Articles Posted in Medical Malpractice

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Mimms, an Indiana-licensed physician, prescribes controlled substances to patients. Several times, CVS Pharmacy employees informed Mimms’s patients that they would not fill their prescriptions. Mimms sued, alleging defamation. CVS argued that Mimms had no evidence that the speakers knew their statements were false. The court granted summary judgment as to five statements and denied judgment for four statements, reasoning there was a material question of fact regarding whether the speakers knew that their statements were false, given evidence that CVS’s corporate office had investigated Mimms and had not stopped stores from filling his prescriptions. The court rejected CVS’s argument that knowledge held by the corporate office could not be imputed to the speakers. The statements were: “CVS doesn’t fill Dr. Mimms’[s] prescriptions or prescriptions for any other pill mills.” “Mimms went to jail.” “Mimms has been … or will be arrested.” “Mimms is under DEA investigation. A jury found CVS liable for defamation per se and awarded Mimms $1,025,000. The Seventh Circuit reversed. Mimms proffered no evidence that the first three statements were made with actual malice. CVS is entitled to a new trial on the fourth statement; the court should have allowed CVS to present evidence that Mimms was the subject of a DEA investigation and regarding Mimms’s reputation. In a defamation per se case, damage to reputation is presumed but evidence regarding the extent of the harm to his professional reputation was critical for minimizing damages. View "Mimms v. CVS Pharmacy, Inc." on Justia Law

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Joas underwent knee replacement at a Wisconsin hospital and received a Zimmer NexGen Flex implant. Within a few years, he began experiencing pain in his new knee. X-rays confirmed that the implant had loosened and required a surgical fix. Joas brought multiple claims against Zimmer. His case was transferred to a multidistrict litigation, where it was treated as a bellwether case. Applying Wisconsin law, the presiding judge granted Zimmer summary judgment. The Seventh Circuit affirmed, declining to reinstate a single claim based on a theory of inadequate warning. The court predicted that the Wisconsin Supreme Court would follow the majority of states and adopt the “learned intermediary” doctrine, which holds that the manufacturer of a medical device has no duty to warn the patient as long as it provides adequate warnings to the physician. In addition, Joas has not identified any danger that Zimmer should have warned him about. Joas has no evidence to support causation. Joas did not select the NexGen Flex implant, so the information would not have caused him to change his behavior. His doctor selected the product, making his decision based on his own past experience, not on any marketing materials or information provided by Zimmer. View "Joas v. Zimmer, Inc." on Justia Law

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White, pregnant with her tenth child, was charged with federal bank fraud. She failed to appear and was taken into custody when she was 35 weeks pregnant. The U.S. Marshals arranged for her housing at JCDC, which had a full-time medical staff and a relationship with an obstetrics practice. White’s intake form indicated an October 18 due date. Her blood pressure was high. No medical history was taken. White did not disclose that with her ninth pregnancy, she had an emergency cesarean section at 34 weeks. White signed a release but JCDC did not obtain her prenatal care records. For 10 days, White had multiple contacts with medical staff. She told a nurse that she was not having any problems. White then refused to be seen and signed a refusal form. Days later, White awoke with pain and called for assistance at 5:10. An ambulance arrived at 5:22. White arrived at the hospital at 5:52. White again denied having any complications or chronic medical problems. At 6:07, the nurse was unable to find fetal heart tones. At 6:13, the doctor ordered an emergency cesarean section. J.L. was delivered at 6:33. White had suffered a complete abruption of the placenta which stopped the flow of oxygen to J.L., who has severe, permanent disabilities. The abruption likely occurred in the ambulance or at the hospital, because J.L. would not have survived had it occurred earlier. Her father sued under the Federal Tort Claims Act (FTCA), 28 U.S.C. 2671, alleging medical malpractice. The Seventh Circuit affirmed summary judgment for the defendants. Placement and retention of White at JCDC fell within the discretionary function exception to the FTCA’s waiver of sovereign immunity. There was no indication that White needed immediate care before the morning of J.L.’s birth, when staff promptly called for help. View "Lipsey v. United States" on Justia Law

