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Southern New Mexico Law Blog



A lawsuit alleging the denial of disability benefits for a veteran who suffered injuries during a privately performed surgical procedure suggested by the Veterans Affairs doctor was allowed to continue.  The Federal Circuit said there were unresolved issues as to whether or not VA care prompted the surgery.


We MUST care for our Veterans!


The United States Court of Appeals for Veterans Claims must review the disability benefits filed by the veteran claiming he became disabled after a certain nerve was served during the heart procedure, so said the 3 judge Federal Circuit Panel.






Emergency rooms have a tendency to be very very busy.   Emergency room physicians are some of the most challenged in medicine today.  Once emergency rooms can be very chaotic, medical malpractice law might afford an emergency room doctor more latitude than might be given to other doctors who have time to map out the proper course of treatment.  This latitude, however, must be given unlimited leeway.  Emergency room doctors are still held accountable for harms caused to patients because of deviations from the standard of care.  The patient must prove three elements in order to win a medical malpractice lawsuit based upon errors which occurred in the emergency room.  These elements are as follows:  1) That there was a patient-doctor relationship, 2) the emergency treatment involved negligence, and 3) the patient was harmed because of the negligence. 


Doctor-patient relationship


Generally, it is easy to establish this relationship.  The doctor-patient relationship is normally established when a doctor treats a patient in the emergency room.   Normally, records and treatment charts of the patient are sufficient to show a doctor-patient relationship.




The doctor fails to comply with the standard of care.  A physician who does not provide care within the standard of care under similar circumstances might be liable for negligence.  In order to demonstrate negligence, the patient must prove 1) standard of care and 2) breach of the standard of care


Emergency standard of care


Concerning the majority of emergency room errors lawsuits, the standard of care requires expert testimony. 


Standard of care breach


The next requirement is for the patient to show that the emergency room treatment did not comply with the standard of care.  Plaintiff has to prove that the physician’s negligence caused forcible harm in order to win the medical malpractice lawsuit.  This harm consists of:  pain and suffering, cost of medical bills due to additional corrective treatment, loss of earning capacity and loss of ability to enjoy life.   







In a medical malpractice lawsuit accusing the defendant doctor of malpractice concerning gallbladder removal surgery, which caused the patient numerous injuries requiring multiple surgeries, a Pennsylvania state jury awarded the woman $2M in the medical malpractice lawsuit. 


Following a four-day trial and 80 minutes of deliberation, the jury determined that the doctor deviated from the proper standard of care when he cut into the wrong body part of the patient during the surgery, which caused bile to flow freely to other areas of the body, causing injuries requiring surgery and other invasive procedures to repair the patient’s biliary system. The jury awarded the patient $750,000 in noneconomic damages such as pain and suffering and $1.25 million for future noneconomic damages, according to the verdict form.


The suit was filed in July 2014 and alleged that during the 2013 gallbladder removal surgery called a laparoscopic cholecystectomy, the doctor misidentified a body part that needed to be cut in order to remove the organ and instead cut into a nearby structure which caused the bile leak and subsequent injuries to the patient’s liver.  The claims were that the doctor failed to use a long-established surgical technique which would’ve prevented his error and also didn’t recognize his error at the time of the surgery.


It was only by reason of the patient’s deteriorating to the point of near respiratory failure that her physicians recognized something was very wrong.  Five days after the surgery, a radiology study indicated signs of a bile leak, which was confirmed the next day by a gastroenterologist. As a result of her injuries, she is at an increased risk of liver failure, which may require a transplant in the future.






Yes! These things happen!!


Patient dumping because of insurance or financial reasons.  Misdiagnosing a medical condition.  Mistakes with medication and misinterpreting test results.  Concerning the above-mentioned emergency room errors, usually the most common type of emergency room error concerns misdiagnosis.  The most commonly type of misdiagnosis are heart attack, stroke, infection, and meningitis. 


You might have a medical malpractice claim if one of the above emergency rooms has caused a serious injury.  There might be a wrongful death claim against the negligent doctor if the results are fatal.  Doctors, hospitals, surgeons and other health care support staff might be negligent if there were emergency room errors. 


