Las Vegas Injury & Accident Attorney Blog

If you have suffered a heart attack or stroke and have taken Avandia for Diabetes, then Call the law firm of Benson & Bingham today.  702-382-9797.  Rosiglitazone is used along with a diet and exercise program and sometimes with one or more other medications to treat type 2 diabetes (condition in which the body does not use insulin normally and, therefore, cannot control the amount of sugar in the blood).  Rosiglitazone is in a class of medications called thiazolidinediones. It works by increasing the body’s sensitivity to insulin, a natural substance that helps control blood sugar levels. Rosiglitazone is not used to treat type 1 diabetes (condition in which the body does not produce insulin and, therefore, cannot control the amount of sugar in the blood) or diabetic ketoacidosis (a serious condition that may occur if high blood sugar is not treated).  Rosiglitazone comes as a tablet to take by mouth. It is usually taken once or twice daily with or without meals. Rosiglitazone should be consumed at about the same time(s) every day.  Your doctor may have increased your dose of rosiglitazone after 8-12 weeks, based on your body’s response to the medication.  Rosiglitazone claims to help control type 2 diabetes but does not cure it.  Usually it takes 2 weeks for your blood sugar to decrease, and 2-3 months or longer for you to feel the full benefit of rosiglitazone.  If you need an Avandia Lawyer call the experts at Benson & Bingham today.

U.S. News and World Report Claims there is no real problem with Avandia.  “Our observational study does not suggest a significant cardiovascular hazard and may suggest a beneficial effect on ischemic cardiovascular events associated with treatment with rosiglitazone among patients with type 2 diabetes and established coronary artery disease,” said Dr. Richard Bach, an associate professor of medicine at Washington University School of Medicine in St. Louis.

The FDA is on record that the drug is NOT SAFE.  It is a matter of time before the drug is pulled off the shelf. FDA previously communicated to the public about the possible association between rosiglitazone and increased cardiovascular risk in a 2007 safety alert. The agency also sought advice from external experts at the July 30^th 2007 joint meeting of the FDA Endocrinologic and Metabolic Drugs and Drug Safety and Risk Management Advisory Committees. The RECORD study data represent the only new information from a completed randomized, controlled clinical trial of rosiglitazone received by FDA since the 2007 announcements. The RECORD study was designed to evaluate the cardiovascular safety of rosiglitazone, which is consistent with FDA’s December 2008 Guidance for Industry recommending that manufacturers of new treatments for diabetes carefully design their clinical trials to include an evaluation of cardiovascular safety. The RECORD study will be evaluated in the context of this recent Guidance.

* Rosiglitazone is sold as a single-ingredient product under the brand name Avandia. It is also available in combination with other diabetes medications, metformin under the brand name Avandamet or glimepiride under the brand name Avandaryl.

FDA recommends that patients currently using rosiglitazone:  Not stop taking their medication without talking with their healthcare professional. Discuss any questions or concerns they have about rosiglitazone with their healthcare professional. Read the Medication Guide that comes with each rosiglitazone prescription to better understand the risks and benefits of their medication. Report any side effects with rosiglitazone to FDA’s MedWatch program.

Similar to Vioxx, drugs that cause an increase in heart attacks will have serious legal contention if the Plaintiff has other risk factors like obesity, hypertension, high cholesterol, or other issues that may alone cause a heart attack.   Those who have diabetes and smoke will also have trouble fighting the makers of Avandia.   The biggest risk factor will likely be obesity.  Given that fatter humans are likely to have diabetes and therefore develop Type II diabetes, it will be hard to conclusively understand whether the heart issues are from the underlying weight issue or the drug.   Studies will continue to give us valuable research to help juries understand the true risks of this drug.  To help you fight for your rights, Call the Avandia and other dangerous drug recall attorneys at Benson & Bingham today who are taking new cases today.  Don’t delay!  702-382-9797

Recently, A Nevada Jury awarded $500 Million in punitive damages to a couple infected with Hepatitis from an Endoscopy center.  It is well known the facility and its doctors, primarily Dr. Desai, reused Propofol vials (an anesthestic) on patients mixing the syringes and needles between patients cross contaminating.  It is well known the Doctors did not have the money to compensate the victims who have genetically linked their disease to the outbreak at the facility.   The jury awarded $5.1 Million in compensatory and then awarded the 1/2 billion dollar sum to punish the maker of the drug.  The convincing argument was the 50ml vials should not have been sold to centers that had minimal use for such large doses of medication.

