Associated Press

December 27, 2008

The family of a 17-year-old leukemia patient has sued health insurance giant Cigna Corp. for her death last year after the company initially refused to pay for a liver transplant.

The lawsuit filed last week in Los Angeles County Superior Court by the family’s attorney, Mark Geragos, alleges breach of contract, unfair business practices and intentional infliction of emotional distress. The suit accuses Cigna of delaying and rejecting valid claims, which resulted in the wrongful death of Nataline Sarkisyan.

The Philadelphia insurer eventually approved the transplant after Sarkisyan’s family held a rally outside Cigna’s suburban Los Angeles office. Nataline, however, died hours after the approval was secured.

Chris Curran, a spokesman for Cigna, said the company empathized with the family but believed that the lawsuit was without merit. Curran said Cigna volunteered to pay for the procedure.

“This decision was made despite the fact that Cigna had no obligation to do so and despite concluding, based on the information available, that the treatment would be unproven and ineffective and therefore experimental and not covered by the employer’s benefit plan,” Curran said, reading from a statement.

But Charles Idelson, a spokesman for the California Nurses Assn., said insurance companies were “in business to provide profits for shareholders, not to provide care.”

“Nataline Sarkisyan’s case serves as a tragic poster child for everything that’s wrong with our insurance-based healthcare system,” he said. “Why did it take public humiliation for Cigna Corp. to approve a transplant?”

Nataline was diagnosed with leukemia at 14 and received a bone marrow transplant from her brother the day before Thanksgiving 2007. A complication, however, caused the teen’s liver to fail.

The family had asked Cigna to pay for a liver transplant, but the insurer refused.

In a letter to Cigna, four doctors from Mattel Children’s Hospital at UCLA Medical Center appealed to the insurer to reconsider. They said patients in similar situations who underwent transplants had a six-month survival rate of about 65%.

The insurer eventually reversed the decision while about 150 nurses and community members rallied outside its office in Glendale.

By this time, however, the teen had fallen into a vegetative state and was taken off life support.

12/16/2008 7:33 a.m. AP

LOS ANGELES — Documents show Dennis Quaid and his wife have agreed to a a $750,000 settlement with a hospital that gave his newborn twins an overdose of blood thinner. A petition filed in Los Angeles Superior Court on Monday shows the Quaids and Cedars-Sinai Medical Center have agreed on the parents’ damages, but can still pursue claims for their children.

The documents state Cedars-Sinai is not admitting wrongdoing as part of the settlement.

Documents show the Quaids sued drug maker Baxter Healthcare Corp. in Illinois over the drug’s packaging, but that case has been dismissed. The petition filed Monday indicates Baxter may also sue Cedars-Sinai, which administered too much Heparin to several patients in November 2007, including the Quaids’ twins.

UNION-TRIBUNE

7:18 a.m. December 12, 2008

Family and friends of an Oceanside woman who was killed last year when she fell from a hot-air balloon in New Mexico have reached a $1.4 million settlement in a wrongful-death lawsuit.

Rosemary Wooley Phillips, 60, died during the annual Albuquerque International Balloon Fiesta in October 2007 in New Mexico when the balloon she and others were riding in became tangled in utility cables.

Phillips slipped through a hole torn in the bottom of the basket and fell 70 feet to the ground, according to the lawsuit. She was pronounced dead a short time later at a hospital.

Three other women who were injured in the incident and Phillips’ sister sued the event organizers, the pilot and two New Mexico companies for wrongful death, negligence and intentional infliction of emotional distress.

The settlement was reached Monday, said attorney Greg Patton, who represented the plaintiffs.

Phillips lived in Alaska before moving to Oceanside and in 1989 was executive director of the Iditarod Trail Sled Dog Race. She served on the City Council in Nome, Alaska, from 1978 to 1982.

–D.L.

By Howard Fischer Capitol Media Services

Tucson, Arizona | Published: 12.11.2008

PHOENIX — A veteran state lawmaker is trying again to make it harder for those injured in hospital emergency rooms to sue for damages.

