Tennessee Law Blog

For years the medical and insurance lobby in Tennessee has been trying to place financial caps on medical malpractice cases. In attempting to sell this legislation the lobbyist argued that it would stop "frivolous" lawsuits. Our legislature, however, realised that a cap would do nothing to prevent frivolous cases. It would just give the medical community and insurance companies a privileged status in society to avoid responsibility for their actions. Large verdicts are not given for frivolous lawsuits. However, large verdicts only correspond with large damages and reckless conduct.

The Tennessee legislature now has passed legislation that will help prevent frivolous medical malpractice suits. At the same time it will not put artificial limits on valid medical malpractice suits. The bill requires attorneys to give all medical providers who may be named in a malpractice suit at least 60 days notice before filing a lawsuit, and to file a "certificate of good faith" that the claim has merit. The certificate is to be filed within 90 days after the lawsuit is filed. It is based on an evaluation by an independent medical expert. Judges could sanction plaintiffs and their attorneys who they feel have acted in bad faith.

As a lawyer that represents medical malpractice victims, I applaud this legislation. Any responsible lawyer will gladly comply with this new law.

Medtronic, a medical device manufacturer who has formerly warranted a dangerous device warning in the pages of this Tennessee Law Blog, has been issued a FDA Class I Recall for a series of its defective infusion pumps.

(For explanation of why defective infusion pumps are dangerous, check out Tennessee Law Blog’s defective device article on the dangerous Alaris Pump modules.)

A Class I Recall is the most severe action FDA officials take. Class I Recalls are reserved for drugs and dangerous medical devices for which there is a reasonable probability that use will cause serious injury or death.

Medtronic’s defective implantable infusion pumps have been subject to a series of sanctions. On August 3, 2007, Medtronic sent notification letters describing the problems of these defective devices manufactured before September 1999. In these Medtronic infusion pumps, a defective pump motor has been known to stall, which means the delivery of vital drugs will suddenly stop without notice. The lack of vital drugs can result in the return of a patient's symptoms, injury to the infusion pump’s user, and, reportedly, death in cases of drug withdrawal from Intrathecal Baclofen (ITB) therapy (injections into the spine).

The models of SynchroMed EL Implantable Infusion Pump Models subject to recall are as follows:

• Infusion Pump Model 8626-10
• Infusion Pump Model 8626L-10
• Infusion Pump Model 8626-18
• Infusion Pump Model 8626L-18
• Infusion Pump Model 8627-10
• Infusion Pump Model 8627L-10
• Infusion Pump Model 8627-18
Infusion Pump Model 8627L-18

Most patients who use the infusion pump are sufferers of cancer or of severe pain.

Consumers with questions may contact Medtronic Neuromodulation Patient Services at 1-800-510-6735.

Consumers in the State of Tennessee seeking compensation for the injuries caused by Medtronic’s defective devices can call my Nashville law offices at (615) 353-0930 or use HHP’s quick dangerous and recalled medical products form.

Cardinal Health, an $87 billion global manufacturer of medical equipment, announced today the voluntary recall of all Alaris Pump modules shipped prior to September 27th. These Alaris Pump modules (also known as the Medley Pump module) have dangerously defective spring mechanisms which can make these defective medical devices dangerous and deadly.

The purpose of infusion pumps is to introduce fluids (medication, saline, blood, etc.) into the body with regular, repeat precision. These machines can administer as little as 0.1 ml per hour, which is much smaller than a drip or injection by nursing staff can deliver--when these devices work.

The Alaris Pump module is used for all age groups, including infants, and for any number of fluid infusions. The danger of this medical device is in its defective occluder springs. Defects in the devices' occluder springs were caused by springs being misassembled (bent, broken, or missing); these little coils of metal regulates how much fluid is administered. Already two people have died allegedly from these defective medical devices.

These Alaris Pump modules were distributed to 46 states (including Tennessee), to Canada, and overseas. Overinfusion caused by defective springs may be difficult for medical personal to detect because these misassembled springs may operate with varying degrees of regularity. Serial numbers for defective devices can be found at Cardinal Health’s defective Alaris Pump recall page.

If you have suffered injury from an Alaris Pump or other defective medical device, contact the experienced Nashville, TN defective products lawyers at Higgins, Himmelberg & Piliponis by dialing (615) 353-0930 or fill out our defective medical device and recalls contact form.

With the Vanderbilt bacterial meningitis scare, debates about banning smoking in Nashville's parks, cancer studies linking Tennesseans' cigarette smoking to our rising number of cancer deaths, nationwide recall after Medtronic defibrillator deaths, and a marathon run through Tennessee to raise awareness about Ataxia-telangiectasia--this is already a hefty health news week in Nashville. I want to piggyback on that health news by updating this Nashville law blog's section on medical malpractice.

Medical malpractice, as it's commonly known, is when a doctor or other medical professional injures a patient, such as the Long Island woman who had a double mastectomy after a lab misdiagnosed her with a breast cancer she never had. What isn't so commonly known is that doctors and other health professionals are liable for injuries caused by those decisions they did not make as well as for decisions they waited too long to make. Figures vary, but some respectable studies attribute over 150,000 deaths a year to avoidable hospital errors. About half of these are patients who die as a result of hospital-acquired infections. Infections can lead to permanent disability if not death. Medical science has provided us a wealth of antibiotics and sterilization processes, which work great, if no one forgets or makes a mistake.

