Atlanta Injury Lawyer Blog

On April 9, 2008 I tried a bench trial and secured a $2.5 million verdict in DeKalb County, Georgia State Court on behalf of my clients for the loss of their unborn child due to medical malpractice. The trial was at the DeKalb County Courthouse in Decatur, Georgia. This was a tragedy to my clients that, as with all medical malpractice cases, never should have happened. The case involved a claim for the wrongful death of a 14-16 week old fetus.
The medical malpractice action arose when a doctor failed to see the fetus on
sonograms. The obstetrician told my client he could not see a fetus in her womb on ultrasound and recommended she undergo a procedure to remove any "byproducts of conception." He then conducted a defective D & C and prescribed a medicine, Methotrexate, (which is essentially chemotherapy)
to make sure any "conception" was killed. After the D & C, my client returned home where
she gave birth to a fairly well formed, but now dead, fetus. I secured the cooperation and testimony of the subsequent treating obstetrician who testified that the
fetus was absolutely fine and would have developed properly.

The trial was brief. The DeKalb County State Court judge heard the evidence, took a 15 minute recess, and returned with a verdict of $2.5 million.

My clients will never get their child back (who, by the way, would be about two years old right now and delighting the family in everything he did), but at least the verdict might give them some small sense of justice.

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It's not news that doctors protect their own, although that fact is now proven. In a recent study, 46 percent of physicians surveyed admitted they knew of a serious medical error that had been made but did not tell authorities about it. This in spite of the fact that in 2000, the U.S. Institute of Medicine reported that up to 98,000 people die every year because of medical errors in hospitals alone.

There is probably plenty of blame to go around for this phenomenon: inadequate State Medical Boards, hospitals that profit off of physicians, and an attitude of many physicians that they simply should not be held accountable for their errors, because, they are, after all, doctors. Let's hope the Georgia Composite State Board of Medical Examiners, the Board that oversees all physicians licensed here in Georgia, does a better job of cleaning their own house. Plaintiffs' trial lawyers who handle medical malpractice cases here in Georgia, as I do, will do everything we can to hold negligent physicians accountable in a civil court of law, as long as the Georgia Legislature stops limiting a Georgia citizen's access to the courts and, thereby, to justice.

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It is hard to believe this actually happened, I know, but in a Rhode Island hospital, there have been three botched brain surgeries in the last ten months in which the physician operated on the wrong side of the brain! In two cases, the doctors did not realize the errors until after they had opened the skull. This is not just rotten luck: this is evidence of a significant systems failure in that hospital.

We, as Georgia citizens, can only hope we would be better served by our hospitals and our physicians, and that the Georgia Composite State Board of Medical Examiners would be more diligent in weeding out incompetent doctors. We place our lives and the lives of our loved ones in the hands of these physicians and we expect some minimum level of competence, which clearly is absent if the physician operates on the wrong side of the body.

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I am very pleased to announce a $10 Million verdict by a Bibb County jury for a woman who was made severely ill by a laparotomy pad (sponge) left in her stomach by her doctors during surgery. Although the sponge left by the doctors was discovered in her stomach about a week after it was negligently left there, it had already poisoned the unfortunate woman so severely that it caused kidney damage and blindness.She also suffered severe memory loss and depression. The verdict was against the hospital due to the failure by the hospital's nurses to keep an accurate sponge count during and after the surgery. The injured woman had approximately $800,000.00 in medical bills to treat all of the new medical problems caused by the sponge that was not supposed to have been left in her body.

Georgia citizens take heart! So often insurance carriers play the "conservative county" card in trying to lowball plaintiffs in settlement negotiations, and Bibb County is certainly perceived as a "conservative county." I think what this means is that the good people of Bibb County know real medical malpractice and a real tragedy when they see one and will gladly give appropriate financial relief to balance the harm that is often done by rampant medical malpractice. The Bibb County jury rendered justice as they saw fit,and their verdict is nothing short of an affirmation of the jury system, so preciously protected by the 7th Amendment to the Constitution.

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We can only hope so.

An Illinois Circuit Court yesterday held the cap on damages in Illinois to be unconstitutional. This took great courage by the Illinois Circuit Judge to call a spade a spade and she did just that, without regard for the inevitable political consequences her decision may have.

In the Illinois case, the ruling came in the case of Abigaile LeBron, whose family last December sued Gottlieb Memorial Hospital in Melrose Park and Dr. Roberto Levi-D'Ancona for not acting quickly enough when Abigaile's mother began showing problems during her October 2005 birth. Abigaile was left with severe brain damage and other developmental problems. With such severe brain damage, there is no question that it will take millions of dollars to raise this child and to provide appropriate medical care for the rest of her life.

The Illinois cap on noneconomic damages is even more generous than the Georgia cap: in Illinois, the plaintiff's recovery is limited to $500,000.00 against the physician and to $1 million against the hospital. Unfortunately, for Georgia citizens, our recovery here in Georgia in medical malpractice cases is limited to $350,000.00, a ridiculous, arbitrary amount assigned by the Georgia Legislature. Like Georgia's law, the Illinois law went into effect in 2005. Georgia Trial Lawyers Association is looking right now for the appropriate case to challenge the constitutionality of the damages cap. Because a verdict above $350,000.00 may be necessary to be able to challenge it, it may be awhile before a case here in Georgia is ripe to take to the Georgia Supreme Court. Georgia citizens can only hope and pray that when that appropriate case finds its way there, the Georgia Supreme Court Justices will show as much courage and guts as did the Illinois Circuit Court judge did in finding that cap unconstitutional and that our Justices will also disregard any potential political ramifications of their all important decision. The Citizens of Georgia deserve at least this from the Georgia Supreme Court.