Causes of emergency room errors


Fortunately, most emergency room errors are preventable.   Emergency room errors which are common causes for injury include overcrowding, staff stressed and/or fatigued, lack of equipment or resources, low staffing, not obtaining medical history, rushing one patient to another, deviating from a standard protocol, shortage of hospital beds, and inexperienced staff. 


If you believe that your injuries or the injuries of a loved one were caused by emergency room errors, you could be entitled to compensation to recover damages.






A medication error, according to the National Coordinating Counsel of Medication Error Reporting and Prevention, consists of a preventable event that may cause or lead to inappropriate medication use or patient harm while the medication is in control of the health care professional.  Many studies have explored this subject since there is a large number of Americans who would die each year due to prescription errors.   A report by the Institute of Medication stated that between 44,000 to 98,000 people die in hospitals because of medication errors which could have been prevented.


Things Causing Medication Errors


The work environment leads to medication errors.  It could be attributable to interruptions, inadequately staffing, sleep deprivation, language barriers and lack of data concerning the patient.  These can be caused to the following factors:  Ordering errors – when the physician orders the wrong drug.  Administration errors occur when the drug is given to the wrong patient.  Transcription errors occur because incorrect data was entered into the medication administration record.  Dispensing errors because many of these errors involve the pharmacies supplying an incorrect medication or dose.


Although the pharmacist is paramount to reduce medication errors.  In their conclusion, in order to reduce medication errors, the process must identify where most errors occur and implement a quality improvement program to reduce the risks of errors.   Reporting errors by employees should be emphasized in a good-faith nonpunitive environment which leads to the reduction of pharmacy errors. 







Why do prescription errors occur?  What can we do to limit prescription errors?


Inadequate Work Environment


Having enough pharmacists is a requirement in order to reduce prescription errors.  Approximately 50% of pharmacists in the United States said they had so much work that they could not do their job well.  More than half of retail and chain pharmacists stated that they had a high stress environment because they had to meet high quotas.  Pharmacists now have limited time for lunch and breaks.  They have impaired cognitive function.   Studies have found that pharmacists who have adequate lunch periods and breaks make fewer mistakes.  83% of pharmacists stated that performance metrics contribute to pharmaceutical errors. 


Daily the pharmacy dispenses 250 or more prescriptions a day.  This converts into 31.25 prescriptions per an 8-hour shift or 1.2 minutes to fill out and prepare each prescription.  This does not include the time it takes for pharmacists to check for medication drug allergy interactions, contra indications, or answering phone calls from insurance companies, prescribers, and patients.


Lack of consultations


The California board of pharmacy learned that 85% of pharmacists indicated that their work load was too high and 73% said that they were understaffed, which did not enable to engage in consultations. Normally, at a minimum, consultations include the name and description of the medication, directions of use, potential side effects, and expecting benefits.   Pharmacy errors could be corrected in 89% of these situations if they had proper consultations.  Unfortunately, time did not afford them enough consultations. 


The key to limit prescription errors 


Adequate staffing needs to be addressed at the pharmaceutical organizational level.  This will enable proper quality insurance programs incorporating technology to restructure the work environment and to engage in consultation. 







When the decedent complained about the drug, his doctor switched the decedent to Methadone, a narcotic pain reliever, and the prescription was filled by a pharmacy.  After taking the first pills, he died within 36 hours. 


Many pharmacies are coping with a shortage of pharmacists.  While the prescriptions are increasing traumatically.  To satisfy this increased business of prescriptions, pharmacies have increased more reliance on technicians who have less training and lower salaries than pharmacists who fill the prescriptions.   The prescription instructions were to take 4 pills as needed for chronic pain.  The autopsy showed that the since the decedent was not instructed how to take the prescription, he died of Methadone toxicity. 




Do you check your prescriptions for accuracy after you pick them up?  Has a pharmacy ever made a mistake filling your prescription? 


Assuming that the prescriptions are properly done, millions of patients pick up their prescriptions daily.  Prescription errors injury 1.3 million individuals each year according to the FDA.  Additionally, they kill at least one person a day.  Healthcare costs from prescription errors are estimated at approximately $21B yearly.






