Brazil Woman Finds ‘Dead’ Mother Alive in Morgue

Rosangela Celestrino was called to a Rio de Janeiro hospital to identify her mother’s body on September 23, 2011, only to find that her mother was still alive.

The mother was initially admitted to the Hospital Estadual Adao Pereira Nunes for a pulmonary infection. Doctors had pronounced 60-year-old Rosa Celestrino de Assis dead, and she was placed in the refrigerated drawer of a hospital morgue for two hours.

“I went to kiss my mom, and she was breathing.”

The mother was immediately taken to the ICU, intubated again, and put on a respirator.

The nurse who first suspected the mother was dead was fired and the doctor who pronounced her dead had resigned. The Celestrino family made a police complaint. If medical negligence is proven, the family could sue the hospital for personal injury. If the mother dies, the family can file a wrongful death suit for manslaughter.

Medical Malpractice Protections Extended to EMTs While Driving

In February of this year, the California Court of Appeals extended the protections afforded to medical doctors under the Medical Injury Compensation Reform Act (MICRA) to emergency medical technicians (EMTs) who are in the process of transporting patients for medical care.

In the opinion by Justice Madeleine Flier, the Court of Appeal held that such protections were warranted since the services provided by EMTs were “inextricably identified” with the health and medical care of their patients. Further, the Court rejected the argument by the plaintiff, a Los Angeles police officer injured while riding along in the ambulance when it was involved in a collision, that MICRA protections could only be extended to those services to which an EMT was licensed. The court held that EMTs were licensed to provide transportation by the Department of Motor Vehicles’ special license and, therefore, were still protected by MICRA when involved in traffic accidents while transporting patients.

San Diego Man Awarded $5.7 Million for Undiagnosed Skin Cancer

It’s always nice to trumpet the accomplishments of friends and their deserving clients.

Last Friday, a San Diego Superior Court jury awarded $5.7 million verdict to a bedridden San Diego man who claimed a doctor failed to diagnose his skin cancer. Under the Medical Injury Compensation Reform Act, the award will be reduced to $1.9 million. The 1975 state act requires the court to cut general damages to $250,000 in medical-malpractice cases. It is the largest medical malpractice award in the state this year. The verdict came after a four week trial.

The jury agreed that the plaintiff, Regis M. Reilly, 53, suffered from life-threatening skin cancer after dermatologist James C. Powers failed to remove cysts on the right shoulder that eventually metastasized into cancer.

Reilly’s attorney, Denise Asher, said she was pleased by the size of the award because it represented a sum large enough to offset the trauma caused by the misdiagnosis.

“When you see pictures of the cysts, they are football-sized and deep in the tissue,” Asher said. Reilly went through a series of surgeries to remove the cancerous tissue. His wife, Karen Reilly, served as his nurse during the multiple surgeries and radiation treatments.

Reilly is confined to his home under around-the-clock medical care and had to be hospitalized during trial.

Good job, Denise.

House Investigates Defective Medical Device Protections

Earlier this year, the United States Supreme Court held in Riegel v. Medtronic that lawsuits based upon state tort law were preempted (barred) by federal law IF the FDA had granted the alleged defective product “pre-market approval” as a medical device.

The protections given to medical device manufacturers in Riegel may be extended to pharmaceutical drug manufacturers when the Supreme Court hears Wyeth v. Levine later this year.

However, Congress is looking at legislatively reversing the Supreme Court’s ruling. Beginning tomorrow, hearings will be held in the House Committee on Oversight and Government Reform to discuss the effect of the Riegel decision and the effect an extension in Wyeth may have.

Write your Congressman and Senators and tell them that legislative reform is needed to provide protections to victims of defectively designed medical devices. If a medical product is defective, a manufacturer should not escape liability simply because the FDA signed off on it–perhaps before the actual defect is discovered after long-term human use.

Nevada May Lift Medical Malpractice Damages Cap; Should California Do the Same?