In addition to infections, another common injury seen in court but many medically injured patients overlook while suffering from its effects, is failed diagnosis. Though the attending doctor did not physically harm you, if he or she may have failed to diagnose a life-threatening disease or ailment that soon after causes you serious injury (such as an undiagnosed heart attack), then that doctor is responsible for malpractice damages. The same goes for being transferred without your assent, especially if transportation time furthered an injury or caused a new one in the process of getting you from Point A to B.

There are, of course, many other instances of medical malpractice ourattorneys see and try. As a fellow white-collar professional, what's perhaps the hardest to understand about the whole thing is how few doctors admit their mistakes. Tennessee Rules of Evidence exclude "expressions of sympathy" from the courtroom. In other words, a doctor's telling a patient or survivors that he or she is sorry and made a mistake is not admissible in court.The doctor's words of apology cannot be used against him or her in a court of law. Over 30 states other than Tennessee have passed these"apology laws," but few doctors will admit to error, often because of their medical malpractice carrier's pressure to reduce lawsuits, that is, payment for permanent or life-threatening or unnecessary injuries the insured doctor has caused.

Recently, my good friend F. Davis Morse at the Consumer Justice Group had an honor even greater than the day he passed the bar exam, his winning multimillion dollar settlements, or his Supreme Court victory: He became a father.

But what should have been the happiest day of his life was overshadowed by the hospital’s mechanized medical apparatuses in place for birthing mothers, a frightening array of unnecessary procedures and forced practices. Davis blogs about it at blogspot.com.
What’s particularly interesting for me is other people’s similar reactions whenever I talk about my or another lawyer’s blogs. They seem suspicious, like I’m having them on. Maybe it’s like how children imagine their elementary school teacher sleeps in the classroom: it’s hard for laypeople to imagine lawyers having a private life or being affected by the world outside the courtroom.

But at the day (and despite the jokes), lawyers are people, live in the same world and are subject to the same injustices and horrors as we write about here and fight against in trials.

For the past few years, the insurance industry has claimed that there is a medical malpractice litigation crisis in Tennessee. However, after reviewing the statistics on medical malpractice lawsuits, it appears the “crisis” is a myth. According to a recent article in the Tennessean, most medical malpractice claims closed in Tennessee last year resulted in no payment of damages to patients and their families.

The answer most advocates advance to fix the alleged “crisis” is to put caps on medical awards. When you review the statistics, however, it appears that caps would do almost nothing to affect the total costs of the system. Of the 2,827 claims that closed in 2005, 461 of them were settled without jury verdicts. Slightly more than 83 percent of the closed claims resulted in no payout. Of the jury verdict awards closed in 2005, five resulted in jury verdicts for the plaintiffs, with the judgments totaling a little more than $6 million.

Perhaps the industry should look more at the insurance industry to determine why the premiums are so high. Is the system out of control or working just fine? I realize the justice system is far from perfect, but it seems to be working in Tennessee. Claims that have no merit are dismissed. Claims that have merit are presented to a jury for a determination on an appropriate outcome.

Joseph Palanki was eleven months old when he underwent surgery to reduce scrotal swelling. Along with taking away the inflammation, the Vanderbilt University Medical Center surgeon removed 90% of the infant’s bladder. Joseph Palanki has undergone several treatments since and still cannot urinate without a catheter. Unwilling to go unremunerated for the malpractice, Joseph’s West Tennessee family sued the hospital and was awarded $16 million by a jury after a trial in May, 2005. Soon after the trial, however, Walter Kurtz, a Davidson County Circuit Court Judge, reduced the verdict to $6.5 million. The Palankis appealed, but on Monday the Court of Appeals upheld Judge Kurtz’s decision.

No amount of money could have adequately compensated that little boy for the life he will lead with only 10% of his bladder, but the original jury-awarded sum could have more easily defrayed the costs his surgeon’s mistake will incur throughout his lifetime. While it is unfortunate that the lesser award was upheld by the court, cases like this send a strong message to our health care providers that our lives, and thus doctors’ diligence, have great worth. It is up to all of us to reinforce that message by taking action any time we or someone we know has been treated carelessly by a physician.

One example of birth injuries caused by trauma to the newborn is Erb's palsy (sometimes called Brachial Plexus palsy). In essence The brachial plexus is a nerve bundle located in the shoulder region that controls muscles in the shoulder, arms and hands. Sometimes during delivery a child’s should can become lodged on the mother’s pubic bone. If a physician uses to much force on a child’ head during the deliver process in an effort to dislodge a shoulder damage can occur to the nerve bundles located in this shoulder region.

A child that is born with brachial plexus palsies such as Erb's palsy can suffer paralysis and a loss of sensation and muscle control in their shoulders, arm and hands. They may also suffer from disfigurement of the shoulder or arms. This often results in the child being unable to lift their arms above their head and not being able to have appropriate strength and fine motor coordination. Treatment options include extensive physical therapy and surgery.

Obviously, the primary concern of the parents is to care for the child and not the possibility of pursuing a claim. However, the long term costs of caring for the child can be extraordinary. Admittedly, the delivery of a child is a complicated process, and the potential for complications is always present. However, some complications like birth injuries can be presented, and it is the responsibility of the treating medical care providers to provide adequate medical care for the fetus and mother during pregnancy, labor and the delivery. Unfortunately, parents often do not discover that a cause of the problem can be medical malpractice for a significant period of time. In Tennessee the family now has only three years to bring a claim. This may sound like a long time but when the sole concern is your child the three years passes very quickly.