Why can’t we be properly compensated?


The House Committee approved legislation that would make it more difficult for patients to personally obtain damages from the physicians.  This was a major concern for physicians pertaining to medical malpractice lawsuits.  The legislation which was approved by the House Judiciary Committee caps damages which would be paid by doctors, hospitals and nursing homes. 


The majority of states already have limits on monetary awards paid by healthcare providers.  This legislation would cover healthcare providers who are insured under Medicare, Medicaid, Veterans or military health plans.  Democratic lawmakers stated that this legislation might indirectly protect pharmaceutical companies and medical device makers who sell faulty products.  Furthermore, this legislation places caps on non-economic damages which would give immunity to pharmaceutical companies in lawsuits in which the plaintiffs were harmed by FDA approved prescriptions. 





Including neglected patients and after two dangerous patients escaped a year ago, the inspectors continue to find the same safety issues at Washington State’s largest psychiatric hospital. 




The inspectors learn that the hospital administrators make decisions that adversely affect patient safety.  The staff was not properly trained or qualified and there was a fear of retaliation from managers who focus more on bureaucracy rather than safety issues. 


In order to correct the safety issues of the two dangerous patients escaping, the state is hiring additional staff members. When a former worker faced retaliation because he reported a patient neglect, the Judge issued an injunction against the hospital that requires the hospital to answer to a pattern of retaliation.  The judge also ordered a $1.1M award to the former worker who faced retaliation. 





To settle a lawsuit that the hospital bills for unnecessary tests, the Detroit area hospital agreed to pay $791,000. 


Why does this happen??


Hundreds of patients who the government says were intentionally mistreated and misdiagnosed by Fata did this because he wanted to make money.


In one case, Fata diagnosed the patient with non-Hodgkin's lymphoma when she didn't have the disease and treated her with chemotherapy and radiation — treatments that have stripped her immune system and left her with chronic health issues.


The once-prominent Oakland County doctor pleaded guilty in September 2014 to poisoning hundreds of patients intentionally through unnecessary treatment and raking in more than $17 million from fraudulent billings.  Following the doctor’s arrest in 2013, the federal government seized many of his assets and set up an $11.9 million restitution fund, which is designed to help victims recover medical costs and other expenses. The government had seized $13 million in total assets from Fata.  The lawsuit was against Critterton Hospital Medical Center which used Dr. Fata.  Dr. Fata’s office manager blew the whistle and will be awarded $158,000. 




U.S. Attorney’s office said that the hospital voluntarily disclosed the lack of necessity in the lab tests.  The doctor was sentenced to 45 years in prison for these despicable actions.







How could this be???


Concerning Jurisdiction, a Pennsylvania Judge dismissed a nursing home death lawsuit.  A lawsuit that was filed against a nursing home alleging that it was responsible for the resident’s death resulting from a fall was dismissed by a Pennsylvania judge, ruling that the victim was a resident of the state in which the facility was in, thus eliminating federal jurisdiction. 


A U.S. District Judge granted the nursing home’s bid to dismiss a lawsuit from the estate of the 84-year-old resident of the facility who died after a fall. The suit, filed by estate administrator, alleged that negligence on the part of staffers at the nursing facility caused her to suffer a fall that led to her death. The court agreed that the suit had to be dismissed, as the resident at the time of her death was a Pennsylvania and not a Florida resident, meaning the federal court lacked jurisdiction.  “[T]here is no question that plaintiff resided in Pennsylvania at the time of her death and the nursing home records show that, when admitted, she intended to remain there,” the court said. “Thus, defendant has produced sufficient evidence to rebut the presumption favoring the previously established Florida domicile.”


What happened?


She had been admitted to the nursing home in early October 2015, according to the complaint. Shortly after that, the facility reportedly judged that she needed a two-person staff assist to move from her bed to a chair. On Oct. 20, 2015, less than two weeks into her stay, the victim fell while two nursing assistants were transferring her from her bed to a chair. The fall, the complaint alleged, was about three feet and caused a fracture to her hip and a head contusion, among other injuries. She died later that day, according to the complaint.