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The answer is probably yes.
Georgia hospitals, along with most other hospitals in the United States, most likely discriminate against the uninsured, or those patients insured through either Medicare or Medicaid. A new study regarding patients with appendicitis certainly seems to prove the theory. This study, appearing last month in The Journal of the American College of Surgeons, used state data from 2003 and 2004 in New York and included 26,637 appendicitis patients, of whom 7,969 had a ruptured appendix. There were no significant differences in the likelihood of perforation among whites, African-Americans, Hispanics and Asians. Compared with patients who had private insurance coverage, those on Medicare were 14 percent more likely to have a burst appendix, people on Medicaid were 22 percent more likely, and those with no insurance at all were 18 percent more likely to have a rupture.

This is obviously not a very kind commentary on our nation's hospitals. Once again, it is a tell of the haves and the have-nots, as Senator John Edwards often puts it, because those who "have" private insurance get proper medical care for appendicitis well before the appendix becomes so diseased and inflamed that it ruptures and then must be removed on an emergency basis. Those who do "not have" private insurance get ignored with complaints of abdominal pain until the appendix ruptures, leading to emergency surgery, and, ironically, potentially higher medical costs.

I have strongly suspected Georgia hospitals discriminate in favor of those lucky patients who have their own private health insurance, ever since I tried an obstetrical malpractice case in Gainesville, Hall County, Georgia, where the hospital emergency department literally ignored a pregnant woman bleeding in the ER chairs. That unfortunate woman was on Medicaid. I believe had she had private insurance, instead of Medicaid, the nurses would not have left her in the ER bleeding so long until her baby had to be delivered by emergency C section and only then suffering from extreme hypoxia, or oxygen deprivation. The child later died. This new study seems to suggest I was right.

It also is not a very kind commentary on our society if we are allowing hospitals to get away with this discriminatory treatment. Are the hospitals saying only the well-off patients who can afford their own private insurance get our very best medical care? I hope in our supposedly civilized society this isn't true; otherwise, God help us.

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Put another one in the "win" column for the good guys. As Immediate Past President of Georgia Trial Lawyers Association ("GTLA"), I am proud to announce that GTLA's Constitutional Challenge Committee, chaired by Lyle Warshauer and Matt Nasrallah, won another round in the ongoing effort to restore Georgian's rights by eliminating the horrible law now infamously known as "SB3." The particular provision that the Georgia Supreme Court ruled unconstitutional this time is 9-11-9.2, which required a plaintiff to file an all-encompassing medical authorization with the plaintiff's complaint in any medical malpractice action. the Supreme Court held O.C.G.A. § 9-11-9.2 is preempted by the federal privacy provisions of the Health Insurance Portability and Accountability Act of 1996, or HIPAA. To read the full article, click here.

Zachary H. Thomas of Savage, Turner, Pinson & Karsman in Savannah, another proud GTLA member, represented the winning appellees. GLTA filed an Amicus Brief in the Supreme Court arguing in favor of holding the provision unconstitutional, not only on the basis of Federal Preemption, but also because it was a roadblock to any plaintiff's ability to file a medical malpractice action.

I congratulate the GTLA Constitutional Challenge Committee and Zach Thomas for this wonderful win on behalf of Georgia citizens. We are slowly but steadily dismantling the horrendous SB3 and restoring the rights to due process to Georgia citizens, and I am proud of it.

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I have had several occasions to observe personally that U.S. hospitals, including those right here in Fulton County, Georgia, charge uninsured patients more than insured patients, and, therefore, are discriminating against the uninsured every day. This has become obvious to me simply by comparing my case files in which my client is insured with health insurance versus my case files in which my client is not insured. The contrast is stark and leads me to conclude that U.S. hospitals discriminate against the uninsured by charging them more for the exact same medical services and products than they do insured patients.
Now there is absolute proof of this. Amazingly, it comes from one of their own, Gerard Anderson, Director of the Center for Hospital Finance and Management at Johns Hopkins University's school of public health, the author of the study which was published May-June issue of the journal Health Affairs. The study showed that in 2004, the most recent year for which data was available, hospital patients without health insurance and others who pay for medical care out of their own pockets were charged an average 2.57 times more than those with health insurance. Hospitals in the United States have come under fire from patient groups and lawmakers for marking up prices for those lacking the negotiating clout of a health insurer. But the price discrepancies are steadily worsening despite some reform efforts, the article said.

"The mark-up on hospital care for these individuals, especially for those who can afford it least, is unjustifiable," said Anderson. More than 60 class-action lawsuits have been filed against U.S. hospitals over the issue. Anderson has been an adviser on some of them. About a year ago, the American Hospital Association enacted a voluntary policy for poor and uninsured patients.

But that policy has yet to show an impact and it is unclear how many hospitals are abiding by the price suggestions, Anderson said.

Anderson recommends pursing the ongoing class-action lawsuits and having the government set a maximum amount that hospitals can charge as prescriptions to remedy the problem.

Continue reading "U.S. Hospitals Discriminate Against the Uninsured" »

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