Los Angeles Injury Lawyer Blog

This is the third in a three-part series about birth injuries in Los Angeles County.

Macrosomia is a condition in which a fetus’ birth weight is much greater than is normal during pregnancy. Generally, macrosomia is defined as a birth weight greater than 4000 grams or 8 pounds, 13 ounces. It is a condition that affects one in ten pregnancies.

Some factors that contribute to macrosomia - genetics, ethnicity, and the size of the parents - cannot be controlled. Other factors that may predispose a fetus to unusual growth in utero can be identified and should be addressed by the obstetrician. If the mother has gestational diabetes, excessive weight gain or diabetes mellitus, her fetus is at risk to develop macrosomia, which is associated with birth trauma to the baby and mother. Women whose pregnancies go on longer than they should are also at risk to develop macrosomic babies.

The larger the fetus, the greater likelihood that the baby and/or mother will suffer injuries during delivery. If there is ultrasound evidence that the baby is very large, the doctor needs to take this into consideration when discussing delivery options with the parents.

A woman with a history of having had several large babies without difficulty vaginally may be an appropriate candidate for a vaginal delivery. A petite woman pregnant with a first baby that appears on ultrasound to weigh nearly ten pounds, should be advised of the risks of vaginal delivery and advised to undergo a planned Cesarean section.

Continue reading "Southern California Doctors' Medical Malpractice Causing Erb's Palsy" »

This is part two in a series of three relating to birth injuries in Los Angeles County.

Cerebral palsy, or CP, is a term that is used to describe a group of chronic conditions that result from injury to the brain, usually occurring before, during or shortly after birth. It generally affects motor function - how the body moves. Children with cerebral palsy may have mild symptoms affecting coordination or may be completely unable to control motor function, making it impossible to sit or stand independently.

Cerebral palsy can occur when oxygen to the fetus is interrupted during labor or delivery. Monitoring of the baby during labor is done to detect changes in the baby's heart rate which may signal a problem. If the amount of oxygen the baby is getting is reduced or cut off during labor, the baby's heart rate will change and its ability to recover from the stress caused by contractions will diminish, signaling a potentially catastrophic injury if appropriate medical intervention is not taken in a timely fashion.

It is the job of the obstetrical nurse to monitor the fetus during labor and communicate any significant changes in the fetal heart rate and tone to the obstetrician in a timely fashion. It is the doctor's duty to respond promptly if conservative measures (changing the mother's position, administering oxygen to her, for example) do not improve the fetal heart rate.

If the nurse is unskilled or inattentive, she may not appreciate the fact that the baby is in distress, putting the baby at risk of injury. A doctor who does not respond to a nurse's concern in a timely fashion also puts the baby at risk. Over time, the lack of oxygen can cause the brain damage that results in cerebral palsy.

Continue reading "Southern California Cerebral Palsey Resulting from Medical Malpractice" »

This is the first in a series of three relating to birth injuries in Southern California

Every year, hundreds of babies in Los Angeles County are born into the world seriously handicapped because of medical negligence. Birth injuries are among the most devastating injuries that can occur when a doctor or nurse is careless or inattentive. If a mother's prenatal course is routine and there is no indication of any problems with the fetus she is carrying, the parents anxiously await their new arrival. They pick out names and dream about the future with their new little boy or girl.

When things go awry during the labor or delivery and the baby is born with brain damage or is otherwise injured, everything the parents hoped for and planned is shattered. The baby may have to remain in the hospital long after the mother is discharged, so there are frequent trips back to the hospital. Preparing the home for the baby's discharge is no longer about the color of the nursery or the style of the crib. There may be equipment that must be obtained and medical techniques to be learned.

Caring for a special needs child is a full-time job for one of the parents. Sadly, the full impact of the injury to a birth-injured child often will not be evident until the child is several years old. A special needs infant is easy to carry; a four-year old who cannot sit or walk is much more difficult to transport. Even transferring such a child from his bed to a wheelchair can be challenging. It is often at this point that the parents realize what the future will hold for them and their child. It is also at this point when they are likely to ask why it happened. This is also the point at which the parents may consult a lawyer.