This lawsuit was based on the Strict Products Liability Cause of Action that is a very strong action, if the Plaintiff’s can prove the product failed in its warnings, was defectively designed, or was mis-manufactured in some fashion.  The key here was the defectively designed containers that “encouraged” multi uses for business/profit reasons–allegedly.  The vials do have qualified uses in drip systems and other longer sleep patient procedures.  So, in essence, the company was punished by the jury (in this case Teva and Baxter Pharmaceuticals) for this “encouragement” in that they knew doctors may be reusing the vials and they helped in some fashion by making such a “large” dosage.  Whether or not personal injury lawyers are correct in their allegations, the jury believed the arguments and found not only that these companies were liable, but that they should be punished for their bad behavior.  Given that the combined annual revenue of these companies exceeds $13 billion, even the $500,000,000 is a slap on the wrist–but it would get any accountant’s attention.   So, one must contemplate whether the underlying case was justified.    To understand how a jury gets to this, one must understand that Negligence is not a bar to strict products liability.

The law is founded on the assumption that manufacturers need to make safe products–very safe products, or face severe ramifications for bad design, bad warnings, or bad product.  If a product is misused this is a defense to products liability.  And, arguably the doctors misused the “single” dose vials.  The jury did not believe this argument because they were not allowed to hear it!    The jury was barred from hearing testimony that doctors misused the vials given that this “negligence” was not a factor in the products liability action.  While this author did not sit through the trial and hear all the relevant testimony, the point is clear that the case was tried as a products case, and the jury found that the manufacturer was liable for creating an unreasonably dangerous product.     The absurd response comes from those who compare this scenario to that of a car driver who car drives 100 mph but yet the roads only allow for 55mph.  Should we sue the car manufacturer for the drivers error when he crashes doing 100mph?  Another comparison is one to cough syrup.  It comes in 10 oz bottles.  The consumer is “warned” to only take 2 tablespoons (one ounce).  If a consumer drinks the whole bottle, should we then sue Robitussan or Vick’s Cough syrup because the consumer did not follow the instructions?  Well, the crazier thing here, is not only was warning not obeyed, it was a doctor who did not obey it…

Many states, such as Nevada, have imposed egregiously unfair limits on pain and suffering damages in Medical malpractice cases.  These cases often have horrible damages leaving the victims unfairly compensated for bad medicine.  Nevada currently has a cap of $350,000 for pain and suffering.   Two states in 2010 have now repealed their respective States’ laws on caps.  The first this year was Illinois and now Georgia (who has a cap similar to Nevada $350,000.)

These States’ Supreme Courts banned such limitation based on the Separation of Powers Doctrine Embodied in the US Constitution.  The crux of the argument is that the legislature can’t impose rules on those duties fundamentally outlined for the judiciary—here reducing verdicts.   The principle behind the Courts’ rulings is likely to be challenged.   Can a legislature make laws that affect the judiciary?  It really depends on your legal philosophy.  In some respects, it seems like a conflict of interest to have a Court decide whether they have the power over the legislature to interpret a law—in other respects, it does make sense that our Separation of Powers doctrine was implemented to serve the very issue of fairness over the legislature.  With the new health insurance reform, time will tell how this may impact our Medical mal-practice laws.  What do you think?

Nevada’s strict rule requiring an affidavit for medical mal-practice complaints is now even stricter.  The NV Supreme court declared that expert affidavits for the mal-practice of doctors now also applies to those corporations (e.g Hospitals and their nurses) for their respective negligent conduct.   The rule simply adds harshness to the already cut-throat rule that an affidavit must be supplied to any complaint or it is automatically dismissed.  Thus, if your assistant fails to apply a staple–the case is over.  Very ridiculous, but this is medical tort reform just as the doctors wanted it.  Way to go Nevada legislature!

