New Hampshire Law Blog

NH Supreme Court Overturns Malpractice Case

The New Hampshire Supreme Court has reversed a $2.3 million jury decision in a "wrongful birth"malpractice case against Dartmouth-Hitchcock Medical Center, ruling that the hospital sufficiently informed a couple about the potential for their unborn son to have significant birth defects.

The full article follows in the extended body of this post.

Source:  Someone emailed this to me, but I believe it came from the Valley News

Moultonboro  'Wrongful birth' case overturned Couple says Dartmouth-Hitchcock fell short

By JODIE TILLMAN
Valley News

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T

he New Hampshire Supreme Court has reversed a $2.3 million jury decision in a "wrongful birth"malpractice case against Dartmouth-Hitchcock Medical Center, ruling that the hospital sufficiently informed a couple about the potential for their unborn son to have significant birth defects.

Sherry and Brad Hall of Moultonboro sued the hospital three years ago, saying they would have terminated the pregnancy had the hospital's genetic counselors and doctors more fully informed them of the extent of their child's disabilities, which stem from an extremely rare chromosomal disorder called partial trisomy 9q.

The Halls' son, Brandon, now 5, is severely retarded, uses a feeding tube, cannot walk and requires around-the-clock care, said the couple's lawyer, Steven Latici of Gilford. He said he plans to file a motion for the Supreme Court to reconsider its decision.

"They are emotionally devastated by this decision," Latici said of the Halls. "We think the court made significant interpretive errors."

DHMC lawyer Ron Snow of the Concord law firm Orr and Reno said that the high court was prudent in ruling that doctors must discuss potential outcomes but need not be "definitive" in their prognosis for an unborn child, particularly because current medical technology makes being definitive impossible in some cases.

The Halls brought the wrongful birth claim in Grafton County Superior Court against DHMC, cytogeneticist T.K. Mohandas and Dartmouth College, which is Mohandas'employer.

The claim against Mohandas alleged that he was medically negligent in reporting the fetus's genetic "karyotype"-- a digital image of its 23 pairs of chromosomes - as normal, when, in fact, it was not.

DHMC, the Halls said, was medically negligent because its prenatal genetic counseling team - made up of doctors and counselors -failed to provide "complete and accurate" information in a timely manner that would have allowed the couple to make an "informed decision" about whether to terminate the pregnancy.

The Grafton County jury in 2004 did not find Mohandas or Dartmouth College liable in the case, but it did rule against DHMC, which then asked Superior Court Judge Steven Houran to set aside the jury verdict because it stood in contradiction to the evidence. Houran denied the hospital's motion, and DHMC took the matter to the Supreme Court.

It was only the second ever "wrongful birth" lawsuit to reach the state's high court. Justices cited a 1986 decision that found that parents of a child born with severe defects could file a wrongful birth claim if their providers failed to inform them of an "increased possibility" of the child's problems.

Brad Hall testified that DHMC should have told them, "This is what's wrong with your baby and you need to consider termination."Justices said the couple cited no authority to support that contention.

Ethical implications

Beyond the issues of malpractice liability, the case also touched on the intricacies of genetic testing - and its broader ethical implications: What kind of message do such lawsuits send about how society values disabled people? Or, who can judge those parents who see on a daily basis the suffering of the most profoundly disabled children? And how does a woman's right to an abortion fit into the debate? Susan Crockin, a Massachusetts lawyer who specializes in reproductive law, said wrongful birth claims have been around for decades but have grown increasingly more complicated since prenatal genetic testing started to take off in the 1990s. She has dubbed such cases "reproductive wrongs."

Reproductive genetic testing has been used for decades to inform prospective parents about their risk of producing a child with a genetic disorder. Advances in recent years have made it possible to predict with varying certainty more than 1,000 types of disorders, such as Down syndrome. One motivation for "wrongful birth" suits is to seek financial resources to help pay the enormous costs of raising children with serious birth defects, said Andy Imparato, president of the American Association of People with Disabilities.