What are the most common causes of birth injury and how can they be prevented? We will look at these issues in the next installments of this series.

A Rhode Island Hospital has been fined for the 3rd instance this year of a doctor performing brain surgery in the wrong side of the patient's head. Last Friday, a chief resident started operating on the wrong side of an 82-year-old patient. In August, a similar error caused the patient's death.

These types of issues are not limited to Rhode Island as this issue is similar to battles we often face at Rice & Bloomfield. What is most frightening is that in Los Angeles, as in all of California, the most that could be recovered from litigation of this type of error is $250,000. From that amount must be paid litigation costs and attorneys fees. Because of that problem, many victims of medical malpractice often cannot find an attorney who will accept there case.

Although we are here to help people who have been injured, we must also make a living. We cannot continue to operate when faced with these type of limitations. This has become a common problem faced by injured patients throughout the state.

Presidential candidate Rudy Giuliani has frequently trumpeted Texas and California as models for providing access to health, citing an example of a doctor who moved from Maine to Texas and had his malpractice insurance premium reduced from $11,300 to $5,031. There is no evidence to tie the premium difference to the medical malpractice cap. Moreover, I find it hard to believe a doctor moved to Texas to save $5,000 per year. That amount would not even cover his moving costs.

Mitt Romney has joined in the insurance industry created hysteria about insurance premiums. He talks about the burden imposed by lottery-sized awards. However, he ignores the incredible burden put on a family who loses a loved one due to a doctor's neglect. Democratic hopeful John Edwards, a former trial lawyer, explains that the cap has little effect on premiums (less than 1%).

We feel that most doctors can certainly afford $11,000, instead of $5,000 to make sure that anyone they hurt is taken care of. I expect most doctors would prefer to make sure people hurt by medical errors are provided for. It is the insurance companies that do not want to take care of people.

Last Sunday the Los Angeles Times printed an article indicating that a family was seeking $45 million from King Harbor hospital for medical malpractice causing death of a patient. The story was misleading, leaving readers with the impression that medical malpractice victims can get rich from lawsuits.

When doctor's negligence, when their mistakes hurt people, the 1975 MICRA law, prevents patients from obtaining justice. The law limits recovery for pain and suffering to $250,000. When first passed, it preventing patients from recovering full compensation for their injuries.

Now, 30 years later, as costs of litigation have gone up but the $250,000 has not changed. As a result, people injured by doctors errors are finding that they often cannot get a lawyer to take their case.

The article published last Sunday indicates that the family is suing for $45 million dollars, but does not mention that their recovery will be limited to $250,000. In response, Linda Rice sent a letter to the Los Angeles Times correcting the error. That letter was published on November 11, 2007.

As printed in the Times, Linda wrote: "A jury might think $45 million is fair and just compensation to the family of the woman who died while hospital personnel ignored her cries of pain for nearly an hour. But the judge will automatically reduce any possible verdict to $250,000 -- the most in noneconomic damages anyone can recover for any injury or death caused by a healthcare provider. The cap was passed at the behest of the insurance industry and medical establishment more than three decades ago. Because it has never been changed or adjusted -- even for inflation -- we may be reaching a point at which letting patients die is more cost-effective than treating them. The public needs to understand this. This article promotes the misconception that people who sue doctors end up rich. That isn't possible in California."

Over the past year, hospitals in Washington left "foreign objects? in 36 surgery patients. 21 patients got surgery on the wrong body part. A Washington law passed last year prevents public disclosure of these types of medical negligence. The law was supported by the Washington State Hospital Association.

Unfortunately, this type of medical malpractice is universal and does occur in Los Angeles area hospitals as well. Although California does not have a similar law, almost anytime a medical malpractice case settles, the settlement includes a confidentiality clause to prevent the patient from telling anyone about the doctor or hospital's negligence.

As a result, in California, Washington, and other states, patients do not have access to information that could be of great assistance in choosing a hospital or a doctor.