Fierle v. Perez, 125 Nev. Adv. Op. No. 36 (Nov 19, 2009)1 MEDICAL MALPRACTICE, PROFESSIONAL NEGLIGENCE AND NRS 41A.071’S

EXPERT AFFIDAVIT REQUIREMENT

Summary

An appeal from the First Judicial District Court’s dismissal of medical malpractice and professional negligence claims against a physician, his professional medical corporation and several staff members for failure to attach an expert affidavit to their initial complaint.

Disposition/Outcome

District court’s judgment affirmed with regards to claims that required an affidavit, reversed and remanded with regards to claim that qualified under res ipsa loquitor exceptions.

Facts and Procedural History

Patricia Fierle (“Fierle”) was diagnosed in July 2005 with breast cancer and subsequently underwent a mastectomy. To facilitate ongoing chemotherapy, a catheter was inserted into her chest, the tip of which was meant to terminate in her subclavian vein. Chemotherapy drugs were to be injected into the vein through this catheter.

After the surgery, Fierle became a patient of Dr. Perez and his staff, including Melissa Mitchell (“Mitchell”), a registered nurse, and nurse practitioners Charmaine Cruet and Linda Lesperance. On Fierle’s third visit to Dr. Perez’ office, Mitchell administered chemotherapy. However, rather than in fusing in to the catheter, the medication infused into her tissue. This caused a subcutaneous burn known as an “extravasation.” According to Fierle, her complaints of discomfort at the time were not met with any treatment or attention.

The next day, after one of Dr. Perez’ nurses noticed redness and swelling on Fierle’s chest, she was referred to a radiologist. His tests revealed that the tip of the catheter was not in the vein, but coiled in her tissue. She then sought treatment from another doctor who referred her to Dr. Miercort. His opinion was that “negligent extravasation” had occurred and he referred her to U.C. Davis Medical Center. There, she was diagnosed with “severe extravasation of chemotherapy over the right shoulder and subclavian region.”

Mr. and Mrs. Fierle filed a complaint in district court on September 14, 2006. They claimed Mitchell was negligent in her administration of chemotherapy, Dr. Perez, Cruet and Lesperance were negligent in their training of Mitchell, loss of consortium and “Willful Failure to Provide Treatment and Constructive Fraud” against Dr. Perez and his professional medical corporation Jorge Perez M.D., Ltd. They later amended their complaint to include an affidavit from Dr. Miercort.

Dr. Perez, Jorge Perez M.D., Ltd., and Mitchell moved for dismissal of the Fierles’ complaint, citing failure to include an expert affidavit with the original complaint as required by

1 By Mark HesiakNRS 41A.071.2 They also moved to strike the amended complaint, relying on Nevada precedent that said a complaint filed under NRS 41A.071 without the expert affidavit is void ab initio and shall be dismissed.3 These motions were joined by Cruet and Lesperance. The district court granted both motions, finding that the complaints did not qualify for NRS 41A.100(1)(c)’s res ipsa loquitor exception. The Fierles’ motions under NRCP 52(b), 59(e) and 60(b) were also later denied. This appeal followed.

Discussion

Standard of Review

The district court’s dismissal was based on its interpretation of statutes. The Nevada Supreme Court reviews a district court’s statutory interpretation de novo.4

NRS 41A.071 applies to professional medical corporations

Under NRS 41A.071, an action for medical or dental malpractice must be accompanied by an affidavit from a medical expert who practices a type of medicine similar to that which forms the basis of the malpractice claim.5 NRS 41A.009 contains the following definition for medical malpractice: “the failure of a physician, hospital or employee of a hospital, in rendering services, to use reasonable care, skill or knowledge ordinarily used under similar circumstances.”6 The appellants argued that no affidavit is required under these statutes in a suit against a professional medical corporation.

While the definition of medical malpractice does not explicitly include professional medical corporations, the Court held that NRS 41A.071 requires expert affidavits be attached to any non res ipsa loquitor malpractice claim against such a corporation. “Professional Corporation” is defined in NRS Chapter 89, and under NRS 89.060 and 89.220, no statute can alter the personal liability of a physician in a medical malpractice claim.7 Harmonizing Chapters 41A and 89, the Court determined that the affidavit requirement applies to claims against professional medical corporations as well as physicians.