Well, it looks like the Nevada Medical Malpractice Reform Law may not see its’ fifth birthday–or at least its’ damage cap provision may not. Nevada legislators are considering overturning or raising the $350,000 cap for “pain and suffering” damages arising from medical malpractice.

The reason? Recent scandalous, unethical, and dangerous behavior by doctors in the state have led legislators to realize that damage caps hurt consumers while protecting negligent doctors.

We’ve taken a look at these developments and what it might mean for California’s MICRA damage cap of $250,000.

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Resources: https://en.wikipedia.org/wiki/Medical_Injury_Compensation_Reform_Act

One of Tort Reform’s Biggest Lies Disproved….Again

We’ve written twice now about Oklahoma’s current tort reform efforts led by Republican Senate President Pro Tem Tom Glenn Coffee (R–Oklahoma City), a former medical malpractice defense lawyer.

One of the big myths leading the Oklahoma tort reform movement and tort reform, in general, is that without tort reform, doctors will flee to other jurisdictions with tort reform. The argument goes that with tort reform, medical malpractice insurance rates go down and attract doctors–while high insurance rates drive doctors away.

The problem is that the data does not support the myth. That is the case again in Oklahoma. According to this Edmond, OK news story, the number of Oklahoma doctors is increasing even while the tort reform movement is claiming they are fleeing. In addition, the doctor-owned medical malpractice insurance carrier, Physicians Liability Insurance Company, is in the best financial shape in its three-decade-long existence. The company is posting record profits and will be the clear winner if the Oklahoma tort reform bill passes limiting injured medical patient’s right to be compensated for injuries caused by their professionally negligent doctors.

Like any political issue, it is always important to look and investigate the real data underlying the tort reform movement. Is there a real reason to substantially limit injury victim’s right to justice? If so, what is the purported benefit? And, last, is that benefit worth the cost? In almost all cases, the answer to these tort reform questions is “No”.

If you or any of your loved ones have been injured or killed due to medical malpractice, contact San Diego medical malpractice lawyer and the San Diego personal injury attorneys.

El Cajon Psychiatrist, Dr. Wayne Funk, Accused of Collecting And Dispensing Surplus Medication Pills to Patients

Dr. Wayne Funk, a longtime psychiatrist in El Cajon, is fighting to keep his medical license after being accused of medical malpractice by the Medical Board of California. The 87-year-old doctor is thought to have been collecting powerful surplus painkillers and sedatives, such as Oxycodone, Diazepam, Lorazepam and Temazepam, from his patients and then redistributing them to other patients as a means of making them cheaper.

Funk, licensed in California since 1954, was subject to an investigation started a year ago by the Medical Board of California and the U.S. Drug Enforcement Agency. According to the accusation filed in the Administrative Law Court, “the investigators observed a counter with numerous sample medications and a basket containing prescription bottles, including controlled substances, which were returned by patients.”

The University of Kansas school of medicine graduate is also being accused of prescribing the anti-anxiety drug, Xanax, to a patient over a two month period without any proper reviews or examinations. The patient had to later seek medical attention from another doctor for detoxification.

During the investigation, Funk surrendered his DEA certificate to dispense controlled substances but denies any wrongdoing. No hearing date has been set.

The Arbitrary and Unfair Impact of Tort Reform

Earlier today, my friend and New York medical malpractice attorney, Gerry Oginski posted on Facebook to a New York medical malpractice verdict against a podiatrist. The verdict was noteworthy in that the jury awarded $3,000,000 for the victim’s pain and suffering ($1.5 million for past pain and suffering and $1.5 million for future pain and suffering).

This sparked a discussion amongst several lawyers from throughout the country about how inequitable tort reform laws are to the victim solely because of where they choose to live or receive medical treatment.

In New York, there is no tort reform cap on pain and suffering damages. Therefore, the $3,000,000 verdict, so long as it is supported by evidence, will not be reduced. However, here in California, we have MICRA–California’s tort reform measure which places certain limits and requirements on medical malpractice lawyers and their injured clients. Specifically, the California legislature has placed a cap on pain and suffering at $250,000. It does not matter how badly injured you are, whether you need constant medication to live with moderate pain for the rest of your life, had 2 wrong limbs amputated, etc. California has decided that under NO circumstances is anyone’s pain and suffering worth more than $250,000 when injured by a doctor.