Why can't others just respect our privacy!!!


When two patients were filmed without their consent, New York Presbyterian Hospital agreed to pay $2.2M penalties to Federal Regulators.


Preventing healthcare providers from allowing filming crews into treatment areas without the consent of the patients is not permissible according to the rules.  This penalty can limit popular reality television shows which films emergencies and traumas in the emergency rooms and obtaining permission from the patients after the events have transpired.  The health insurance portability and affordability act is regulated by the Office of Civil Rights.  HIPAA provides privacy rights for the federal patient.  Privacy regulations for enforcing the law does not permit filming television crews access to patients’ health information without authorizations.








Settlement of a baby’s injury largest in California history! 


A mother and her 3-year-old child were awarded a $20M settlement, the largest in the state history of medical malpractice for California, after a feeding tube error followed the girl’s birth. 


Baby Sophia was born prematurely but healthy in 2013.  Four days thereafter, the mother entered the newborn ICU to find the baby pale and not moving. 


Why do these things happen??!!


Because of human error, the machine attached to the baby’s feeding tube did not operate properly.  This caused the baby to get too much glucose, resulting in an imbalance of electrolytes.  Sufficient oxygen couldn’t reach Sophia’s brain and she suffered irreversible brain damage and cerebral palsy. 





A medical malpractice arising from pre-term labor and baby’s resulting in brain hemorrhage trauma, a jury awards $14.5M


The mother was admitted to the hospital on several occasions due to pre-term labor.  The labor was stopped with medication and bed rest.  Again, the mother went into labor and gave birth to her baby at 25 weeks of gestation.  the baby suffered a brain hemorrhage, resulting in cerebral palsy, cognitive delays, visual impairments and other issues which will require lifelong care. 


The parents filed an action against the medical center.  The lawsuit continued for 11 days.  The jury reached a Plaintiff’s verdict in favor of the parents, awarding $14.5M.



How to Avoid Motorcycle Accidents


First off, do not drink and ride.  Approximately 50% of all motorcycle accidents involve alcohol use.  Maintenance for the motorcycle.  Making sure that the motorcycle is in tip-top running condition, which includes checks of the tires, headlamps, turn signals, engine and brakes helps to avoid accidents. 


Motorcyclists Clothing


Motorcyclists should wear protective clothing such as sunglasses, jacket, faux gloves, long pants and boots. 


Motorcycle Training


90% of all motorcycle accidents involve motorcyclists being taught by friends.  Therefore, it is essential to get professional training. 


Motorcycle Helmets


Wearing a helmet substantially reduces head injuries, which can lead to serious bodily injury or death. 


Avoid Lane Sharing


Sharing a lane with another motor vehicle does not anticipate motorcycles can lead to serious accidents. 









Hemorrhaging in a maternal death, such as one that was caused in this case, have been on the decline nationally. 




In New York City, 38 related deaths were attributable to hemorrhaging.  More than 630 live births took place between 2006 and 2010 according to the City’s Department of Health and Mental Hygiene.  Headlines can be scary when deaths are caused by medical errors.  In 1999, the Institute of Medicine published a report indicating that 98,000 people were dying in the United States as a result of preventable medical errors.  The number has now increased more than 250,000 which makes preventable medical errors in hospitals the third largest cause of death in the United States in 2013.  Research in this area is very difficult because of various reasons.  When a person dies in a car accident it is rather clear what caused the death.  This also is applicable for suicide, homicide, or drug overdose.  When an 86 year patient with dementia and cancer dies and has also been given a drug in a too high dose a few weeks earlier, is the error that killed or the underlying disease or age? 






In spite of a Tort Reform Statute, woman who lost all her limbs recovers $25M lawsuit.