"To the extent that there's potential for liability, you can't argue with that," he said. "I try not to blame the parents who bring these kinds of cases." But Imparato said he couldn't square the essential argument in such cases with respect for people who live with disabilities. "It can reinforce the widely held notion that a disability is a fate worse than death," he said.

The Halls have indicated they will not institutionalize their son, and Sherry Hall is his full-time caretaker while her husband works at his home repair business, said Latici, their lawyer. The couple loves their son, he said, "and they are two of the most dedicated parents I've ever met in my life."

That makes these types of cases particularly complicated. Though they love Brandon, they are also arguing in court that they would not have had him if they had known just how his life would have turned out, Latici said. He recalled that he asked Brad Hall during the trial if his son would have been better off not born. Brad Hall "sat there and choked up and said if (Brandon) had the ability to communicate he (would say he) would rather not have been born," Latici said. He said the Halls, who are currently out of the state, are not speaking to the press.

The court's account

The Supreme Court's decision provides the following account of the case:

Sherry Hall learned she was pregnant in December 2000. Three months later, her prenatal care provider in Moultonboro referred her to DHMC in Lebanon for genetic counseling after a test showed the fetus carried an elevated risk for a chromosomal disorder called trisomy 18.

The Halls met that month with Valerie Hani Lacroix, a certified genetic counselor at DHMC, and Emily Baker, a physician. An ultrasound revealed nothing out of the ordinary - with the exception of clenched hands, a well-known marker for the disorder.

The doctor recommended an amniocentesis to get more information about the fetus, and Hall told doctors "she would terminate her pregnancy if the testing revealed any chromosome abnormalities."

The fluid sample from the amniocentesis was sent to a cytogenetics lab run by T.K. Mohandas, an employee of Dartmouth College. Hall was told that it would be at least two weeks before she could get the results; about a week later, she told Lacroix that she wanted to terminate her pregnancy. Lacroix urged her to wait for the results of the amniocentesis before making a decision.

The lab examined the fluid and issued a report saying the digital image of the fetus's chromosomes were characteristic of a normal male. Trisomy 18 was ruled out, and on March 20, 2001, Lacroix called the Halls and told them they had a "normal, healthy baby boy."She added that the clenched hands were often indicative of a "simian crease," a single crease across the palm of the hand, which the Halls understood to have no genetic significance. As a result of the report, the Halls were no longer talking about terminating the pregnancy.

A week later, however, a follow-up ultrasound revealed that in addition to the clenched fists there also was the possibility of a congenital deformity in which the foot is shaped like a convex, rocker bottom. Upon reviewing the latest ultrasound, Lacroix issued an order to the laboratory to save any remaining amniotic fluid for further testing. She did not share this information with the Halls. No member of the DHMC genetic counseling team contacted the Halls about the follow-up ultrasound results.

The next time the Halls heard from DHMC was to schedule another ultrasound, on April 24, 2001. Following the ultrasound, the couple met with Michelle Lauria, a DHMC physician. At the time of the meeting, Hall was at almost 24 weeks of gestation; DHMC performs abortions only up to 22 weeks of gestation. Boston-area providers, however, terminate pregnancies up to 24 weeks of gestation.

Lauria told the Halls that in addition to the continually clenched hands and the possible rocker-bottom foot, the fetus also exhibited additional problems on the ultrasound, including an unusually small lower jaw, possible heart problems and a possible head deformity that suggested an underlying brain abnormality. During that meeting, Lauria discussed a broad range of possibilities, ranging from a "very minor problem that perhaps would require some physical therapy or maybe some surgery, all the way to be just severely affected, dying at birth or being severely mentally retarded."

Transferring care

The Halls decided at that point to transfer her medical care to Brigham & Women's Hospital in Boston. An additional ultrasound there showed the clenched hands and small lower jaw but did not detect the other problems DHMC found, and Hall decided to carry the fetus to term.