Sen. Carolyn Allen, R-Scottsdale, said Wednesday she is introducing legislation that would require a patient to prove malpractice by “clear and convincing evidence” to win a lawsuit. That is a heavier burden than current law, which says jurors can decide in favor of the patient if they believe it is more likely than not that the doctor committed malpractice.

Allen, who chairs the Committee on Healthcare and Liability Reform, cited a new study by the American College of Emergency Physicians that gives Arizona an “F” in access to emergency care.

She said that grade is based on the unwillingness of doctors to work in emergency rooms. And that, Allen said, is due in part to the fear of lawsuits.

“We have a shortage of doctors,” she said. “And the fact that we could make it easier for them to want to go into emergency-room doctoring could be nothing but a good thing.”

But Tucson attorney JoJene Mills said the change would make it virtually impossible for anyone injured to sue successfully.

Mills, a member of the Arizona Trial Lawyers Association, disputed Allen’s contention that throwing new legal roadblocks in the path of patients will lead to more doctors willing to work in hospital emergency rooms.

“Doctors don’t come to emergency rooms because they don’t get paid because the patients are uninsured,” she said. Mills said that could be one area lawmakers might want to address.

Mills, whose organization represents plaintiffs in lawsuits, also said Allen is missing the point of why people sue in the first place: They get injured. She said there’s a much simpler way of addressing the issue.

“We start reducing medical errors so that doctors won’t get sued as much because they won’t be making as many errors,” Mills said. She said what Allen wants is for patients to give up their rights in exchange for some claim — Mills says unproven — that it will reduce malpractice-insurance premiums.

Allen, however, said there is evidence from other states, which have curbed lawsuits and jury verdicts, that costs do go down.

She acknowledged that her bill alone might not make any difference, but that absolute limits on how much juries can award injured patients would. That issue, however, is off the table, at least for the time being.

Arizona is one of a handful of states with constitutional language barring lawmakers from imposing limits on jury awards. And voters have repeatedly rejected efforts by doctors and the insurance industry to repeal those provisions.

Allen pushed the proposal through the Legislature in 2006 only to have it vetoed by Gov. Janet Napolitano. But Allen noted that Napolitano, President-elect Barack Obama’s choice for U.S. secretary of Homeland Security, will be gone soon, replaced by Secretary of State Jan Brewer, a Republican like Allen.

Craig Norquist, president of the Arizona College of Emergency Physicians, said, “To try to remove any of the barriers to have somebody willing to take calls in the emergency department, or even to work in the emergency department, is going to be beneficial.”

Norquist said it might also encourage doctors from other states wanting to make a change to move here instead of going somewhere else.

“I receive fliers on almost a daily basis to go to work for different emergency-medicine groups in different states,” the Phoenix doctor said. “One of the major advertisements is that they’re in a malpractice- reform state.”

by Sylvia Hsieh

Dolan Media Newswires

Wisconsin Law Journal

December 1, 2008

Boston — A new type of med-mal lawsuit is on the increase — claims based on hospital infections.

Several recent verdicts and settlements illustrate this trend:

On Nov. 6, a jury awarded $13.5 million to a Massachusetts woman who died of an infection caused by flesh-eating bacteria that she contracted during cancer treatment.

On Nov. 14, a Utah woman reached a confidential settlement in a $16 million suit she filed, alleging that a hospital failed to detect necrotizing fasciitis, a flesh-eating bacteria, before and after she gave birth, causing her to lose three limbs and several organs.

In July, a Missouri couple was awarded $2.58 million after the husband contracted a potentially deadly type of staph infection, known as Methicillin Resistant Staph Aureus (MRSA), when doctors inserted a pacemaker. As a result of the infection, the patient lost a kidney and his leg and foot had to be amputated.

The Centers for Disease Control and Prevention (CDC) in Atlanta has estimated that over 2 million hospital-acquired infections occur annually, resulting in 90,000 deaths. In long-term care facilities, the CDC estimates an additional 1.5 million health-care associated infections occur each year.

