Medical Malpractice in Action
An all to frequent scenario was played out in New York’s Appellate Division, Fourth Department earlier this month, in the case of Bell v. Agarwal, 2008 NY Slip Op 07349 (4th Dept. 2008). A surgeon peforming abdominal surgery on Ms. Bell, the plaintiff, left a surgical sponge behind, inside the plaintiff, before closing her up and concluding the surgery. No matter what the other strengths or weaknesses of the case, when it comes to liability, most medical malpractice lawyers would conclude that there is a strong case against the surgeon/defendant Dr. Agarwal, based on these facts.
Dr. Agarwal, however, attempted to extricate herself from the case by claiming, in a motion to dismiss, that: the operating room nurses were responsible for the sponge count during the surgery; she, Dr. Agarwal, had relied upon their count; the nurses’ count must have been mistaken; and therefore, she, Dr. Agarwal, was not at fault.
In declining to dismiss the claims against Dr. Agarwal, the Court found that the plaintiff had raised a sufficient challenge to Dr. Agarwal’s moving papers by submitting an affidavit from a medical expert who opined that Dr. Agarwal had been negligent by failing to thorougly check the operative field before closing plaintiff’s incision, and had been additionally negligent by failing to notice the sponge, which should have been readily observable to a careful physician. Dr. Agarwal’s motion to dismiss was denied, and the claims against her will proceed, toward trial or a settlement.
Death Be Not Proud, But Could You Please Be Permanent?
Enough British dead people have come back to life to warrant the UK’s Academy of Royal Medical Colleges to issue new guidelines on diagnosing death, according to today’s BBC NEWS. According to the BBC’s report, patients who had been exposed to extreme cold were presumed dead, but came alive once their core body temperature rose. There have also been instances when sedatives have fooled physicians into thinking that a sedated patient was dead.
It’s just not the simple diagnosis that everyone assumed it was. After all, in the movies, when the bad guy gets shot in the gut, doubles over and falls onto the ground, that’s it. End of story. The farm has been bought, even if a doctor has to reach over and touch the victim’s neck, and give that solemn nod signifying the bad news.
The guidelines hold that death should now be regarded as the irreversible loss of the capacity for consciousness, combined with irreversible loss of the capacity to breathe. Apparently, the new guidelines became necessary, in part, due to the high demand for organs to be used for donation and transplantation.
In this country, Philadelphia attorney Leon Aussprung recently initiated a medical malpractice action against a hospital for mistakenly declaring his client dead, which apparently resulted in medical setbacks additional to those that had brought her to the hospital in the first place. Attorney Aussprung, who is also a physician, provides further detail in his blog, PhiladelphiaMedicalMalpracticeLawyerBlog.com.
Oh Mama, Did I Hear Obama Right?
I thought it was a bad dream–that I had nodded off while watching the most recent presidential debate and experienced a nightmare in which Barack Obama had proudly announced to the viewing public that he had supported tort reform. But then my wife confirmed that Obama, my candidate, the People’s candidate, the Great Black Hope, had indeed uttered those words in response to John McCain’s challenge to give an example of Obama’s crossing party lines to support something most Democrats did not.
Obama could have chosen more wisely. He could have, and should have spoken of something else on which he veered from the Democratic pack. Surely he realizes that so called “trial lawyers” like me support him across the country, and to us, Obama’s words were a cold slap in the face.
We support him for several reasons. His ideology–his ideas about making sure everyone in this country, no matter how disadvantaged, has an opportunity to better him or herself with some help from the government–resounds with us. The type of law we practice, largely grounded in contingency fees, allows for anyone who has been harmed wrongfully to go after the culprit without having to lay out large retainers up front, or pay big hourly fees along the way.
We support him because his healthcare plan shows a concern for the uninsured and the under insured. We support him because he has repudiated the Bush legacy that favored big corporations at the expense of the “little people,” such as their shareholders. And yet, tort reform favors big corporations– insurance companies– at the expense of plaintiffs in civil lawsuits, who find their opportunities for damages arbitrarily capped at a number that has been legislated, instead of a number chosen by the jury that heard the case.
I’m still voting for Obama come election day. But it is with substantially less enthusiasm, since his presidential agenda may now include tort “reform” that will only hurt the very people who have placed him so close to achieving the presidency.