While there is an effort to change this damaging Washington law, Californians have no way to escape the confidentiality which accompanies most settlements. There was a recent effort to make it illegal to make a settlement confidential, but such reform efforts were quickly silenced.

Los Angeles patients are often injured by infections which they get because they are in the hospital for treatment for another condition. The risk to a patient of contracting a new illness when seeking medical care may depend on the hospital where care is provided.

If a person is severely injured in a car crash, they may suffer significant injury such as a neck or back disk injury requiring hospitalization and surgery. Some patients contract infections while in the hospital which could make them worse and certainly would prolong recovery.

Each year an estimated 1.7 million hospital patients develop infections which adds thousands of dollars to the cost of treatment. Giving patients an appropriate antibiotic in the hour before surgery has been found to reduce infection risks, as has good hand-washing and other practices. Yet not all hospitals perform such preventive measures with consistency.

Results of a recent survey of Los Angeles Hospitals where patients receive preventative antibiotics one hour before surgery ranked Cedars-Sinai Medical Center as a top rated hospital with more than 95% of patients getting pre-operative antibiotics. At Valley Presbyterian Hospital only 35% of surgical patients received pre-op antibiotics.

Caps on damages in medical negligence cases are making it increasingly difficult for a growing number of patients, injured by preventable medical mistakes, to access our courts.

When Dr. Smith saw Teresa, a 29-year-old single woman, in 2005, she was concerned about what felt like a small lump in her breast. Because she did not have a family history of breast cancer and because she was so young, Dr. Smith decided not to order a mammogram, even though good medical practice required that he do so.

Eighteen months later, Teresa is dying of breast cancer. The tumor she had has grown and spread. What would have been a treatable disease, if Dr. Smith had acted as a reasonably careful physician, is now a death sentence.

Under our civil justice system, Teresa suffered a serious harm for which the law says she should be compensated. Compensation is intended to accomplish two goals: the first is to hold Dr. Smith accountable for thr injury to Teresa caused by his negligence; the second is to discourage future negligence by Dr. Smith and others in similar circumstances.

In California, if Teresa files a lawsuit, the most she can recover because her doctor didn't order a routine test as he was required to do, is $250,000. After the cost of hiring expert witnesses, filing fees, court reporters and after attorneys' fees of 20-25% are paid, Teresa will receive compensation of perhaps $100,000 to $125,000 for the premature ending of her life due to a careless medical error.

Continue reading "A New Year; A New Look at MICRA" »

Two trends we see in medicine, especially in Southern California, are putting an entire population of patients at serious risk: the alarming increase in the incidence of malignant melanoma in the general population during the past twenty-five years and the reliance by most managed care organizations on primary care providers to determine under what circumstances a patient should be referred to a specialist. In no other area of medicine is the restriction of access potentially as deadly as it is in cases involving malignant melanoma.

Failure by primary health care providers, who do not have the extensive training that a dermatologist has, to diagnose and order a biopsy of a suspicious mole can be a potentially fatal medical mistake. Many or most family doctors are not aware of the incidence of malignant melanoma in the population, which has been rising over the past thirty years and is currently estimated to affect 1 in about 85 people in the United States. Alarmingly, while death from most other cancers has stabilized or declined, the mortality rate associated with malignant melanoma continues to rise.

Although fair-skinned individuals and those with many large moles have generally been thought to be at higher risk for developing the disease, an increase in melanoma among Hispanics, especially Hispanic men, has recently been documented. No one should be complacent about irregular-looking skin moles.

I would encourage anyone who has a suspicious-looking mole to immediately consult a dermatologist for evaluation. The National Cancer Institute explains what traits in a mole should cause some concern on the part of a patient. http://www.mpip.org/guide/suspindex.html

If you get your health care through an HMO which requires referral to a specialist, insist that such a referral be made promptly. Most of the cases I have handled over the years in which a failure to diagnose melanoma has occurred involved general practitioners, internists or physicians' assistants.

Melanoma is easily and successfully treated if detected early. Although there are new treatment protocols being developed for treatment of advanced melanoma, a delay in diagnosis is potentially deadly.