On July 25, 2001, Brandon Hall was born with multiple severe congenital anomalies. A cytogeneticist at Brigham & Women's Hospital examined a sample of blood taken from the umbilical cord, "looking carefully for something abnormal."Eventually, the lab found that one of his chromosomes had a slightly unusual appearance. Given that, the lab called for parental blood samples.

When the lab examined a blood sample of the child's father, it concluded he had what is known as a "balanced translocation": He had the correct number of chromosomes, but two pieces of material had switched positions. Like most people who have such a trait, Brad Hall does not suffer from any physical or mental abnormalities. But because the child had inherited half of his chromosomes from his father and half from his mother, he had an "unbalanced translocation."The particular switch of chromosomal material was diagnosed as partial trisomy 9q.

"This diagnosis was more than extremely rare," the court notes. "It was the first reported occurrence of this particular configuration of chromosomal abnormality."

Crockin, the Massachusetts attorney who studies reproductive law, said her understanding of the justices' opinion is that the rarity of the abnormality played into their decision.

She said the Halls "make a sympathetic argument" that they should know probability, not just possibility, of the defects. "If it was a less rare disorder," she said, "it might've gone the other way."

NH Medical Malpractice Rates will be reviewed.

The New Hampshire State Insurance Commissioner ruled last week that:

New Hampshire's marketplace for medical malpractice insurance for doctors, surgeons and hospitals is too concentrated and noncompetitive

What this basically means is that the Insurance Commission will review rate changes before they go into effect and will have the authority to make changes to those rates.

Read the Article Here at the Union Leader

State looks at Medical Malpractice Insurance Rates

The State Department of Insurance had a public hearing to help determine if the medical malpractice insurance environment in the state was competitive.  It seems that a few people agree that it is not.  If the state rules that it is not competitive , then the Department of Insurance will review rates before they are set.

The top four firms share 68 percent of the market, and the top eight share 82 percent...

The hearing could be a preliminary step to Insurance Commissioner Roger Sevigny's determining that the market is uncompetitive, under RSA 412:13, which would allow him to review rates before they are put in place and disapprove rates he finds unreasonable.

The New Hampshire Medical Society Agrees that rates are not competitive.

New Hampshire Medical Society Executive Director Palmer Jones testified that his organization agrees the market in New Hampshire is non-competitive. "There are only a few major companies that are providing insurance at this time," he said. "Options are limited."

Source:  The Union Leader;  The Nashua Telegraph

How about a NH Medical Commision to study medical errors?

Sounds good to me.  Currently when a medical error takes place, a hospital in New Hampshire can investigate that error and not have to reveal the investigation in court as part of a lawsuit.  That is because you want to encourage hospitals to fix problems that come up in that investigation.  If the investigation could be used against the hospital in court then they wouldn't do it.

So now the idea is to create a Commission that studies medical errors and SHARES the results between hospitals.  That way an error that occurs in Manchester might be investigated and the cause of the problem solved. Then through this commission that solution gets shared with hospitals all over the state in Laconia, Concord, Portsmouth...wherever.  Those hospitals can then implement the improvements and make medical care safer all over New Hampshire

Source:  NH Public Radio

Early Detection of Lung Cancer

Here's why early diagnosis of lung cancer is important...

The survival rates for early stage disease are quite high, approaching 80 percent in some series.

According to this recent study,

Researchers have shown that low-dose spiral computer-based tomographic (CT) screening for the early detection of lung cancer can lead to an early diagnosis in a high proportion of cases, potentially increasing the chances for a cure.

Read the article here at Medical News Today

Because early detection can be so successful with cancer, it is important that the testing be read correctly.  This is where misdiagnosis of lung cancer cases come from.  Once the window of opportunity to treat a disease is closed, then the chances of survival drop.  This loss of chance is what drives a cancer misdiagnosis medical malpractice case.

Subarachnoid Hemorrhage: Missed Diagnosis

More on our focus on Emergency Room medical malpractice.  The problem with missing this diagnosis is that the results can be disastrous.

