Articles Posted in Medical Malpractice

Recently, the Supreme Judicial Court issued an opinion in a complex federal and state Maine medical malpractice case. The case arose following injuries a patient suffered during a 2013 surgery to her rotator cuff. The patient argued that the medical provider diagnosed her and suggested surgery, without addressing how the patient’s Tourette’s Syndrome would affect the doctor’s surgical approach. During the patient’s informed consent process, the orthopedic practice providers did not advise her that if the doctor found a rotator cuff tear, he would not repair it because the surgery would be “guaranteed to fail.” The doctor discovered a tear during surgery and did not repair the cuff. The patient continued to experience pain and ultimately underwent surgery in 2015 and 2018 with another provider to repair her rotator cuff.

In 2016, under the Maine Health Security Act (MHSA), the patient filed a notice of claim for negligence, failure to obtain informed consent, failure to repair, and failure to obtain an MRI, against the medical provider. Additionally, she filed a federal discrimination case against the doctor based on a violation of the Americans with Disabilities Act (ADA). She alleged that the doctor treated her disrespectfully, rudely, and in an insulting manner. In 2018, the prelitigation panel found that the medical provider was not negligent. After the federal court dismissed the plaintiff’s malpractice case, the plaintiff filed the complaint in a state action. The defendant moved to dismiss the case based on claim preclusion.

A party may move to bar litigation under claim preclusion if there were issues that could have been litigated in the original action under the original claim. In this case, the court found that it was unclear whether claim preclusion bars the plaintiff’s state malpractice case. Therefore, the court addressed the threshold issue of whether they should reach the appeal’s merits. Under the final judgment rule, appellate courts will only hear appeals from “final” judgments in a case, and parties cannot appeal rulings while the case is still ongoing. However, a judicial economy exception exists, in cases where an appellate review can establish a final disposition. Courts generally invoke this exception in unique situations such as when there are multiple pending proceedings or exceedingly long litigation.

Recently, the Maine Supreme Judicial Court issued an opinion addressing whether medical records of individuals who are not parties to a lawsuit are protected from discovery. The case arose after a patient died shortly after undergoing gallbladder surgery. The decedent’s estate argued that the surgeon negligently cut the incorrect duct and caused bile to leak into the woman’s abdomen, resulting in additional surgeries, extended recovery, and additional treatments. The estate filed a lawsuit against the hospital that employed the surgeon, arguing that it was vicariously liable for the doctor’s negligent conduct.

In support of its claim, and per Maine’s statutory scheme, the decedent’s estate went through the pre-litigation screening process. At the screening panel, the plaintiff claimed that the safest manner to perform the surgery was through a procedure called the Critical View of Safety (CVS), and that the doctor did not implement this procedure. The defendant’s expert testified that although that procedure is commonly regarded as the safest way to perform the procedure, a surgeon is within the standard of care if they use an approach they are comfortable with. The doctor testified that she performs approximately 200 surgeries every year, and she does not use the CVS method.

The estate filed a motion to compel the doctor’s notes, with redactions, for the 25 gallbladder surgeries she performed before and after the decedents’. The defendant did not produce the documents, arguing that the records were irrelevant and violated privacy laws.

Although Maine medical malpractice cases often stem from the negligence of a physician, nurse, or similar healthcare provider, a significant portion of these complaints are based on allegations of dental malpractice. Like every other medical profession, a dentist’s negligence in treatment may cause patients to suffer irreparable damage. As such, over 30,000 patients in the United States have filed complaints against dentists and oral surgeons over the last ten years.

Maine law requires dentists to provide care that meets or exceeds the standards of the dental profession. Dentists must appropriately communicate their treatment plans, acquire informed consent, engage in appropriate record keeping, and provide safe and effective treatment. When a dentist fails to meet this standard, they may be liable for the damages that a patient suffers.

The National Society of Dental Practitioners compiled a list of the most common causes of dental malpractice in the country. The majority of claims stem from a dentist or their office’s failure to return a fee after promising an unfulfilled result, failing to acquire informed consent, their inaccessibility to patients, failure to refer, diagnose or treat a condition, prescribing incorrect medication, or making treatment errors.

Earlier this month, the federal appellate court overseeing Maine district courts issued an opinion in a medical malpractice case. The opinion illustrates the court’s power to exclude evidence if a party fails to comply with the court’s orders. The case raises an important issue for Maine personal injury litigants in that it emphasizes the importance of being familiar with the state’s procedural requirements.

According to the court’s opinion, the plaintiff was seriously injured after she underwent surgery at the defendant hospital. A few years after the surgery, the plaintiff filed a medical malpractice claim against the hospital and several doctors. Early on in the process, the court entered a scheduling order to outline several of the relevant deadlines. The scheduling order provided that the plaintiff must disclose the names of her expert witnesses and the contents of their reports by May 20, 2016. The scheduling order also stated that discovery was to close by November 15, 2016.

The plaintiff timely named one expert witness. At some point after the May 20 deadline, the plaintiff filed a motion to withdraw her case against one of the doctors, claiming that she did not have a case against that doctor. The court granted the plaintiff’s motion. The remaining defendants filed a motion asking the court to exclude the plaintiff’s named expert witness. While that motion was pending, the plaintiff filed a motion to re-join the dismissed doctor. The plaintiff noted that a report from another expert indicated that the dismissed doctor might have been responsible for the plaintiff’s injuries.