A court ruled that Wisconsin’s Tort Reform Statute does not apply to a case in which there was a $25.3M recovery for a woman who lost her arms and legs because of medical malpractice.  The woman was admitted to a hospital with severe abdominal pains along with fever. The doctors who treated her recognized the signs of infection and included it in her diagnosis but did not relay this information to her.  She was released home without being told about the option of antibiotic treatment to address any possible infection and she was referred to her personal gynecologist.  The following day, her symptoms worsened and she visited a different emergency room where she was promptly diagnosed with septic infection caused by Strep A.  thereafter, the infection spread and her limbs were amputated in order to survive.   Her mobility was ultimately attached to prosthetic limbs. 




The Wisconsin Tort Reform Statute limited the amount of non-economic damages to a medical malpractice plaintiff can recover.  This law was enacted with the aim of reducing non-economic damage awards.  The jury awarded approximately $16.5M for non-economic damages.  The Court ruled that Wisconsin’s Tort Reform Statute had the presumption of overall constitutionality but ruled that the cap violated the lady’s right of due process and equal protection.  The Court’s rational was that the case fell within a case of medical malpractice victims who are most affected by the cap and that applying the cap to these specific plaintiffs was not rationally related to the legislative’s goal of reducing healthcare costs and implementing the gap. 







A husband thought that the worst was completed after his wife prematurely gave birth to their child at home.  The wife was placed in an ambulance after the emergency responders arrived.  Photos of the newborn were taken by the parents and family members were called.  Everybody was happy.




Less than 12 hours after giving birth, the mother was pronounced dead.  She had bled to death after a series of surgical procedures at the hospital. 


Lawyers filed a notice of claim against the hospital operated by New York City Health and Hospitals, as well as more than 6 doctors who treated the mother, alleging malpractice and medical negligence.  In a study released by the Institute of Health Metrix and Evaluation, the United States is one of several countries whose maternal mortality rate has in recent years risen although there have been improvements in healthcare.   Researchers believed that the recent increase is attributable to heart problems and chronic medical conditions such as diabetes and obesity.




                      PFIZER PAYS $60M



WHY? WHY? WHY?   Pfizer, one of the largest pharmaceutical companies agreed to a multimillion dollar settlement on charges by the Securities and Exchange Commission (SEC) when its’ overseas subsidiaries were engaged in bribing of doctors and other health officials to increase the sales of their product.   Pfizer would have to pay $45M in penalties.  Additionally, the Justice Department stated that Pfizer HCP Corporation would have to pay an additional $15M to settle similar charges. 


Do Big Pharmacy Companies really need to do this?


The initial charges were initiated under the Foreign Corrupt Practices Act and regard activities that appear to have wide spread support on foreign shores by indigence cultures regardless of the legality.  These illegal activities are alleged to have occurred as far back as 2001, and involved the bribes and payments to doctors.  Pharmaceutical companies continue to increase their activities in foreign markets because of the manufactured drugs at less costs than similar production in the United States.  The sale and marketing of pharmaceuticals in emerging markets where citizens now have the financial means to purchase said vacation, the capacity to resist such an ingrained culture of corruption in several countries has been seen to leave pharmaceutical officials on that ground.






A Connecticut State Jury Awards $12M in medical malpractice lawsuit alleged perforation of ascending colon during elective laparoscopic hernia repair.


So Tragic!


A Connecticut State Jury awarded $12M to a couple in a medical malpractice action brought after the wife suffered a perforated colon during an elective laparoscopic hernia repair.  The couple alleged that the perforated colon was not timely diagnosed and treated.  Consequently after the delay, the wife suffered profound septic shock, acute respiratory failure, metabolic encephalopathy with coma and prolonged intubation and ventilative support. 





Georgia Jury awards $8.4M in a medical malpractice lawsuit brought on behalf of an infant who suffered hypoxic ischemic brain injury at birth. 


The mother was admitted to a northeast Georgia medical facility to deliver a full-term baby.  Several hours before the delivery, the baby’s heart rate was noted at deaccelerating and variable.  The baby was born severely depressed with Low APGAR scores and metabolic acidosis.  He was not intubated for 8 minutes and continued to deteriorate, resulting in a full code and resuscitation.  The baby was diagnosed with hypoxic ischemic brain injury and cereal palsy.