“This is the next asbestos. Now that the evidence is overwhelming that nearly all infections are preventable, hospitals that don’t follow the proven protocols are inviting lawsuits,” said Betsy McCaughy, founder and chair of the Committee to Reduce Infection Deaths, a non-profit patient safety organization in New York.

According to McCaughy, 26 states have passed laws requiring reporting of hospital-acquired infections.

Plaintiffs’ attorneys say that hospitals can no longer argue that these infections are inevitable.

“Anyone providing health care to an individual is no longer going to have immunity for transmitting infections,” said Gloria Seidule, an attorney with Seidule & Webber in Stuart, Fla., who is currently litigating a hospital-acquired infection lawsuit involving MRSA, a “superbug” that is resistant to most antibiotics.

Seidule said that hospitals in general have not taken the initiative on prevention measures, opening the door to litigation.

Mary Coffey, an attorney at Coffey Nichols in St. Louis, said that “a lot of lawyers think they can’t ever trace an infection and that getting an infection in a hospital is not necessarily negligent, which is true. But I would say you can prove it.”

Coffey won the $2.58 million verdict on behalf of a 69-year-old Missouri man who contracted MRSA through an IV that was administered in the ambulance following a heart attack. When doctors later inserted a pacemaker, the infection spread.

Standard of Care Changing

A number of new guidelines and rules are arguably raising the standard of care that applies to hospitals in preventing infections.

As of Oct. 1, 2008, Medicare has stopped reimbursing for certain types of hospital-acquired infections.

Last year, the CDC published guidelines for preventing infections.

In addition, the Joint Commission, a non-profit organization based in Oakbrook Terrace, Ill., that evaluates and accredits health care programs, released a compendium of strategies for preventing infections in October.

Coffey said that the idea that hospital-acquired infections are preventable is gaining credence and “the standard of care is changing.”

“There are CDC standards on infection prevention and lots of published materials that can be used to establish the standard of care,” she said.

However, Coffey noted that causation is often the more contentious issue.

A plaintiff “is going to need an expert to say, ‘If this precaution had been taken, he would not have gotten this infection.’”

In her case, for example, she was able to show that the patient’s IV site was red, tender and swollen, and that the IV had been left in for three days — contrary to CDC guidelines that say an ambulance IV should be switched to a new one upon arrival at the hospital.

She also argued that under CDC rules, the surgeon should have waited to perform heart surgery until the remote site infection cleared up.

Advising Health Care Providers

At a minimum, attorneys that represent hospitals should advise them to have policies on infection prevention, such as hand-hygiene policies. They should also require clinicians to be trained on preventing recontamination by not opening the privacy curtain once they are in surgical gloves.

The Joint Commission’s compendium contains strategies for hospitals to prioritize and address the most common and deadly infections, including central line associated blood stream infections, surgical site infections, urinary tract infections and MRSA.

But McCaughy said the compendium “set the bar too low.”

She suggests that attorneys advise hospitals to take stronger measures, such as penalizing those who violate hand-hygiene rules and screening incoming patients for MRSA.

McCaughy said hospitals and doctors are more likely to be sued over infections if they don’t implement proven methods to prevent them, such as using a back-up catheter treated with antibiotics to prevent central line blood stream infections. 

“Hospitals that fail to use these backup devices are inviting lawsuits, and surgeons who don’t ask hospitals to have these devices will be vulnerable,” she said.

But Coffey said that in most states, the standard of care is “not the very best of care, but … the ordinary care under the circumstances.”

“Until a lot of hospitals start doing these things, it would be difficult to get an expert to say this is what is ordinarily done,” she cautioned.

By Ray Huard

UNION-TRIBUNE STAFF WRITER

California

November 27, 2008

EAST COUNTY COURTS – An El Cajon woman who was permanently brain damaged as a result of the care she received at a county-owned nursing home has been awarded $1.6 million in a court settlement.

Ruth Lomeo, 44, is unable to care for herself and has limited ability to communicate with her 9-year-old son and her mother, William M. Berman, her lawyer, said in an interview yesterday.