Maine’s Supreme Judicial Court recently decided a medical malpractice case resting on a claim that a man’s original misdiagnosis delayed his treatment and caused serious complications. According to the court’s opinion, in August 2012, the plaintiff had had a polyp surgically removed from his colon less than a week before he went to the emergency room at a Maine hospital complaining of abdominal pain. He was seen by the on-call surgeon, who ordered a CT scan. The next morning, a radiologist reviewed the results of the scan and found there were no findings that suggested an anastomotic leak. Later that night, based on the plaintiff’s condition, another surgeon decided emergency surgery had to be conducted, and in the course of that surgery, discovered a small anastomotic leak. The plaintiff was hospitalized and intubated, developed deep venous thrombosis, and had a stroke during his hospitalization.

The plaintiff and his wife filed a medical malpractice claim against the radiologist who interpreted the CT scan, the first on-call surgeon, and the hospital. They alleged that if the anastomotic leak had been identified and treated the night he went to the hospital, he could have avoided many of the resulting complications. A trial court found that the plaintiffs could not prove the claim against the hospital and the radiologist, and a jury found in the surgeon’s favor, and the plaintiffs appealed. They argued that the court should not have found in favor of the radiologist and that a jury could have found that the radiologist was negligent in reading the CT scan, and that his negligence caused the plaintiff’s injuries.

To prove the elements of a medical malpractice claim, the court explained, a plaintiff must show that the defendant departed from a recognized standard of care, proximately causing the plaintiff’s injury. To establish proximate cause in the medical malpractice claim, the evidence must show that the defendant’s’ conduct played a substantial part in causing the injury, and the injury was either a direct result or a reasonably foreseeable consequence of the conduct. The appeals court found that the record was devoid of evidence showing what role the radiologist’s reading of the CT scan played in the development of the man’s complications. Therefore, there was no evidence linking the radiologist’s conduct to the injury that related to the delay in time and the complications he suffered. For that reason, a verdict would have been based on mere speculation in finding that the radiologist’s conduct was the proximate cause of the man’s injuries.

Maine hospitals, nursing homes and other care providers are struggling to staff enough nurses to provide quality care to patients – something our Portland, Maine medical malpractice lawyers have seen lead to serious and even fatal medical errors. One study published in the Journal of the American Medical Association found that facilities with high patient-to-nurse ratios had higher risk-adjusted patient death and failure-to-rescue rates than those who had more nurses. Nurses who worked at poorly-staffed facilities were more likely to experience burnout, fatigue and job dissatisfaction, which also increased the number of medical errors they were prone to make.

Maine Health Care Facilities Seek Solutions to Nursing Shortage That Threatens Poor Medical Care

Recently, the Portland Press Herald reported a number of hospitals in Maine are getting creative with recruitment efforts, using staffing agencies to draw nurses from overseas, including countries like Jamaica, Nigeria and Ireland. Within the Eastern Maine Healthcare System (more recently changed to Northern Light Health) more than a dozen international nurses have been hired. More than two dozen are still working on a contract basis through a nurse staffing agency, and there is the possibility they’ll be hired by the hospital system after about two years. A dozen more are set to arrive in Maine in the coming months.

Meanwhile, other hospitals are hiring student nurses, giving them a job inside the hospital so they can “earn while you learn,” the idea being they’re more likely to stay in school and complete their degrees if they can earn a living while they’re completing their studies. Summer internships at Maine General, meanwhile, pay student nurses to shadow those working in nursing homes, cancer care units and surgical centers so they are exposed to a wide range of specialties within their field. The same facility allows nurses time to take on quality improvement projects, such as tackling a unit’s problem with patient falls or bedsores, paying them $3,500 to $5,000 upon completion.

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Data released from the Maine Medical Research Center indicates Lyme disease in Maine may be dropping off a bit due to hot, dry weather over the summer. However, this comes, as our Portland medical malpractice attorneys know, after a record-breaking 1,852 cases for the year in 2017. So far this year, 1,069 cases were reported, according to health officials.

Misdiagnosis of Lyme disease remains a cause of substantial consequence. Lyme disease, a bacterial infection spread by ticks, can be cured if treated very aggressively, particularly with early intervention. The hot, dry summers have resulted in lower numbers of ticks this year, which is good news. Unfortunately, people who are misdiagnosed for years suffer extensive health problems – up to and including death. Misdiagnosis of Lyme disease or delayed diagnosis denies a person critical medical intervention necessary to effectively fight the disease.

Misdiagnosis, or an overlooked diagnosis in general, is the most common type of medical malpractice in Maine. It’s important to point out that failure to diagnosis may not in and of itself be the basis for a medical malpractice lawsuit. It is when this failure to diagnose or misdiagnosis results in delayed treatment, improper medical care or no treatment at all – something that worsens a patient’s medical condition and prognosis – that can make such action (or inaction) potentially worth pursuing a Maine medical malpractice lawsuit. Continue reading