NRS 41A.071 applies to professional negligence claims

The Fierles’ also argued that the definition of medical malpractice only covers claims against Dr. Perez’. Therefore, the claims against the other respondents would be for professional negligence and would not require an affidavit as 41A.071 only addresses malpractice claims. The Court looked to resolve the ambiguity by looking to the intent of the initiatives passed in 2004 as NRS 41A.015 and 41A.017, which provided protections for professional negligence for providers of health care.

2 NEV. REV. STAT § 41A.017 (2007). 3 Washoe Med. Ctr. v. Dist. Court, 122 Nev. 1298, 1300, 148 P.3d 790, 792 (2006). 4 Beazer Homes Nevada, Inc. v. Dist. Court, 120 Nev.575, 579, 97 P.3d 1132, 1135 (2004); Keife v. Logan, 119 Nev. 372, 374, 75 P.3d 357, 359 (2003). 5 NEV. REV. STAT § 41A.017 (2007). 6 Id. § 41A.009 (2007). 7 Id. §§ 89.060, 89.220 (2007).

First, the Court noted that the definition of professional negligence in the statute is basically the same as medical malpractice. The intent of the statute was to give other providers of health care the same protection doctors received from the legislature in 2002.8 The Court also reasoned that a malpractice claim against a doctor is the same as a professional negligence claim. To make one of these claims subject to the affidavit requirement and not the other would defeat the intent of the legislature and the citizens of Nevada. It would provide a way around the requirement by calling a claim professional negligence instead of malpractice. Therefore, NRS 41A.071’s affidavit requirement extends to non-res ipsa loquitor professional negligence claims against providers of health care, whether doctors, nurses or nurse practicioners.

Claims based on res ipsa loquitor are not subject to the affidavit requirement

NRS 41A.100 provides res ipsa loquitor exceptions to the affidavit requirement in malpractice or professional negligence claims.9 The Court found its recent decision in Szydel v. Markman conclusive on the issue at hand.10 In Szydel, the court concluded that that the expert affidavit requirement does not apply when the malpractice action is based solely on the res ipsa loquitor doctrine.11 The Syzdel court further concluded that when a plaintiff files a res ipsa loquitor claim in conjunction with other medical malpractice claims that are not based upon the res ipsa loquitor doctrine, those other claims are still subject to the expert affidavit requirements of NRS 41A.071.12

Here, the negligent extravasation claim would fall under one of the listed exceptions. If a “provider of health care” causes a patient to suffer “an unintended burn caused by heat, radiation or chemicals… in the course of medical care,” or any of the other exceptions listed in the statute, no expert testimony or affidavit is required to establish negligence.13 Therefore, the Court allowed the claim against Mitchell to continue as she administered the medication.

A claim amended to include an affidavit will not relate back to the initial filing even if some of the claims do not require the affidavit

The appellants next argued that because some of their initial complaint did not require an affidavit, the amended filing could relate back and cure the initial deficiency. Here, the court followed precedent and determined that all claims under NRS 41A.071 that do not include an affidavit are void ab initio, and must be dismissed.14 The Court applied this rule even to situations where some claims survive because of lack of an affidavit requirement.

Conclusion

The Court concluded that, because under NRS Chapter 89, the establishment of a professional entity cannot alter the personal liability of a participant, NRS 41A.071’s affidavit

8 See 2004 General Election Sample Ballot, p. 12. 9 NEV. REV. STAT § 41A.100(1)(c) (2007). 10 Szydel v. Markman, 121 Nev. 453, 117 P.3d 200 (2005). 11 Id. at 454, 117 P.3d at 201. 12 Id. at 460, 117 P.3d at 205. 13 NEV. REV. STAT § 41A.100(1)(c) (2007); see also Szydel, 121 Nev. at 454, 117 P.3d at 201. 14 Washoe Med. Ctr., 122 Nev. at 1300, 148 P.3d at 792.