A Subarachnoid hemorrhage is a disorder involving bleeding between the middle membrane covering of the brain and the brain itself, within the cerebrospinal fluid-filled spaces surrounding the brain (also known as the subarachnoid space). Medline Plus

Headaches are one of the leading reasons why people go to an emergency room in the first place.  If the headache is a sudden headache and feels like one of the worst you have ever experienced, then chances are higher that the headache is more than a chronic headache.

A subarachnoid hemorrhage is sometimes misdiagnosed as TIA, trauma, chronic headache, meningitis, neck strain or arthritis.  If the ER staff move too quickly toward one of these results then you may not get a CT scan which is probably going to pick up the bleeding in about 90 percent of cases.  One other fact to consider is whether there was another headache that was somewhat severe in nature several days before this one.  That previous headache may indicate that the bleed was about to happen.  Not asking for a good patient history might miss this fact.

 

Misdiagnosis of Pulmonary Embolism

2/3 of pulmonary embolism cases are misdiagnosed. Over 600,000 cases of pulmonary embolism occur every year and only 1/3 are ever diagnosed correctly.    If you go to an emergency room and they miss the diagnosis and send you home the chances of dying increase because there is a chance an emboli will recur.

Symptoms:

• Shortness of breath (dyspnea)
• Chest pain
• some sort of shock (sometimes low blood pressure)
  
• syncope (fainting)

Diagnostic tests used to find Pulmonary Embolism:

• Chest x-ray
• Sometimes you will see the doctors rule out a DVT (Deep Vein Thrombosis),
• Blood gases to check for oxygen levels

98,000 medical errors deaths yearly

It's a number that has been used a lot over the past several years.  In a study released on May 18, 2005, the Journal of the American Medical Association reports that the rate of death has not changed much since 2000 when a previous study was released.

98,000 deaths nationwide...How many people is that in New Hampshire?

Source:  www.USAToday.com

Aspirin and Colon Cancer

A study has been released indicating that aspirin "MIGHT" reduce the risk of Colon Cancer recurring.  Read the article here in the Detroit News.

Legislature approves new medical malpractice bill

The New Hampshire Legislature has approved a bill that will allow a doctor to apologize to a patient and NOT have that apology held against him or her in court.  This is a good thing.  Currently if a doctor admits a mistake and says "I'm Sorry" that statement can be used in court because it is an admission by a party to the lawsuit (the doctor).  An evidence rule allows statements like this into court.

That rule has kept doctors from apologizing and that is bad.  Doctors should be allowed to apologize without it being held against them.  Many people just want to hear that apology and it helps with the doctor patient relationship.  By passing this law you will likely reduce, by a little, the number of small malpractice lawsuits that are filed by people without lawyers who just want an apology.  It won't have an effect on most malpractice lawsuits, because in most cases the damages are so large that the injured person has to file in order to reconstruct their life in some way.

See article at the Nashua Telegraph
The bill is HB 584.

Failure to diagnose a Heart Attack

Somewhere around 1.5 million heart attacks occur each year.  These are Acute Myocardial Infarctions or otherwise known as (AMI, Acute MI or heart attack).  Many of the people with heart attack present to an emergency room for their first treatment.  The symptoms are what you might expect,

• crushing pain in their chest,
• radiating pain to their arms (often the left) and
• difficulty breathing. 

Of the people who make it to the emergency room with a heart attack, up to 8% of them are sent home from the hospital without treatment and having been misdiagnosed. This is an example of heart attack medical malpractice. Not all of them are malpractice, but if the right symptoms were presented (and many times they are), and those symptoms are missed or interpreted incorrectly, then it can be malpractice.

Some of the tests that are done at the ER for heart attacks are:

• Electrocardiogram (This does not always show evidence of a heart attack)
• Blood work (Looking for dying heart muscle)
• Echocardiograms (To visualize the heart)

Some common mistakes made by doctors or medical staff include:

• depending on the first electrocardiogram that showed no heart attack (remember that this result can be wrong)
• Not believing that a young person or a woman could be having a heart attack because of their age, or
• jumping to a conclusion such as shoulder strain.