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Carle’s medical residency program, which has an employment component, was governed by annual contracts. Residents were required to complete rotations before advancing and to pass the Step 3 U.S. Medical Licensing Examination before entering the third year. A third Step 3 failure results in termination. Carle residents cannot graduate unless they complete licensing requirements. Illinois medical students with five failures in the Step tests are not eligible for licensure without significant remediation. Rodrigo failed his first attempts at Step 1 and Step 2. He was required to repeat four rotations. His supervisors thought a neuropsychological examination might identify issues affecting his performance. Rodrigo never underwent recommended testing. Carle extended Rodrigo’s first and second years to allow him to repeat rotations and the Step 3 test, which he failed a second time. Rodrigo then informed Carle that he had a sleep disorder. Although Rodrigo did not request an accommodation, the director suggested that he take time off. Rodrigo did so, but failed a third time. Rodrigo asked to be promoted so that he could attempt to pass Step 3 in California. After termination of his residency, Rodrigo sued under the Americans With Disabilities Act. 42 U.S.C. 1210. The Seventh Circuit affirmed summary judgment in favor of Carle, finding that Rodrigo was not a “qualified individual.” Passing Step 3 is an “essential function.” Rodrigo presented no evidence of a causal connection between his protected activity (seeking an accommodation) and his termination. View "Rodrigo v. Carle Foundation Hospital" on Justia Law

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Madden, suffering from morbid obesity, respiratory acidosis, congestive heart failure, chronic obstructive pulmonary disease, obstructive sleep apnea, obesity hypoventilation syndrome, hypertension, and hyperlipidemia, was admitted to the V.A. Hospital several times before his last admission on December 28, 2007. The Hospital placed Madden in respiratory isolation. On the same day, Madden’s wife described him as “not being himself,” and unsuccessfully requested the presence of a staff member in the room with Madden at all times. The Hospital allowed Madden to sit in a wheelchair because of his difficulty with lying in bed. Madden consistently reported that he was feeling fine, with a few comments about shortness of breath. On January 1, 2008, Madden was found unresponsive in his wheelchair. It took the Hospital 25 minutes to resuscitate him; Madden had suffered a cardiopulmonary arrest. On January 25, Madden was transferred to a long‐term care facility. He never regained consciousness and died on January 8, 2010. Madden’s estate filed a wrongful death suit under the Federal Tort Claims Act. The Seventh Circuit affirmed in favor of the government, agreeing that the government’s expert’s opinions were supported by medical records, relevant literature, data, studies, and medical explanations; while the government successfully impeached the family’s expert, a family friend, for lack of consultation of relevant medical literature and even Madden’s medical records. View "Madden v. United States Department of Veterans Affairs" on Justia Law

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Proctor, an Illinois prisoner who was confined for seven years at Hill Correctional Center, suffers from chronic abdominal pain and spasms in his colon. He sued medical providers working at Hill for Wexford Health Sources, the contractor providing healthcare to Illinois prisoners, and corrections officials, claiming that they violated the Eighth Amendment by not ordering a colonoscopy and endoscopy to diagnose his persistent abdominal pain. The district court granted summary judgment for the defendants. The Seventh Circuit affirmed. A jury could not reasonably find that the defendants were deliberately indifferent to Proctor’s medical condition. Proctor’s abdominal pain and colon spasms were investigated thoroughly, and that investigation substantiated only a diagnosis of IBS. Over the course of treating him, the medical professionals routinely performed physical exams and ordered X‐rays, an ultrasound, bloodwork, stool cultures, and other tests, but the results were consistently normal. The decision whether further diagnostic testing— like a colonoscopy—was necessary is “a classic example of a matter for medical judgment. View "Proctor v. Sood" on Justia Law