So, let’s assume that we have 2 people who have suffered the same injury and have the same prognosis. The only difference is that one was injured by a New York doctor and the other by a California doctor. The former victim will get compensated $3,000,000 for his pain and suffering while the other will only recover $250,000.

That is just not fair or right.

The tort reform mess gets even worse in other states, such as in Indiana. In the Hoosier State, total damages are capped at $1.25 million for all damages. This is true even if current and future medical treatment exceed $10 million and lost wages are $3 million or more.

This inequality in results, based solely on geographic location where the injury occurred, cannot stand. Tort reform has created this and many other unfair results for injured people, all in the name of saving society from runaway litigation costs–which have been proven time and time again not to exist.

One of these days, the public will hopefully wake up and rescind these unfair tort reform laws. Until then, these unequal results will continue.

The Oklahoma Expert Certification Tort Reform Bill: A Good Idea or Does It Not Go Far Enough?

The Oklahoma legislature is currently considering a tort reform bill that would require people wishing to file a civil lawsuit for professional negligence (medical malpractice, accounting malpractice, legal malpractice, etc.) to obtain and attach an affidavit that the person has consulted with a qualified expert who has reviewed the facts of the case. The bill addresses all professional negligence but there can be no doubt that its’ main goal is to reduce the number of medical malpractice lawsuits by prohibiting lawsuits without expert support.

The affidavit must include a statement that the expert has provided a written opinion to support the allegation of professional negligence. If the affidavit is not filed, the lawsuit may be dismissed.

The bill, House Bill 1570, is similar to a bill vetoed by Oklahoma’s governor last year. Six states, including Georgia, Minnesota, Missouri, Nevada, New York, and Pennsylvania, already require expert certification before filing a professional negligence lawsuit. The cost of having an expert review medical records and provide a written opinion can cost anywhere from $1,000 to $5,000 in most cases. The news story cites an example where an expert charged a medical malpractice victim $12,000 for his pre-litigation expert opinion.

The NewsOK.com news story prompted me to post a provocative tweet on Twitter, which then received several comments from Walter Olson of the legal reform website Overlawyered.com and Chris Davis of the Seattle personal injury law firm, the Davis Law Group.

My original opinion was that the Oklahoma expert certification bill is actually a good tort reform idea because it only requires an injured person to obtain a supporting expert opinion prior to filing suit–something any good and responsible medical malpractice attorney do. To prevail in a claim of medical malpractice, the person alleging the injury must prove that the doctor breached the professional standard of care for their field and that this breach actually caused the injury. To do this, an expert witness in the same field as the defendant doctor must be hired to review the medical records of the injured patient. While the bill places a burden on the injured patient’s right to access to the courts, it merely requires what careful and prudent medical malpractice lawyers already do.

On the other hand, is the Oklahoma legislature ignoring a second equally obvious method of expert certification which would further reduce the waste caused by “frivolous” lawsuits.

In response to my original Twitter post, Chris Davis suggests that the Oklahoma legislature also require defendant doctors obtain expert certification that they did not breach the professional standard of care. In other words, what is good for the goose is good for the gander. Mr. Davis points out, rightly so, that a great deal of time, money, and resources are wasted in litigation fighting “frivolous defenses” created by the defendant to muddy the waters at trial. Remember, the injured patient bears the burden of proof at trial. It is a tried and true defense tactic to “throw mud” at trial–to raise irrelevant but upsetting facts–in the hopes the jury will be so confused that they will find for the defendant doctor. Much of the discovery process is spent trying to eliminate as many of these frivolous defenses as possible.

By eliminating the frivolous defense of claiming that the defendant doctor did not commit malpractice–perhaps along with an attorneys’ fees and cost penalty against the doctor if a jury found that the doctor had indeed committed malpractice–the scope of disputed issues would be greatly eliminated, saving litigation costs and judicial resources.