There are actual cases where people have been sent home with a diagnosis of shoulder strain, instead of the heart attack they were having.

Here is a link to a recent court case involving a failure to diagnose a heart attack.  This news story is from Florida. www.gainesvilleregister.com

Update 5/12/05:  I just read a short blurb in a legal reporter that we get here.  It was reporting an anonymous case against a hospital where a man entered an emergency room complaining of pain in his back and pain radiating to his arms.  The doctor diagnosed him with shoulder pains gave him a prescription and sent him home.  He died that night of a fatal heart attack.  The case settled for over $2 Million.

Skin Cancer Warning Signs

Beginning Melanoma Monday, May 2, and continuing throughout the year, thousands of dermatologists across the country will be offering free skin cancer screenings in local communities to teach people how to conduct skin self-examinations and learn if they are at risk for the most common form of cancer – skin cancer.

Skin cancer affects 1 in 5 Americans, yet it has a 95 percent cure rate when detected early. That’s why the American Academy of Dermatology (Academy) encourages everyone to perform a monthly self-exam to look for irregular moles that are growing or changing. Designated by the Academy as “National Skin Self-Examination Day,” Melanoma Monday is designed to raise awareness of melanoma – the most serious form of skin cancer – and the steps the public can take to prevent and detect this condition.  Source:  American Academy of Dermatology

Read on for Melanoma warning signs:

Self Exams are what reduce the rate of lethal skin cancer.  Look for the ABCDs of melanoma:

• A = Asymmetry -- Where the mole is not uniform or one side looks different from the other.
• B = Border irregularity -- This is when the borders are not uniform or are blurred or notched.
• C = Color -- Is the pigmentation of the mole uniform, or does it have different shades, is it mottled, or does it have red white or blue in it.
• D = Diameter -- Is it bigger than 6mm across.

If you have anything like this, then go see a doctor and have it looked at.  Remember catching melanoma early greatly reduces the risks or the skin cancer becoming lethal.

Misdiagnosis of Skin Cancer (Malignant Melanoma)

Approximately 45,000 people will develop malignant melanoma each year. 

7,000 people will die each year from skin cancer.  The good news is that the rate of death is decreasing primarily because people are paying attention to their health and visiting their doctor earlier when they suspect a problem.  That is the key to Skin Cancer survival, detect the cancer early.  If you do then the chances of survival increase dramatically.

Misdiagnosis of skin cancer cases are usually directed at either the pathologist or the primary doctor.  Cases against primary doctors often are based on:

• not following up on a suspicious lesion or mole,
• failing to refer the patient to a specialist or
• failing to biopsy the suspicious lesion (especially when the mole has some of the warning signs for malignant melanoma.)

Cases against a pathologist usually are about their failing to properly recognize the melanoma in the biopsy.

I once heard about a case where a mole was biopsied and the doctor who did the biopsy threw the specimen away so it was never checked.  That person went on to develop metastatic melanoma.

New Hampshire Cerebral Palsy: What do you need to prove?

Cerebral Palsy cases are a subset of general medical malpractice litigation.  So in order to prove a cerebral palsy case, you have to satisfy the general rules of medical malpractice.

1. Prove that the Doctor, Nurse or Nurse Practitioner violated the "standard of care" for the situation they were in.  This basically means that they made a mistake.
2. Prove that there is damage.
3. Prove that the damage is directly the result of the mistake.  This is called causation.

With Cerebral Palsy (CP) you focus on what happened that caused the CP.  Some of of what you need to prove and some of the most common medical malpractice related causes of CP are:

• Oxygen Deprivation.  This can happen during the labor process.  While a woman is in labor there are monitoring devices used to measure the baby's heart rate.  This device produces Fetal Heart Strips.  You can review the fetal heart strips to see how the child was doing through the process and to see whether there were any danger signs that presented that should have been caught and acted upon.
• Infection:  Did an infection develop that went undiagnosed.  If it did develop, then this can cause damage to parts of the brain resulting in motor function weakness and cerebral palsy.