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Moshiri, other physicians, and hospital administrators were charged (42 U.S.C. 1320a-7b(b)) based on a kickback scheme. The former director of the podiatry residency program (Noorlag) testified that teaching contracts were a vehicle to pay physicians for referrals. Moshiri received $2,000 per month and was named as the Director of External Podiatric Office Rotations. Another doctor was named to that position at the same time. According to Noorlag, neither doctor was considered to hold that position, and neither performed the related duties. The Chair of the Counsel on Podiatric Medical Education, which oversees and certifies residency programs nationally and publishes standards, offered an expert opinion that teaching stipends are uncommon for attending physicians at residency programs and that he had never heard of such a physician being paid $2,000 per month. According to multiple witnesses, Moshiri did not conduct workshops and did not manage external rotations. Moshiri worked with residents about three times per month, while 11 other program physicians averaged 10 cases per month with residents. During the period at issue, the Hospital billed Medicare and Medicaid $482,000 for patients Moshiri treated. The Hospital’s Chief Operating Officer had recorded conversations in which Moshiri discussed his referrals. The agent who arrested Moshiri testified that Moshiri said that “the contract turned into basically paying for patients.” The Seventh Circuit upheld Moshiri’s conviction, rejecting challenges to the sufficiency of the evidence and to the expert testimony. View "United States v. Moshiri" on Justia Law

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Substantial evidence supported finding that hospital’s contracts with physicians violated Anti-Kickback statute. Novak and Nagelvoort participated in a scheme under which Sacred Heart Hospital paid illegal kickbacks to physicians in exchange for patient referrals. Novak was the Hospital’s owner, President, and Chief Executive Officer. Nagelvoort was an outside consultant, and, at various times. served as the Hospital’s Vice President of Administration and Chief Operating Officer. Federal agents secured the cooperation of physicians and other Hospital employees, some of whom recorded conversations. Agents executed warrants and searched the Hospital and its administrative and storage facilities. The prosecution focused on direct personal services contracts, teaching contracts, lease agreements for the use of office space, and agreements to provide physicians with the services of other medical professionals. The Seventh Circuit affirmed their convictions under 42 U.S.C. 1320a-7b(b)(2)(A) and 18 U.S.C. 371, rejecting arguments that there was insufficient evidence to prove that they acted with the requisite knowledge and willfulness under the statute; that the government failed to prove that certain agreements fell outside the statute’s safe harbor provisions; and that Nagelvoort withdrew from the conspiracy when he resigned his position, so that any subsequent coconspirator statements were not admissible against him. View "United States v. Naglevoort" on Justia Law

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Inmate’s allegation that prison dentist intentionally sutured inmate’s gum without removing pieces of broken drill bit was sufficient to withstand screening. While Dr. Craig was extracting a wisdom tooth from Echols, an Illinois inmate, a drill bit broke. Craig sutured Echols’ gum with gauze and at least one half‐inch long piece of the broken bit still inside, where it caused pain for about two weeks before it was finally removed. Echols alleges that Craig sutured the site after intentionally packing it with non‐soluble gauze and without first locating the missing shards from the broken drill bit. The district court screened Echols’ 42 U.S.C. 1983 complaint under 28 U.S.C. 1915A, and dismissed it, stating that Echols’ allegations were factually frivolous. The Seventh Circuit vacated, holding that Echols’ allegations are quite plausible and state a claim for violation of the Eighth Amendment. Echols sufficiently alleged that Craig’s actions were so inappropriate that the lawsuit cannot be dismissed at screening. View "Echols v. Craig" on Justia Law

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The Seventh Circuit reversed summary judgment for the defendants in a suit by Johnson, an inmate of the Rushville Treatment and Detention Facility for persons believed prone to sexual violence, claiming that staff had caused Johnson to take the antipsychotic drug Risperdal, for more than a month, without Johnson’s knowledge or consent. The staff did not follow Illinois’s procedures for ordering forced medication; Johnson had not been found to be dangerous to himself or others. The doctor prescribed Risperdal after Johnson complained about feelings of aggression and hopelessness, even though Johnson refused to consent. The doctor stated that he wrote the prescription so that Johnson could take the medication if he wanted it. The nurse, not knowing what the pill was, included the Risperdal with Johnson’s medications for blood pressure, cholesterol, and stomach problems, so Johnson took the drug without noticing it. The Seventh Circuit noted that the Supreme Court has recognized a “significant liberty interest,” under the due process clause in “avoiding the unwanted administration of antipsychotic drugs,” which can have “serious, even fatal, side effects.” While Johnson was not forced to take the pill, the doctor “must have known that pills were delivered to the inmates, unlabeled, in little cups.” View "Johnson v. Tinwalla" on Justia Law