Medical Malpractice/Improper Spinal Treatment/Settlement

NCATL Around the State Magazine

Winter 1999

VERDICTS & SETTLEMENTS

Copyright © 1999 by North Carolina Academy of Trial Lawyers

Medical Malpractice/Improper Spinal Treatment/Settlement

Jonathan Wall, of Clark & Wharton law firm in Greensboro, coordinates Verdicts & Settlements. Wall has been a contributing editor for TRIAL magazine; an Associate Editor for the ATLA Law Reporter; and a contributing editor for the Products Liability Law Reporter. He concentrates in personal injury, medical malpractice, and labor and employment law.
To contact Jon Wall, email at cwblaw@mindspring.com.
Bill Faison of Durham reports a significant medical malpractice settlement stemming from a doctor's treatment of spinal injuries from an automobile accident.
A 16-year-old cheerleader's neck was broken when the truck her boyfriend was driving flipped. She was taken to the hospital, and the defendant doctor diagnosed her with a spinal injury involving two jammed vertebrae. When admitted, the girl could still wiggle her big toes and fingers and move her arms somewhat.
The doctor placed her in traction to try to straighten her spine, and left her in traction for four days, long after her paralysis had begun to spread from her chest area.
Now, the girl is a quadriplegic with no feeling below her chin, and she requires 24-hour care.
The girl and her parents sued the doctor, alleging he should have resorted to surgery within 24 hours after the accident when her condition did not improve through traction. Plaintiffs asserted it is common knowledge that spinal injuries like the girl's must be treated within 24 hours or the paralysis is likely to worsen.
The parties reached a settlement; the defendant doctor no longer practices medicine in North Carolina.

Vehicular Negligence: Closed-Head Injuries: Verdict
G. Jona Poe Jr. and J. Bruce Hoof of Durham report a jury verdict in an automobile accident case in which defendants admitted liability but disputed the closed-head injuries to the minor plaintiff.
The Kirk family was traveling along the highway en route to the beach with their two-year-old daughter when a tire company employee backed his pick-up truck out of a drive and struck the Kirks' car, causing it to roll over and slide 130 feet. The two year-old, who was properly strapped in a child car seat, suffered severe lacerations and a closed-head injury. She required plastic surgeries to repair the scars, and she has undergone neuropsychological testing to determine the extent of the closed-head injury. Her medical bills are about $40,000.
The parents suffered minor cuts and bruises, and the mother, who believed her child was dead, suffered symptoms of post-traumatic stress disorder. Their medical and counseling bills were about $8,000.
The Kirks sued the truck driver's employer for its employee's negligence.
Defendant admitted liability, but disputed the extent of the daughter's injuries. Defense experts included a neuropsychologist from the Bowman-Gray School of Medicine and a pediatric neurologist from Boston. They testified that the girl had not sustained any permanent brain damage and that her scars were barely noticeable.
Plaintiffs' experts testified that the child had suffered significant scarring that would likely result in emotional problems later in life. Further, the child's neurological damage had already resulted in attention deficit disorder and would probably prevent her from attending college.
After a two-week trial and six hours of deliberations, the jury found for plaintiffs. The award included amounts for both parents' emotional distress.

Nursing Negligence: Lethal Dosage: Verdict
Robert Burford of Raleigh reports a verdict in a case in which a nurse accidentally administered a lethal dose of medicine.
Anderson, 45, presented to the hospital complaining of high blood pressure. When the physician ordered a 10mg dose of hydralazine, the nurse accidentally administered a lethal dose of 100mg. Anderson was rendered brain dead. The hospital allegedly told her family that Anderson had suffered a stroke, without mentioning the overdose. On that advice, the family agreed to a no- resuscitation order, and Anderson died.
Her family sued the hospital for its nurse's negligence. Plaintiffs asserted the nurse had failed to check the proper dosage three times as required by nursing standards of care. Further, she was not familiar with hydralazine and should have consulted the Physicians Desk Reference, plaintiffs contended.
Defendant admitted liability. During the damages trial, the judge denied plaintiffs' claim for punitive damages. After the month-long trial and four hours of deliberations, the jury returned a verdict for plaintiffs.