This is not an exhaustive list of what causes Cerebral Palsy.  For more information you can check out another blog that Rob and I post on that focuses on Cerebral Palsy and Brain Injury cases.  www.cerebralpalsylawblog.com

NH Senate Bill 214 (SB 214) and Tort Reform

I recently attended the NH House Judiciary Committee's hearing on SB 214, the bill that would create a screening panel for medical malpractice cases in New Hampshire like the one that currently exists in Maine.  I listened to numerous representatives, senators, lobbyists, physicians and insurance industry representatives speak in favor of the bill.  But I heard no specific information that persuaded me that the Maine panel system is worth the extra cost and delay it creates.

The Committee asked a lot of good questions.  The essence of the questions always seemed to come down to one basic issue: Why is the Maine screening system better than New Hampshire's current system?  None of the supporters of the bill seemed able to provide a clear answer to that question.  In fact, they admitted:

• that there was no problem in New Hampshire with run-away-jury verdicts,
• that New Hampshire plaintiff's lawyers already do an excellent job of screening medical malpractice cases, and
• that the panel system would make cases take longer and cost more for plaintiffs to pursue.

 

Supporters of SB 214 in essence said that the purpose of the bill really is to try to slow the increase in medical malpractice insurance premiums.  One committee member recalled previous claims by supporters that the panel system would reduce such premiums.  She asked what happened to that claim.  Supporters of the bill admitted that the panel system is not aimed at reducing medical malpractice premiums, just slowing down the increase.  In fact, when pressed, supporters of the bill were unable to demonstrate that the panel system would even do that.  There was little evidence that the panel system would slow the increase of premiums, except the repeated assertion that Maine's premiums were lower, and they increased more slowly.  But that fact was shown to be a result of many factors other than the existence of the panel system, even by supporters of the bill. 

Several people mentioned a problem with doctors practicing what they called "defensive medicine."  Apparently, doctors often order medically unnecessary tests and evaluations of patients in order to protect themselves against potential liability.  Bill supporters stated that this defensive medicine was just plain wrong and was caused by the threat of medical malpractice claims.  They also claimed that this drove the cost of medical care up by huge proportions, but were unable to site the source of that "fact" when asked by a committee member. Another committee member rendered the whole issue moot with regard to SB 214 by stating the obvious; that so long as there is a threat of any legal claim at all, doctors are going to practice defensive medicine. 

As a trial lawyer, I am biased in favor of an individual's right to seek redress when that individual has been wronged.  It would have been difficult for supporters of SB 214 to persuade me to support the panel system.  Interestingly, the testimony supporters of the bill actually made me more convinced that the panel system would just cause long delays in obtaining justice for people injured by negligent medical providers and less accessibility to justice because of increased costs and more bureaucracy. 

In fact, it became clear during the course of the hearing that the true purpose of the panel system was to benefit the insurance industry and physicians by making the pursuit of meritorious medical malpractice claims more difficult, time consuming and expensive for people hurt by negligent medical providers. 

Of course, everyone wants New Hampshire to attract good medical providers and to keep them.  And everyone, except maybe insurance companies, would like to see medical malpractice premiums reduced. However, what I heard at this hearing made if very clear to me that SB 214 would not accomplish these goals, but would merely further restrict individual rights and access to justice.

New Hampshire Medical Malpractice "Tort Reform"

An article by the Nashua Telegraph on the NH Senate Judiciary Committee's hearing on their proposed medical malpractice bill that would drastically limit the people's ability to obtain medical negligence justice in New Hampshire.

Article:  Nashua Telegraph: House eyes bill to screen, trim medical malpractice suits

MRSA and Hospital Acquired Infections

Just a link today.  A couple of days ago I posted about Misdiagnosis of Infections by medical professionals.  I was running around on the Internet and I came across this website that has A LOT of information on resistant staph infections (MRSA).  I have only begun to work my way through the site, but there appears to be quite a bit on MRSA there.