Perhaps the Oklahoma legislature should be encouraged to go one step further in its’ tort reform efforts.

San Diego Medical Malpractice Caused by Unlicensed Doctor

A Chula Vista woman was sent to jail recently after pleading guilty to committing medical malpractice by performing abortions without a medical license. Bertha Bugarin plead guilty to nine counts of practicing medicine without a license, one felony count of grand theft, and one misdemeanor count of “dispensing dangerous drugs” to her patients at her Chula Vista clinic where she claimed to be a doctor.

The arrest and prosecution of Bugarin occurred after Michael Varga, a Chula Vista Police officer assigned to the department’s Special Investigations Unit, interviewed women about abortions they had received at Clinica Medica Para La Mujer de Hoy, a storefront clinic located on Broadway in Chula Vista that catered to low-income, Spanish-speaking women.

Varga’s investigation led to identifying Bugarin as the leader of an illegal medical facility and abortion clinic. Bugarin, the investigation found, was a layperson who claimed to be the owner and manager of the Chula Vista cash only clinic, as well as five other similar clinics in Los Angeles and Orange counties.

San Diego Man Allegedly Committed Medical Malpractice by Selling Unapproved Medical Devices

James Folsom, 68 of San Diego, faces 26 felony counts for medical malpractice by selling illegal medical devices in San Diego that he claimed would treat a variety of medical conditions through the passage of electrical currents. He faces 140 years in prison and $500,000 in fines if convicted, according to this news story in the San Diego Union-Tribune.

Since 1997, Folsom sold approximately 9,000 devices, such as NatureTronics, AstroPulse, BioSolutions, Energy Wellness, and Global Wellness to both retail and wholesale consumers generating more than $8 million in revenue for himself in the process. Assistant U.S. Attorney Melanie Pierson said that this is the largest case involving illegal medical devices in the 20 years that she has worked as a federal prosecutor in San Diego County.

Folsom is an ex-business partner to a Fallbrook woman named Kimberly Bailey who sold similar devices until convicted in 2002 for planning the torture and murder of another man who was her business partner and lover.

The device sold by Folsom is made up of a small black box with dials, a digital screen, and wires leading to a pair of stainless steel cylinders or metal plates. The box is plugged into an electrical socket, and a patient holds the cylinders or stands on the plates. According to Folsom’s marketing, the device destroys diseased cells in the body with the use of electrical frequencies.

Prosecutors also allege that Folsom conducted business under false names and the United States Food and Drug Administration states that the device was never approved for use as a medical device in the United States.

Lemon Grove Rehab Center Accused of Medical Malpractice Death

On February 12, 2008, the California Department of Public Health issued an “AA” citation against the Lemon Grove Care and Rehabilitation Center. The Center was cited due to accusations of inadequate care and neglect, leading to a patient’s death.

The Director of the California Department of Public Health, Dr. Mark Horton, stated that the citation was issued because the Lemon Grove Center did not adequately protect the health and safety of its residents. Dr. Horton added that the Center failed to provide adequate supervision of its’ employees and residents, resulting in one patient suffering fatal injuries.

The citation process of the California Department of Public Health ranges from “B” to “AA” and is a part of its ongoing effort to improve the quality of care provided by California’s 1,400 skilled nursing facilities.

The Lemon Grove center was fined $80,000.

The State of California imposes a variety of legal requirements designed to protect those under the care of nursing homes or treatment centers. If you or a loved one has been seriously injured by neglect in a nursing home or while under dependent adult care, contact the experienced nursing home abuse lawyers.

New Surgical Checklist May Reduce San Diego Medical Deaths and Complications

San Diego patients may benefit from new safety checklists.

The World Health Organization estimates that approximately 500,000 surgical deaths and complications occur worldwide every year due to inexcusable medical malpractice. Too many times patients have signed incorrect surgical consent forms allowing medical staff to incorrectly label them for a planned procedure. Nurses have documented patient safety measures that never actually occurred. Doctors have injected medications that were not labeled on the surgical field. The list goes on.

