rotors are by far the major reason 18-wheelers are placed out of service during roadside inspections. A brake failure at a critical moment on the highway can result in a catastrophic truck crash causing serious personal injury or wrongful death to the truck accident victims.

The surprise inspections were conducted with the help of the Federal Motor Carrier Safety Administration (FMCSA) as part of Operation Airbrake, an ongoing brake safety program spearheaded by the Commercial Vehicle Safety Alliance (CVSA). Nationally, 7,701 tractor-trailers were inspected, with 10.1% found to have brake adjustment issues and another 8.7% found with out-of-service (OOS) violations for brake components. In Colorado, however, the inspections found 10.8% of trucks with brake adjustment problems and 13.3% with brake component issues, placing Colorado in the top ten of jurisdictions with the highest violations of the 24 jurisdictions inspected.

In addition, another 6.7% of the big rigs were placed out-of-service for other issues uncovered during the inspections, such as driver's license and registration problems.

Another aspect of Operation Airbrake is Brake Safety Week, which includes a series of pre-announced inspections. This year Brake Safety Week was held from September 7-13 and was expected to cover 30,000 commercial vehicles. Hopefully, the surprise inspections last May served as a wake-up call to the trucking industry to get their fleets in compliance with safety codes, so that the results of Brake Safety Week inspections will show an overall improvement in Colorado and across North American trucking.

Inspection Event Shows Truck Safety Still Has A Long Road to Travel

For 72 hours from June Third to June Fifth earlier this year, the Federal Motor Carrier Safety Administration (FMCSA), in conjunction with the Commercial Vehicle Safety Alliance (CVSA), stopped and inspected more than 73,000 trucks and buses at about 2,500 locations across the country, as well as Mexico and Canada. The safety event, known as Roadcheck, is now in its 27^th year. The results of the inspections overall showed improvement over recent years, but the sheer amount of safety violations uncovered leaves no doubt that we still have a long way to go to improve road safety within the trucking industry.

Roadcheck 2014 inspected trucks as well as drivers. Of the 73,475 vehicles inspected, 18.7% were pulled from service for safety violations. That's 13,740 trucks, or about one in every five vehicles inspected. Of course, Roadcheck was able to inspect only a fraction of the more than two million semi-trucks and tractor-trailers registered in the U.S.

The biggest issues requiring trucks to be placed out of service were brake system issues, brake adjustment violations, and tire/wheel violations. These three areas, each of which can lead to catastrophic truck accidents and serious personal injury to others involved in a truck crash, accounted for 61% of the out-of-service violations.

Of the drivers inspected, 4.8% of truckers (about one in 20) were tagged with out-of-service violations of their own. Nearly half of those violations were for violating FMCSA rules regarding maximum hours of service for drivers, which currently allow truckers to drive 11 hours in a 14-hour workday, with workweeks that can last for six or seven consecutive days. Other serious issues found among drivers were falsification of logbooks, being disqualified from driving, and driving with a suspended license.

Jury Awards $3.27 Million Against Maker of Defective Medical Device, More to Come

Earlier this month, a jury in West Virginia handed down a $3.27 million verdict against medical device maker Ethicon, inc., a division of Johnson & Johnson. The plaintiff in Huskey v. Ethicon had been implanted with a pelvic mesh to treat stress urinary incontinence. The jury found Ethicon guilty of manufacturing a defective medical device and failing to warn about adverse side effects such as infection, bleeding and pain. The jury awarded the plaintiff $100,000 in medical costs, $200,000 for loss of consortium with her husband, $470,000 for past pain and suffering and mental anguish, and $2.5 million for future pain and suffering, mental anguish, disability, and loss of enjoyment of life.

This case is only one of 22,000 cases against Ethicon in the United States District Court for the Southern District of West Virginia, and only one of 66,000 cases total in the court against Ethicon and six other pelvic mesh manufacturers. These cases have been consolidated and transferred from all over the country to the Southern District of West Virginia by the Judicial Panel on Multidistrict Litigation, or MDL, but there are still thousands of other cases active in state courts around the country as well.

The recent case of Huskey v. Ethicon was one of several MDL "bellwether" trials being conducted by the court. The idea is that as more of these key cases are decided, the parties in the thousands of other cases will be able to reach a settlement based on the outcomes of those trials without having to litigate all the cases individually. Already, one of the device manufacturers, American Medical Systems of Endo International, has agreed to settle the roughly 20,000 cases against it for a total of $830 million.

Colorado VA Update: $15 Million paid to-date for delays in medical treatment

Back in July this blog covered the investigation of the Office of the Medical Inspector for Veterans Affairs into a Fort Collins VA outpatient clinic for medical malpractice (see Fort Collins VA Clinic Under Fire for Falsifying Medical Records, Delaying Treatment). Clerks at the clinic were allegedly instructed to falsify appointment records to make it appear that patients were seen within the agency’s timeline goal of 14 days, when in reality patients had to wait several months to be seen by a doctor.

Since our post in July, more than 400 claims have been filed against the VA for providing substandard healthcare and committing medical malpractice through unreasonable delays and serious medical errors. Close to $15 million in damages has already been awarded to Colorado veterans based on lawsuits filed.

Examples of medical malpractice revealed by VA documents include:

• Wrongful removal of a patient’s prostrate due to a mix-up of patient records
• Failure to diagnose and treat a retinal detachment in a timely manner, resulting in the loss of vision to a patient’s right eye
• Surgical clamp left inside patient’s chest after triple bypass surgery
• Improperly performed penile prostheses operation, resulting in severe pain
• Improper intubation before surgery, leading to a lack of oxygen and permanent brain damage

 If you or someone you know has been subjected to similar malpractice by the VA, ranging from unreasonable delays in treatment to serious medical mistakes, contact Paulsen & Armitage, LLC in Denver for a free consultation with experienced Colorado medical malpractice attorneys.

Tracy Morgan Sues Wal-Mart Over Injuries Sustained in Semi Truck Crash

Actor/comedian Tracy Morgan, known for his work on the television shows Saturday Night Live and 30 Rock, is suing retail giant Wal-Mart over injuries sustained when his limousine bus was struck by a tractor-trailer on the New Jersey Turnpike last month. The driver of the truck, Kevin Roper of Georgia, is not named as a defendant in the lawsuit. Rather, the complaint alleges that Wal-Mart was negligent in several ways, including:

• Having Roper commute 700 miles to work and then assigning him a long driving shift, rather than having him report to a distribution facility closer to his home

• Allowing Roper to drive a truck whose automatic brakes and collision-avoidance systems were not working properly

• Allowing drivers to routinely work shifts longer than are permitted under FMCSA regulations, including driving beyond the maximum hours per day, driving too many consecutive hours without rest, and driving beyond the maximum allowed hours per week

Roper is said to have gone without sleep for 24 hours prior to the crash. He also may have been driving beyond allowable FMCSA regulation limits. The Federal Motor Carrier Safety Administration allows a trucker to work up to 14 hours a day, with a maximum of 11 hours behind the wheel. At the time of the accident, Roper had already clocked 13 ½ hours on the job.

Roper's own negligence could make him liable for the injuries caused. As Roper's employer, Wal-Mart may be held liable for the negligence of its employee, as well as its own negligence and reckless and intentional misconduct as outlined in the lawsuit.