Medical Malpractice: Failure to Resuscitate: Settlement
Bill Faison and John Jensen of Durham report a settlement with a pediatrician and his practice that failed to timely resuscitate a newborn.
When the mother suffered an abrupted placenta, she was scheduled for a Cesarean section. At the birth, the baby's trachea was blocked with meconium, and the baby needed resuscitation. The pediatrician attempted to clear the trachea using an 8mm suction French catheter. Several minutes later, an anesthesiologist stepped in and cleared the trachea using a 10mm catheter, and about 10 minutes after birth, the baby was successfully intubated.
As a result of oxygen deprivation, the child is severely retarded and suffers from cerebral palsy and seizures. She will require attendant care for life. The parents incurred about $98,200 in medical and care expenses.
The parents, individually and on behalf of the child, sued the pediatrician and his practice, among others, alleging failure to timely resuscitate the baby. Plaintiffs claimed defendants should have anticipated the newborn would be in distress at birth and in need of resuscitation. The American Heart Association Textbook of Neonatal Resuscitation requires resuscitation in no more than 20 seconds-not the 10-13 minutes it took here.
Additionally, plaintiffs asserted the 8mm catheter was 20 percent smaller than the 10mm catheter-too small for the job-and the 10mm catheter should have been used from the start.
Plaintiffs' experts included seven doctors, two nurses, and two future damages experts.
With the exception of one defendant, the parties settled. Litigation against the remaining defendant is continuing.

Medical Malpractice: Failure to Perform Timely C-Section: Settlement
Wade Byrd of Fayetteville and Lamar Armstrong Jr. of Smithfield report a settlement in another obstetrical malpractice case.
Here, attending physicians prescribed pitocin in order to induce labor. The infant showed signs of fetal distress, and the mother suffered a uterine rupture. When the child was born, there was no resuscitation team present.
The child's Apgar scores were 0, 0, and 3. She suffered neurological brain damage, athetoid cerebral palsy, and speech difficulties, but her cognitive functioning is within normal limits.
The child, through a guardian ad litem, sued the doctors and their practice, alleging defendants had failed to (1) discontinue pitocin. (2) perform a c- section in a timely manner, and (3) have a resuscitation team present. The parties then settled.

Employment Law: Sex, Race Discrimination: Verdict
Steve Allen and Phyllis Lile-King, both of Greensboro, report a jury verdict based on disparate treatment of a female housing executive.
Turner, a 57-year-old African-American woman, worked for 18 years in the municipal Housing Authority. In 1990, she was placed in charge of the public housing program, which served about 1440 clients. The city also operated a Section 8 housing program that serviced 800 clients.
In 1994, the city decided to merge the two housing programs, and Turner was placed in charge of the whole program. At that time, she learned that her white male counterpart who had been running the Section 8 housing program was making significantly more than she had been making. Further, her all African-American staff made substantially less than the all-white section 8 housing staff.
When she brought the disparities to the executive director's attention, he offered to demote her. Despite a stellar performance review, he also denied her a merit increase that year for the first time since she began work there. The executive director banned Turner from department head meetings, avoided her requests for conferences, began criticizing her job performance, and denied her assistance in running the department. Further, the executive director promoted the white male counterpart to a position in which he earned $14,000 more than Turner. When Turner began suffering symptoms with no physiological etiology, her physician recommended she resign. She did, and she received psychiatric care and counseling for nine months.
She sued the Housing Authority and its executive director, alleging discrimination, retaliation, and constructive discharge in violation of the Equal Pay Act and Title VII. Plaintiff asserted her former position and the position held by her counterpart performed the same functions and should have been compensated equally.
Defendants contended the Section 8 housing position was more difficult.
At trial, past and present employees testified that the two positions were almost identical in terms of skill, effort, and responsibility.
The jury found for plaintiff on all her claims and awarded backpay, front pay, compensatory, and punitive damages.

Medical Malpractice: Failure to Perform Timely C-Section: Settlement
Bill Faison and John Jensen of Durham report a settlement for an infant who suffered brain damage after the physician failed to perform a timely cesarean section.
During labor, the fetal monitoring strips allegedly indicated the fetus was in distress. When finally delivered, the child suffered brain damage from lack of oxygen, which also resulted in a stroke and cerebral palsy. The child has difficulty speaking, and left-sided weakness affects his gait and the use of his left hand. He is mildly retarded with an IQ of 50, with little hope of improvement. The parents incurred about $50,000 in medical bills and special needs training.
The child and his parents sued the physicians and the hospital, alleging an emergency cesarean section should have been performed when the fetal monitoring strips indicated the fetus was distressed.
After plaintiffs identified 10 experts, defendants identified 15 experts, and the parties conducted 31 depositions, the parties settled. The parents waived reimbursement of medical expenses, and most of the settlement proceeds were placed in a special needs trust.