“She can talk, although she communicates now like a 5-year-old,” Berman said. “She needs assistance with all the activities of daily living.”

In July 2005, Lomeo was given an overdose of a pain medication, and nurses at Edgemoor Geriatric Hospital in Santee waited 20 minutes to call 911 when Lomeo began to have trouble breathing, Berman said.

Lomeo sustained brain damage from a lack of oxygen.

Her lawyers initially sued the county for $2 million in damages. They accepted $1.6 million to provide for her continuing care in a settlement approved Friday by El Cajon Superior Court Judge Eddie C. Sturgeon, Berman said.

Senior Deputy County Counsel Dave Axtman said the county admitted no liability but “made a business decision” to the settle rather than risk a costlier jury verdict if the case went to trial.

“All of the underlying facts were disputed,” Axtman said in an e-mail.

He said any deficiencies at the nursing home have been corrected.

Lomeo was transferred to Edgemoor from UCSD Medical Center in April 2005, Berman said. Lomeo had been in the hospital since November 2004 for treatment of lupus, a chronic inflammatory disease that can affect various parts of the body, especially the skin, joints, blood, and kidneys, Berman said.

Lomeo no longer needed the intense care of a hospital but was sent to the nursing home for further treatment.

At the nursing home, Lomeo had been prescribed the pain killer fentanyl, to be administered in the form of two skin patches on alternating arms every 48 hours, Berman said. On July 25, 2005, those treating Lomeo left one patch on one arm and put two patches on the other, causing the overdose, Berman said.

When Lomeo had trouble breathing just before 10 p.m., the nurse at Edgemoor called her supervisor and a nursing home doctor to ask permission to call 911.

It wasn’t until 10:21 p.m. that the nurse called 911. Medics arrived at 10:27 and took Lomeo to Grossmont Hospital, Berman said.

“Unfortunately, the damage had been done,” Berman said.

Associated Press

By JIM SUHR – 6 days ago

EAST ST. LOUIS, Ill. (AP) — A widow whose husband died at a Veterans Affairs hospital under fire for substandard care has agreed to settle her lawsuit against the government for $975,000, her attorney said.

Katrina Shank had sought $12 million in her federal wrongful-death lawsuit. Her husband, 50-year-old Robert Shank III of Murray, Ky., bled to death in August 2007, a day after undergoing gallbladder surgery at the VA hospital in Marion, Ill.

Shank’s widow claimed the government failed to sufficiently check the background of her husband’s surgeon, Dr. Jose Veizaga-Mendez, before hiring him in January 2006.

Veizaga-Mendez resigned three days after Robert Shank’s death, and major surgeries were ordered halted there after inspectors attributed several patient deaths to questionable surgical care.

Terms involving Katrina Shank’s settlement were not disclosed in court documents, but one of her attorneys, Stan Heller, put the amount at $975,000. He said the sum amounts to an admission of responsibility, because “the government doesn’t toss money like that around easily.”

A VA spokesman, Paul Sherbo, said only that “the VA has no information to offer on this case, pending a review by the court.” According to the order by U.S. District Judge J. Phil Gilbert, the settlement becomes final after 90 days unless it hits a snag.

The VA found at least nine deaths between October 2006 and March 2007 were “directly attributable” to substandard care at the hospital. Those deaths did not include Robert Shank, who died months later.

The VA’s findings do not put the sole blame on Veizaga-Mendez, but Shank’s lawsuit said many or all of those who died were his patients.

At least one other lawsuit involving care by Veizaga-Mendez at the hospital is pending. James Marshall, 61, of Benton, Ky., died of a blood infection in July 2007, six days after Veizaga-Mendez performed a lymph node biopsy. His widow, Darla Marshall, is seeking $10 million in damages.

Veizaga-Mendez, who is not listed as a defendant in the lawsuits, has no listed telephone number and has not responded to repeated messages left by the AP at a Massachusetts home listed as an address for his wife.