requirement applies to claims against professional medical corporations as well as individuals. The Court further concluded that the requirement extends to professional negligence claims against all providers of health care, nurse practitioners, nurses and doctors alike. However, the Court concluded that any claim that falls under the res ipsa loquitor exceptions listed in NRS 41A.100 may be filed without an affidavit as no expert testimony is needed to establish negligence. Finally, the Court concluded that a complaint filed containing some claims subject to the affidavit requirement and some that do not fall under 41A.071 cannot be cured by filing an amended complaint that includes the affidavits. Thus, all claims subject to NRS 41A.071 that are filed without the affidavits are void ab initio and must be dismissed. In accordance with these conclusions, the Court reversed in part and affirmed in part the district court’s order and remanded the case for further proceedings consistent with the opinion.

Concurrence in Part, Dissent in Part (Pickering, J.)

Justice Pickering agreed with the result the majority reached, but not with its reasoning. While medical malpractice is encompassed in the term “professional negligence,” the opposite is not true. As the amendments in 2004 did not change the words “medical malpractice” in 41A.071 to “professional negligence,” the requirement should not be extended to claims of professional negligence. However, in this case, Justice Pickering found the injection to be a part of the rendering of medical services by a physician as defined in the malpractice statute, regardless of the fact that it was a nurse who physically gave the drugs. Therefore, this action would be one for medical malpractice and require an affidavit.

Justice Pickering also believes that both the nurse and the physician with the duty to supervise are subject to the res ipsa loquitor exception. The injection was given by the nurse under the doctor’s supervision, and therefore the remand should be for Dr. Perez and Mitchell for the negligent extravasation.

The John Ensign Amendment Fails!  Sunday, December 06, 2009  The Ensign Amendment, which would have capped attorneys’ fees in medical malpractice cases, failed by a vote of 66-32.   It is hard to believe that a person representing Nevada would be so quick to jump on the bandwagon in favor of high priced medicine instead of helping innocent and helpless medical malpractice victims.  Some people might think (at first glance) this amendment would help give more to the victims as the fees are capped.  What people don’t understand is that essentially this would have been not only hard, but nearly impossible to find an attorney willing to take on such cases.

Why would an attorney want to risk a huge investment just in litigation costs for a meager award of attorney fees–they won’t.   If you are an injured medical malpractice victim, go try and find an attorney now in Nevada–we currently have caps of 15% attorney fees over $500,000 and the victim is capped at $350,000 for non-economic damages;  plain and simple, this is already a problem… just imagine what Ensign’s bill would have done.

In 2003, the Nevada Legislature created political campaign entitled, “Keep our doctors in Nevada.”  The argument was that due to medical malpractice insurance premium increases local doctors could no longer practice affordable medicine due to the escalating costs.   The Victim’s rights groups and Personal injury attorneys banned together to unsuccessfully fight this tort reform legislation.  In essence the laws were reformed to:

1.) Limit the amount of pain and suffering a victim could collect to $350,000; therefore a person who dies or is paralyzed gets only $350,000!

2.) Limit the attorney fees to discourage attorneys from taking good cases from 40-50% to 15% on amounts over $600,000.

3.) Reducing the time Victims have to sue from 2 years to 1 year; aka, the statute of limitations.

4.) Medical expenses and Wage losses (economic damages) are not part of the pain and suffering cap and are unlimited, but truly these costs are just reimbursement of costs and wages the client/victim would have made or need to make.

What these rules have done is effectively stopped good lawyers from taking good cases.  Unless a person understands why, they may disagree with this author.  We need to fight for just and fairer laws.  A laymen’s perspective may ask, “attorney fees seem like a lot for $15% over $600,000?”  Not true.  When personal injury lawyers decide whether they want to take a case they ask themselves:  Does the case have merit?  Is the case Just? Can we prove it?  Is the case worth it from a business standpoint? The official rule for attorney fees is: Forty percent of the first $50,000 awarded; 33 and one-third percent of the next $50,000; 25 percent of the next $500,000 awarded; and a cap of 15 percent for awards of $600,000 or more.