The lawsuit proceeded to trial and the jury returned a verdict in favor of the child’s parents for $8.4M. 





More likely than not, male doctors have legal action more than female colleagues.  Male doctors are almost 2 ½ times more likely to have legal actions then female doctors according to a new study investigating sex differences in legal action.


Published in the BMC Medicine


The findings indicate these trends after reviewing the results from 32 studies relating to Medico-legal Action.  The difference between the sexes was found to have maintained consistency over 15 years, but the likelihood of Medico-legal Action in taking against male doctors was 2 ½ greater than it was for female doctors.  Further studies have offered potential explanation because of the disparity between the sexes may lie in that male doctors work more hours than female doctors. 






The doctor who delivered the Dixon baby did not respond to emails or phone calls because he was on vacation.  The doctor worked at a federally funded facility.  He was represented by lawyers from the United States Attorney’s office.  Subsequently, Dixon learned that she was not the first parent to sue the doctor for serious injury to newborns at birth.  The doctor delivered two babies in 2013 who were permanently brain damaged and a third who was disabled for life.  According to lawsuits filed by other parents, in another case, a patient accused the doctor of rushing to deliver her baby and used a vacuum device that disfigured her daughter, in September 2013, with permanent damage to nerves in her shoulder and neck.  The child’s mother agreed to settle the lawsuit for $92,200 according to court records. 


How is this possible!?!


In another case, which has not yet gone to trial, advised that a baby whom the doctor delivered in May 2013, according to the legal complaint.  The lawsuit accuses the doctor of ignoring signs that the baby was in distress and waited to long to perform an emergency C-section.  This caused permanent brain damage to her daughter. 


In all these cases, the mothers received their prenatal care from nurses and midwives at these federally funded clinics located at North Shore Medical Center where the doctor was on-call as the obstetrician.  


Irrespective of the $33.8M verdict, the doctor did not receive any reprimand and no other disciplinary action was taken against him and his Florida medical license.  He was not personally liable for the $33.8M judgment.  The United States government was responsible to pay the judgment.  The doctor joined the facility when he signed a contract that paid him $350 for every baby he delivered, according to the lawsuit.  He was board certified to care for pregnant women and deliver babies, and records say he delivered approximately 2,000 babies before the Dixon case.


It is difficult to find the truth.  Although the doctor had several medical malpractice lawsuits, there was no record of this trouble or fraud on his medical license.   Director of the non-profit National Medical Malpractice Advocacy Association in Texas, Deirdre Gilbert, said that patients might never be aware that their doctor have a history of medical malpractice because monetary settlements with injured patients are often confidential.  In many other cases, a doctor isn’t named in the lawsuits.   In the 3 medical malpractice lawsuits involving the doctor in Florida, the defendant was the United States Government, which is liable under federal law for injuries caused by its medical employees.  The Florida Department of Health fails to inform patients of any type of malpractice, they only say the license is “active and clear.”  The Health Department for the State of Florida says that it does not investigate decisions for malpractice unless the patient files a formal complaint.  The Florida Board of Medicine can discipline doctors for malpractice, including imposing fines and revoking their license.  Florida law requires doctors to report adverse incidents that involve them.  Although the doctor was reported in this case, consumers still might not hear about it.  If the Health Department for the State of Florida investigation panel issues a probable cause finding, those records then become public. 


Risk of brain damage


Despite the doctor’s experience, since he began practicing in Florida in 2009, medical experts who testified in the Dixon case found that the doctor failed to act on signs that the fetus was in distress. 







It will cost $33.8 million!!


When the obstetrician arrived at the bedside of a pregnant mother at North Shore Medical Center in Miami, the mother was in her final stage of delivery and ready to deliver her baby boy.


This was not a high risk pregnancy.  During the next 90 minutes, the doctor made several errors that led to a tragic outcome for the baby boy.  Through a federal lawsuit, the family was awarded a medical malpractice judgment in the amount of $33.8M.  Nurses were ordered to restart a drug strengthen contractions as was ordered by the doctor.  The doctor failed to perform a C-section.  The doctor walked away several times for long periods.  During one of these long periods, for about 8 minutes, the doctor called his stock broker.  When the baby boy was delivered, his face was blue and his limbs were numb.  The medical team was able to revive the infant.  By that time, he suffered severe brain damage due to a lack of oxygen. 