Here's the link:  MRSA Website

NPR Report on Medical Malpractice Panels

NPR had a report on Medical Malpractice panels.  The report focuses more on why the medical community thinks that these are a good idea and focuses on the NH Senate Version of the plan.  It raises a good point when it asks why a panel is needed at all if the doctors are right and there is no frivolous lawsuit problem in NH.

The panel is just a way to increase the cost to medical malpractice claims in New Hampshire.  This will make them more expensive and more difficult to pursue and that is what malpractice insurance companies want.  Make it more difficult so that there are fewer claims that have to be paid.

Link to NPR Article and Audio report

Misdiagnosis of Cancer

Hundreds of Thousands of people each year get cancer.  Everyone knows that.  A certain small percentage of those cancer cases are also malpractice cases.  Why?

If you have an x-ray and that x-ray shows a suspicious spot, then you should get that worked up and determine if that spot is lung cancer.  If that workup is not done and it develops into untreatable lung cancer then the fact that there was a delay in telling you and treating the cancer can mean that there is a medical malpractice case there.  That's lung cancer, we also see this is a few other types of cancer.  Namely:

• Cervical Cancer (Where the misdiagnosis is the misreading of a pap smear)
• Colon Cancer (Misdiagnosis from not testing or misreading the tests)
• Breast Cancer (Misdiagnosis from misreading the mammogram)
• Prostate Cancer (Misdiagnosis from failure to test or misreading results of the testing)

These are a few examples where misdiagnosis of cancer leads to medical negligence claims.  I have a post on another blog with some more information if you are interested.  Other post

5% of Doctors Responsible for 50% of Malpractice Claims

This is an entry I just posted on my other blog. According to a study done by Public Citizen, most malpractice claims are caused by a very small percentage of doctors.

You can read the entire post there.

Misdiagnosis of Infection

Infections are pretty common in hospitals.  This is true even though there are a lot of infection controls put in place.  Even with all of the controls you still have the fact that a lot of sick people travel through hospitals and there is quite a bit of interaction between patients and treating nurses and doctors.  These infections are sometimes called Hospital Acquired Infections.

For the most part these hospital infections are not the result of malpractice, but in two situations they can be. 

1. Where infection control standards are not followed or properly put in place, these can be as simple as not providing the correct dosage of antibiotic after surgery or failing to properly clean instruments.  It is important that hospitals and medical personnel keep up on these changing standards for keeping hospitals infection an bacteria free.
2. Failing to diagnose infection

Failing to diagnose an infection is probably the more common medical malpractice case.  This is because you are dealing with one patient and the interaction between the hospital and that one patient. You do not have to prove that the Hospital "system" was broken only that the medical treatment this person received was below standard.

We represented a patient many years ago where he had a surgery on his back.  That surgery went well.  BUT he began developing symptoms that looked like infection.  He had pain that increased and had a temperature.  When he presented to the doctor these symptoms were not recognized for what they were, which was a developing infection in his spine.  When a doctor finally ordered a test to see his spine, the doctor saw fluid building up in the spinal cord area.  He thought it was blood from the surgery.  It wasn't.  When he opened up the spine, he found a large abscess.  The result was that this patient suffered a permanent spinal cord injury and paralysis.  This injury was avoidable because the signs of the infection were evident.  They were just not recognized for what they were.

That case resulted in a settlement for the patient that will provide for him through his lifetime.

How long do I have to sue?

We get this question a lot.  As lawyers we also give this answer a lot "It Depends".

But it really does.  How long you have to sue (or file a lawsuit) is determined in New Hampshire by the Statute of Limitations.  Now, how long the statute of limitations is depends on what kind of case you have and sometimes how old you are.

Before I even try to go into this, understand this...Each case is different You have to get specific advice from an attorney on your case.  So talk to a lawyer about your specific case before you go and make any decisions.

In an auto accident in New Hampshire you will generally have three years from the date of the accident to file a lawsuit.  After that if you have not filed, then the courts may throw your case out.