The first question is usually easy:  we simply ask another medical expert their opinion on the facts of the case and whether the doctor deviated from the standard of care.  Often, this is even easier if the facts indicate an obvious error. The next question is whether the case is Just?  This is simply a balancing test on whether the victim was so injured as to justify the need of litigation over the need to sue a caregiver.  Some cases are so minor that they don’t warrant a lawsuit.  The third question is a matter of proof.  Cancer victims often cry fowl that the doctor misdiagnosed the disease leading to a death.  These can be tough to prove:  would you have survived if they had diagnosed properly? –Tough question that borders on speculation, which is a fundamental basis, the law does not allow.  Can you prove that the doctor accidentally cut your bowels during the stomach operation leading to your infection, or was that an appendicitis issue?

THE BUSINESS DECISION:  RISK VS. REWARD

Also, a legal practitioner will always ask, “Does this case make economic sense?”  Most people don’t understand the personal injury lawyers take the case and front all the expenses necessary to perform a jury trial.  This is very, very expensive.  Each doctor that testifies, as an expert must be paid.  The victim usually can’t afford this, so the attorney’s front these costs.  Why would an attorney represent a victim that has suffered immensely, but the case is too expensive and the risk of losing is great.  They won’t.  Remember that law firms are businesses that employ many persons.  A firm can’t take too many losses or they wont operate; hence the art of case selection.  These laws create public policy; in essence, reducing the number of attorneys taking cases, which in turn, means they only take the most horrific, easy to prove, profitable cases.  The rest of the maimed public is stuck.

THE ULTIMATE RECOVERY

I don’t think anyone besides doctors will argue that $350,000 cap is fair.  There are just too many horrific injuries that justify more compensation.  This is just an idiotic law.  Forget attorneys, forget doctors, this is about injured victims—people who have been harmed and in essence are tortured for life.

THE TIME FRAME:  1 YEAR

This is also a horrible law.  One year is not enough time to realize you are injured due to malpractice, you must interview possible attorneys, collect all the necessary medical records which are normally stored in other states, hire an expert (which will also be located out of state), and finally, allow for a party to grieve.   If you lose a loved one, litigation and suing is not on the forefront of someone’s mind.  One year is simply too soon to be the cut-off.

THE OTHER TIME FRAME:  NOT MORE THAN THREE YEARS

If you have a sponge left in your abdomen after surgery, but it is not recognized for five years, you can’t sue!  Is that fair? No.  Enough said.

Our law firm handles mal-practice cases because we believe the system needs experience attorneys to protect the public from harmful doctors and to encourage proper medical treatment.  No one is above the law.  Contact  Benson and Bingham if you have been injured through no fault of your own.

In recent years, most contracts have become very inclusive of arbitration provisions to mandate arbitration over a jury trial.  Arguably, this takes away from victims rights to have a jury decide the damages–something our fore fathers likely never envisioned changing.  But, it has.  The reality is that arbitration clauses limit a person’s ability to become litigious.  Real estate contracts now have provisions that mandate arbitration.  Often, the rules of evidence are relaxed, the arbitration is quickly performed, the costs are less, and it is final in its’ adjudication.  Sadly, this wave of alternative dispute resolution has certainly kept the court rooms from being inundated with contractual disputes, but has also taken such a strong right away: the right of your neighbors to hear your dispute on the merits and make an appropriate value decision.

In the context of automobile insurance cases, binding arbitration is mandated in certain policies.  Why?  It saves the carrier money to arbitrate a matter over litigating it in court.  It also takes away the “jackpot” that juries can sometimes award–even when justice requires.  This is problematic.  Often, the 1st party coverage does nothing to discuss terms of the arbitration.  It requires you arbitrate, but leaves out the important and sometimes crucial terms.  Thus, an attorney should argue, that the missing terms must be interpreted to fall under regular court rules.

For example, if a policy of insurance mentions an arbitration clause, but fails to state whether costs and attorney fees would be available to the prevailing party then the default would be the state civil procedure rules as they apply in a regular jury trial.  Also, who must pay for the arbitration?  Is this something the person seeking the justice must pay, or must the defendant pay or must they split the costs?  The costs can run up to many thousands of dollars depending on the complexity of the arbitration.