Birth injuries occur in approximately 7 out of every 1000 births. The most common injuries are neurologic - they involve the brain or nervous system. Many are preventable; they occur because medical mistakes are made. The injuries may range from relatively minor - weakness in the hand or arm that can be addressed with therapy - to extremely severe. We have represented a number of children unable to walk, talk or care for themselves in any way because of medical malpractice.

The cause of birth injuries very often involve the failure to appropriately monitor the mother during pregnancy or the fetus during labor. Unfortunately, because our health care system is under stress and hospitals often do not have sufficient staff, tragic mistakes can and do occur.

If oxygen to the fetus is disrupted during labor and the problem is not recognized and addressed by doctors or nurses, long-term brain damage may occur. That child may then require life-long care.

A lawsuit may make it possible for the parents to get the help they need to provide around-the-clock care and therapy, which can improve the quality of life for both child and parents. We have helped many parents overwhelmed by the demands an unexpected birth injury can cause and we would be happy to help you or someone you know who is coping with this situation. The earlier we get the call, the more we may be able to do to help.

Dentists routinely pull wisdom teeth without telling patients about the risk of serious injury if the procedure is not done carefully, especially to the lingual nerve. The lingual nerve provides sensation and taste to one-half of the tongue and it is at risk of being cut or damaged every time a lower wisdom tooth is removed.

Unless a patient is in pain or the wisdom teeth are likely to cause injury to other structures in the mouth or to other teeth, there is no justification for extracting third molars, aka, wisdom teeth. The procedure is unnecessary and puts the patient at risk for permanent injury.

It is impossible to estimate the number of unnecessary wisdom teeth that are pulled every year - not to benefit the patient, but to financially benefit the dentist who does the surgery. What is known is that, if the dentist is not careful, cutting the lingual nerve can cause a patient to have permanent loss of taste and sensation to one-half of the tongue. In rare cases of extreme carelessness by the dentist, a patient can permanently lose the ability to feel or taste anything.

We have successfully litigated and settled many lingual nerve cases. Most recently, Todd J. Bloomfield won a $655,000 verdict in Lancaster, California, for a young man with this type of permanent injury. Unfortunately, because a state law known as MICRA - the Medical Injury Compensation Reform Act passed in 1975 - the jury's verdict was reduced by the judge to $250,000, the maximum amount allowed for pain and suffering caused by a doctor.

Before you agree to have your wisdom teeth pulled, ask the doctor why it is necessary and, if you are not satisfied with the answer, consider getting a second opinion. If the surgery is necessary, ask your dentist how many times he has cut the lingual nerve when extracting a lower third molar. Dentists who are routinely careful are unlikely ever to have experienced this complication and should assure you that it cannot happen unless the doctor doing the extraction is careless.

Having a tongue that is permanently numb on one side is a very serious and life-changing injury. Should it happen to someone you know, explain that, in most cases, this cannot happen unless the doctor was negligent. If legal advice is needed, we hope you will consider having him or her call us. We will be happy to help if we can.

The family of a woman, who was hit by a car in a crosswalk and who died after her condition was misdiagnosed, will have the opportunity to ask a jury to award compensation for their loss, thanks to a successful appeal by personal injury lawyer, Todd J. Bloomfield.

The accident and subsequent malpractice occurred in 2001. The case against the driver was settled and in 2003 a jury found that the medical clinic was negligent. However, the jury made an error when it ruled that the negligence was not a substantial factor in causing the woman's death. The experts on both sides agreed that the woman would have lived if the medical clinic had accurately diagnosed and treated her symptoms. The trial court ordered a new trial and the attorneys for the clinic appealed.

The Court of Appeal unanimously agreed that the family was entitled to a partial new trial in light of the jury's error. Another jury will be asked to value the loss to the woman's husband and daughters. The family and Mr. Bloomfield are awaiting a new trial date. The medical clinic refuses to take responsibility for the death and has offered nothing to try to settle the case, despite the jury's finding of negligence.