In order to address this issue, the World Health Organization, along with the Harvard School of Public Health, has launched its first “Safe Surgery Saves Lives” campaign. The study is based on the theory that a one-page surgery checklist developed by several world surgical experts will greatly reduce errors and omissions in the Operating Room.

The study, conducted with the participation of 3,955 patients in eight different cities, demonstrated that this low-cost and low-tech tool significantly reduced surgical mortality and morbidity rates.

The annual savings from the prevention of major complications in the Operating Room can be anywhere from $15 billion to $25 billion. Encouraged by this thought, the Institute for Healthcare Improvements and the World Health Organization have initiated the “Sprint” challenge: to have every hospital in the country utilize the surgical safety list with at least one surgical team by April 1, 2009.

California Medical Board Allows Doctor to Keep License After Aiding Illegal Abortions

The California Medical Board permitted a doctor to keep his license after committing medical malpractice by aiding an unlicensed doctor perform illegal abortions. Dr. Mohammad Bararsani, who runs a cash-only abortion business at his Women’s Care Center on Crenshaw Boulevard in Torrance, California, was also charged with seven other cases of negligence and incompetence. Associates of Dr. Barasani have committed medical malpractice by performing abortions in San Diego without a medical license.

The charges against Dr. Bararsani arise from his actions to help Edgar Ruiz perform illegal abortions.

This is not the first time Dr. Barasani has worked with people performing illegal abortions. Bararsani, a 1964 graduate of Tehran University School of Medicine, has worked with Edgar Ruiz, a doctor licensed in Nicaragua. He has also worked with Bertha Bugarin who is awaiting sentencing for posing as a doctor and performing illegal abortions in both Los Angeles and San Diego counties.

For whatever reason, the California Medical Board decided to allow Dr. Barasani to keep his medical license after performing some minor probation tasks. For his probation, he must complete an education course, a medical records class, and is prohibited from supervising physician’s assistants.

Although the topic of abortions is usually a lightning rod topic, it is important to remember that it is a medical procedure. It is also a medical procedure that presents risks of infertility, infection, and even death. Quite honestly, it is amazing that the California Medical Board did not do more to protect Californians—and San Diegans—from his practice of using unlicensed doctors to perform abortions on low-income women.

California Emergency Room Doctors Sue State For Failing Health Care System

California emergency room doctors have filed a class-action lawsuit against the State of California alleging that California’s healthcare system–stretched and burdened by its’ thin budget and high demand for services–is about to collapse on itself. The suit comes at a time when hospitals and emergency rooms are closing at alarming numbers, leading to limited emergency care for injured Californians.

The situation is only becoming worse with the State proposing $1.1 billion in cuts to MediCal, California’s low-income health payment system.

This is the second lawsuit brought by doctors against the State of California within a year. In the first lawsuit, led by the California Medical Association, doctors were able to obtain an injunction against the State’s proposal to cut MediCal reimbursement rates to healthcare providers by 10%. The State instead reduced current reimbursement rates by 1% to 5%.

Emergency room doctors have been particularly hard hit by the healthcare crisis since, unlike other doctors, they cannot choose to turn away low-income patients who rely on MediCal.

MSNBC Takes on Federal Medical Device Preemption

Federal preemption of state laws is a dry subject. It puts lawyers and law students asleep.

However, the consequences of preemption can be both real and significant.

The Supreme Court recently in Riegel v. Medtronic decided that a state tort injury actions for defective medical devices are barred when the FDA grants the device premarket approval through the federal Medical Devices Act.

With such a technical ruling, the national media has largely ignored the far-reaching significance of this ruling. However, MSNBC’s Keith Olberman recently took on the federal preemption issue in Riegel–and took the opportunity to bash Bush (shocker!)–in his usual one-sided presentation of facts.

Like Ronald Miller of the Maryland Injury Lawyer Blog, who drew our attention to the video, I’m not a big fan of Olberman. In fact, I’d probably agree to any derogatory term used to describe him and he hasn’t been funny or clever since his time on ESPN. But he deserves some credit for taking notice of this ruling.