The same is true for New Hampshire Medical Malpractice lawsuits too.  You will have three years from the date of the malpractice to file your case.  Of Course there are exceptions.  Some of those exceptions are: The Discovery Rule:  When did you reasonably discover the all the facts that lead you to think you had a lawsuit.  Another exception is a medical malpractice or injury case involving a child.  If, for example, a child in New Hampshire develops cerebral palsy and it happened at birth, then that child may not have to file a lawsuit until after he or she reaches the age of majority.

The Bottom Line:  You have a limited time to file a lawsuit to protect your case.  Don't wait to long. AND go ask a lawyer about your specific case.  I said it above, but each case is different and it is important to learn how the laws of New Hampshire affect your particular situation.

NH Senate passes Medical Malpractice bill

I mentioned a couple of days ago that the NH House passed a bill created a review system for Medical negligence cases that were filed in NH.  I also mentioned that the Senate was considering a bill as well.  The Senate has passed a bill that is essentially what came out of committee and calls for a review panel.  This is the key difference between the two bills.  The House version calls for a judge to review any NH medical malpractice lawsuit that is filed to determine if it has merit.

The Senate version has the panel review it.  The panel is made up of a judge, lawyer and doctor.  This system mirrors Maine's system, which many people think is unfair to people with malpractice claims because it forces them to present the malpractice claim twice.  Once to the panel and once to the court (jury).

Sources:  The Nashua Telegraph

              Portsmouth Herald

NH Senate Medical Malpractice bill

A couple of days ago I wrote briefly about the House Bill that was to set up a review system for medical malpractice lawsuits in New Hampshire.  See my post here.

Yesterday the New Hampshire Senate Judiciary Committee passed a different version of this bill.  The Senate's version would require that all New Hampshire Medical Negligence cases appear before a panel with three members, A judge, a lawyer and a doctor.  If the panel found unanimously that the malpractice case had no merit then that finding would be admissible in court.  This is Senate Bill 214.  Why not allow a unanimous finding of malpractice to be admissible as well?

The committee eliminated the requirement of a "mini-trial"  I think that is a good move for all involved.  Trying a case twice (Once to the panel and then once to the jury) just makes this more expensive for all.

Source:  The Union Leader

$2 Million award to be appealed.

Well no kidding.  Anytime you see an award from a jury, the first words out of the defense spokesman's mouth are something to effect of..."We are disappointed with the decision of the jury we will certainly appeal this result.  Yadda Yadda."  That's what they have to say.  Sometimes they will actually appeal and other times they say this and then go talk with the plaintiff's lawyers and see if they can settle.

The Nashua Telegraph reports that this 2 million New Hampshire medical malpractice verdict related to a gastric bypass operation.  See Article Here.

Congrats to Maureen Manning, the attorney representing the plaintiff.

Medical Malpractice Bill Passes the house

The New Hampshire House passed a bill yesterday that established a review process for medical malpractice cases in New Hampshire.  Once a case is filed in court then a judge must review the case and determine if it is frivolous or not.  If the cases is justified then the bill requires that the parties sit down and attempt mediation within 45 days.

Source:  The Union Leader

                Nashua Telegraph

This is a compromise measure (to some degree)  In neighboring Maine there is a review panel that has to look at every medical malpractice case that is filed.  That system requires that a panel of three people review the case.  This system has been criticized by some as requiring that the case be tried twice.  Once to the panel and once to the court.  At least this system in NH as proposed by the House has a review by a judge, which should not overly burden either party.  The senate is reviewing a bill that is more similar to the Maine system.

The requirement of a mediation within 45 days may not be workable.  Often cases are not fully developed and understood for several months.  My point.  The defense and the plaintiffs in these medical malpractice claims may not know enough to be able to intelligently settle.

Overall my response is that this is a decent compromise.  Why?  It is trying to address the purported problem of "frivolous lawsuits" by having the med mal lawsuits looked at before they get too far into the court system.   A measure that caps damages does not address this problem.  It only serves to harm the people who actually have malpractice cases.