Medical Malpractice: Delayed Breast Cancer Diagnosis: Settlement
Wade Byrd of Fayetteville reports a settlement in a breast cancer case. Here, a woman presented to her physician with an axillary mass in her breast. He failed to biopsy the mass. A year later, the woman was diagnosed with breast cancer. She suffers from metastatic bone disease and emotional distress, and her life expectancy is shortened.
She sued the physician, alleging he failed to perform a biopsy on the mass or, at the least, follow her closely to monitor any changes in the mass. The delayed diagnosis allowed the cancer to spread, plaintiff claimed.
Plaintiff utilized two family practice experts and two oncologists.

Vehicular Negligence: Improper Lane Change: Verdict
Robert Burford of Raleigh reports a verdict for a woman who suffered a closed-head injury from an automobile accident.
Lester and her children were on the highway when an 18-wheeler allegedly switched lanes without warning, striking Lester's vehicle. The car spun out of control and rolled over.
Lester suffered a closed-head injury and post-traumatic stress disorder, and she underwent a complete personality change. Since the accident, she has been hospitalized for depression, and her relationship with her husband and children deteriorated.
Lester and her husband sued the owner of the 18-wheeler, alleging the driver had failed to (1) keep a proper lookout and (2) properly signal before changing lanes.
Defendants contended that any psychological troubles Lester was experiencing resulted from an overprotective childhood and a dependent personality disorder.
The jury found for plaintiffs, and the award included an amount for the husband's loss of consortium.

Vehicular Negligence: Wrongful Death: Settlement.
Gary Clemmons of New Bern reports a settlement in an automobile accident case. The plaintiff and his wife were passengers in a Suburban in Florida when the car was T-boned by a pick-up truck with an impaired driver that had run a stop sign. The plaintiff suffered severe internal injuries, and his wife died.
He sued the truck driver, alleging negligence in driving while impaired and in failing to stop at the stop sign.
After settling issues involving primary liability insurance and uninsured and underinsured motorist coverages, the parties settled.

Premises Liability: Pothole: Verdict
C. Everett Thompson II of Elizabeth City and Boyd Scarborough of Portsmouth, Virginia, report a verdict in case involving a pothole in a grocery store parking lot.
Robbins, a 54-year-old elementary school teacher, was pushing a shopping cart through a Food Lion parking lot at night. The cart wheel struck a pothole filled with rain, causing the cart to tip over and Robbins to fall. She suffered a torn rotator cuff to her right shoulder. Robbins was rated with a 20 percent disability rating, and she claimed $9,200 in lost wages. Her medical bills were about $16,700.
She sued Food Lion and the property owner, alleging the pothole was a dangerous condition of which defendants were aware and failed to remedy.
The jury returned a verdict for plaintiff.

Medical Malpractice: Negligent Injection: Settlement
C. Everett Thompson II of Elizabeth City reports a settlement for a man who suffered a sciatic nerve injury after he received a shot.
Doe was a 67-year-old retiree on total disability with a history of heart attacks. While in the hospital, he received a shot of medication in his buttocks. He immediately felt pain in his leg, and he now suffers from permanent foot drop. He was diagnosed with a sciatic nerve injury. His medical bills were about $4,400.
He sued the hospital, alleging the shot had been negligently administered. The parties reached a confidential settlement.

Disability Discrimination: Hearing Impairment: Settlement
Burton Craige of Raleigh reports a settlement in a disability discrimination case involving a former UNC-Chapel Hill graduate program student.
Laufer suffered from a severe hearing impairment. After graduating from University of California-Berkeley with honors, she decided to attend UNC-Chapel Hill's communication studies graduate program, based in part on UNC officials' assurances that the university would provide adequate accommodation for her hearing impairment. Once she began, however, she was unable to hear most of what was said during classes, which typically involved group discussions with multiple speakers.
Laufer asked the Office of Disability Services to provide group amplification or real-time captioning-two accommodations that are readily available at other universities-so she could hear and participate in class. Despite her repeated requests and dismay expressed by her professors, UNC failed to provide the necessary accommodations. When the semester was half over with no accommodation forthcoming, Laufer withdrew from the university.
She sued the university under the Americans with Disabilities Act and the Rehabilitation Act, alleging the university had failed to provide reasonable accommodations for her hearing disability. Plaintiff's expert, a coordinator of services for the deaf at another state university, was prepared to testify that defendant failed to provide reasonable accommodations and that defendant's disability services program suffered from multiple systemic deficiencies.
The settlement includes money damages as well as the university's agreement to obtain a comprehensive outside review of its services and facilities for disabled students.
1999 WL 33504680 (NCATL)