The court’s judgment will help to pay for a lifetime of round-the-clock for the disabled son.  






$9M award in Federal Jury Medical Malpractice case!!


Federal Court is the venue where the majority of medical malpractice cases are tried since the malpractice is alleged to have occurred in the state.   A healthcare facility has received federal funding, the lawsuit is normally tried in Federal Court where it is defended by the United States Attorney’s Office. 


A Federal Jury awarded the surviving family members $9M in a case where the 40-year-old mother of 6 lost her own life and that of her unborn child in a Chicago hospital.  The 7-month pregnant patient went to the hospital with a chief complaint of shortness of breath.  Instead of being transferred to the intensive care unit, she was placed in a regular room since she was diagnosed with pneumonia.  Subsequently, her condition became worse.  Nurses attempted to communicate with her doctor by phone but were unsuccessful.  The lawsuit alleged that instead of transferring her, the nurses did nothing.  After about 1 hour, the patient was found unresponsive and could not be revived.  The child was delivered still-born during emergency caesarian section. 




During the trial, the doctor and the nurses blamed others. 









Informed consent impacts a medical malpractice lawsuit.  The risk of proposed treatment must be explained by the doctor to the patient.   The patient’s consent must be obtained by the doctor before giving the treatment.  This requirement is called “duty of informed consent.” 


Some medical malpractice cases informed consents plays a significant role.  If a doctor were to decide that the best course of treatment to treat a patient’s digestive problems is with a dangerous procedure involving stomach tissue transplant and grafting.  If the situation is not an emergency,  the doctor believes the procedure is the best way to cure the problem.  The physician obtains tells the patient what the course of treatment would be, the patient asks no questions and prepares for surgery.  The surgeon performs the surgery very well, but due to no fault of the doctor, the patient loses ability to digest certain foods properly.


More than likely the new patient will have a claim for medical malpractice, although the doctor made no mistakes performing the surgery.  A patient could win the medical malpractice case proving that the doctor made a mistake prior to the surgery because he failed to obtain “informed consent.”  


Informed Consent Requirements


Information requirement demands that a physician provide a patient with adequate information to decide whether or not the proposed course of treatment is proper.  The consent requirement states that the doctor obtain the patient’s actual consent.   There are no exceptions to the Consent Rule.




A patient arrives unconscious and not able to communicate, the physician’s duty is to save the patient’s life.  The doctor is not required for informed consent until a reasonable arises to do so.   The patient cannot refuse to consent and sue the doctor for treatment already provided.  Although the patient can refuse to consent to additional treatment and the doctor must honor that decision.





The Supreme Court struck down contentious med-mal ruling. 


Indiana Supreme Court struck down a highly disputed medical malpractice case while concurrently adopting a recent court of appeals opinion.  An $8M settlement was reached to compensate 43 patients who were victims of a Michigan cancer doctor who allegedly treatment patients unnecessarily and billed fraudulently.  The settlement brought to an end the lawsuit that also named 3 different healthcare hospitals.


What happened?


An attorney who represented several of the victims, stated that the medical malpractice laws in Michigan impede victims from collecting significant damages, capping each claim at $438,000 with no exclusions even for serious cases. 





$30M Medical Malpractice Settlement Against Doctor who worked at Chicago Hospital. 




A doctor who performed several experimental surgeries on a 6-year old patient settled a medical malpractice lawsuit for $30M.


The child had irreversible brain injury and cerebral palsy after the final and 25th surgery.  The doctor was on the faculty of the University Illinois at Chicago and also worked for Chicago based Rush University Medical Center.    The settlement ranks as the fourth largest patient in Illinois for a medical malpractice case involving a child.


The child was born with a leak in his esophagus and other conditions which were not life threatening.  The lawsuit alleged that the doctor was negligent when he performed a second operation less than a month after the first surgery to repair the leak which was conducted the day after the child was born. 