More and more people are now finding these sneaking clauses in their doctor’s offices.  I had a client who went in for an elective medical procedure (plastic surgery) and noticed this odd statement that she is is giving up her rights to a jury trial if she signed the bottom line.   Other people are now finding this adhesion provision in the contract that they must accept if they want the necessary service.  Some would argue this is merely an insurance requirement by the mal-practice carrier, and it just might be.  Sadly, our own congress set out to limit everyones’ rights by voting for a Federal Arbitration Act that severely limits a person’s contractual rights.  If you have been involved in an accident or are now facing an arbitration Call Benson & Bingham today.

Often times physicians do not preform the appropriate tests or evaluations in determining the cause of an individuals health problems. However, a misdiagnosis or failure to correctly diagnose a patients symptoms does not always give rise to medical malpractice.

First, an individual must be evaluated by another physician to determine if the initial doctor deviated from the standard of care.  Secondly, one must determine if the initial physicians misdiagnosis or failure to diagnose the patient caused the patient additional damages.  For example, did the doctor fail to diagnose cancer found in a patient which if diagnosed initially could have prevented the cancer from growing or spreading; or did the doctor overlook a tumor which subsequently was found to be the same size as the tumor was during the initial evaluation, thereby the patients damages were essentially the same.

An individual must be able to prove the doctors negligence caused them additional damages.  To be successful in medical malpractice lawsuit the plaintiff must be able to state their damages and demonstrate those damages to a jury with specificity.  Contact the Law Offices of Benson and Bingham if you believe you have been subjected to misdiagnosis or sub-standard care.

Q: I am a 47 year old woman. After a blood test, my general MD informed me I had borderline hypothyroidism, but he felt I did not need any medicine. However, he sent my records to my OB/GYN do to a perimenopausal hormone indication. My OB/GYN told me that I did need thyroid medicine, and prescribed 60mg of Armour Thyroid. On my third day of taking the prescribed drug, I was rushed to St. Rose (on Eastern) with heart attack-like symptoms.
I was admitted, and after two days of extensive testing, I was told there was nothing wrong with my heart, but my thyroid levels were extremely elevated. Upon my release, I went back to my general MD who said I was  experiencing a Thyroid Storm do to the wrong dosage of prescribed thyroid medicine (Forest Labs – the maker of Armour has a 15mg and a 30mg). I lost a week of work, had an angio procedure done in my right leg artery and continued with symptoms (loss of breath, dizziness, etc) for a month – until blood test confirmed my thyroid level was returning to normal. My insurance has paid the vast majority of the medical bills, although I have been stuck with the deductibles. My question is – do I have a case against my OB/GYN?

She has claimed she is not responsible for how my body reacted to the drug she prescribed, even though there were lesser dosages available. Thank you. Also – I am not on any other prescribed medication, so there was no chance
of a reaction to another drug.

A: It sounds like someone may be liable, however, not sure whether your damages are large enough to justify pursuing a case as the costs of suit may exceed your eventual recovery. You need to seek the advice of an endocrinologist who specializes in thyroids and get that doctor’s advice on the amount of medicine you were prescribed. I would not trust a “general doctor” or OB GYN on a thyroid issue. Seek advice from a specialist and contact us if you have any long term effects of the treatment.

Very truly yours,
Joe

Q: Hi, my daughter passed away on 1/9/09. She had been ill, and so I took her to the Doctor on 12/10/09. I told him she was having nose bleeds, and he looked and asked if she was doing cocaine. No was the answer to that. He never did blood work and sent her home. She had panic disorder and had just lost her job so I guess everything was put off to that. He told her she was healthy and just needed to take care of the panic disorder. One month later she was found dead in her home of a massive gastrointestial hemorraghe. He will not release her medical records without a letter from a lawyer. I am her mother and she left two small boys. What to do? Can you give me a free consultation, or do you think I have no case? Thanks, and please respond.

A: I am sorry to hear of your loss.  I am happy to sit down with you and discuss your case.  We can help you get the medical records and review the merits of the case.  Based on the lack of care, and especially the failure to do any blood work, I suspect a basis for the case;  we will however, need to get a medical expert to review the case which we can provide.

Talk to you soon,
Joe