During the next 17 months, the doctor operated 24 times on the baby, including placing and replacing a stint in his esophagus.  The lawsuit alleged using a stint to fix in the child’s esophagus was an unproven method.  The final surgery consisted of the doctor suturing device to attempt to repair the esophagus which was inappropriate. 






In a parent’s wrongful death and medical malpractice lawsuit arising from the death of a 25-year old daughter given intravenous fluid without proper monitoring, a Tennessee Jury awarded $3.25M.




A 25-year old was taken to the emergency room at a medical center complaining of nausea, vomiting and syncope.  She had low blood pressure and complained of head, chest, and abdominal pain.  She was initially treated with intravenous fluid medication and was admitted the following day to the hospital. 

The administration of intravenous fluid continued.  The patient was exposed to an excessive amount of isotonic fluid.  She continued to complain of pain, nausea, shortness of breath, and chest pain for about 6 hours after being admitted to the hospital.  She was pronounced dead at 1:15 a.m.  It was alleged that her heart and lungs were overdosed by a viral infection that inflamed the tissue around her heart and the amount of fluids she received. 




The parents filed a lawsuit alleging wrongful death and negligence.  The claim was filed against the treating ER doctor and admitting physician.  After the 10th day of trial, the jury found that the hospital was responsible and awarded damages of $3.25M.





A reckless campaign ad results in $16M settlement


A couple was awarded a $16M settlement award had sought a natural child birth.  They claimed that the hospital’s advertising campaign was recklessly fraudulent and the medical care was negligent. 


The lawsuit of the couple stated that during the woman’s labor, she expected to be able to rest on her hands and knees.  Instead, the hospital staff restrained her forcing her to lie on her back.  Furthermore, a nurse applied pressure on the baby’s head to postpone the delivery which was alleged in the lawsuit. 


Consequently, the woman sustained debilitating nerve damage that causes her significant pain.  The jury awarded the couple $10M in compensatory damages, along with $6M for punitive damages.






A Philadelphia jury found the hospital of the University of Pennsylvania negligent in April 2016, had a 65% liability for staff members failure to notice a woman’s detrimental reaction to an anti-coagulating drug Heparin.  The attending physician in the case was also found 35% liable. 




The drug was administered to treat a benign brain tumor and caused the victim to suffer a catastrophic brain injury and paralysis.  The woman was awarded $44.1M in the resulting medical malpractice lawsuit.




The Myth of Frivolous Medical Malpractice Lawsuits




On an average, most medical malpractice lawsuits require two to three years of litigation.  This is a process that is very complex concerning legal issues and very expensive.  Most medical malpractice lawyers who filed medical malpractice lawsuits do so after giving it serious consideration.  Medical errors are the third leading cause of the United States and kill more than 400,000 people according to the Journal of Patient Safety.  One of the most common errors is caused by miscommunication. 


Some of the reasons for medical errors are attributable to increased production demands, physicians are expected to give quality care in adverse working conditions, with decreased staff and a shortage of physicians that leads to extreme fatigue.  This information was cited in the Journal of Patients Safety.


Physicians and insurance companies, in the 1980’s, claimed they were being driven out of business because of frivolous medical malpractice suits and they demanded tort reform.  There is the myth that many doctors are leaving the practice because of frivolous medical malpractice suits. 




As a result of the call for tort reform, caps have been placed on the amount of money a patient can receive in a medical malpractice suits.  The patients are not aware of these caps until they are actually harmed and are required to file a medical malpractice lawsuit. 





 In the U.S.A. medical errors are the third leading cause of death. 


After heart disease and cancer, medical errors are the third leading cause of death in the United States according to a study published by the British Medical Journal.  


Based on death rates between 2000-2008 which included data from four studies, the medical errors were determined oto be the third leading cause of death in America.  Based upon 35,416,020 hospitalizations, 251,454 deaths were derived from medical errors which was based upon hospital admissions.  this means that 9.5% of annual deaths in America are attributable to medical mistakes. 







When a baby’s head and shoulders are too large to pass thru the birth canal, this is called Cephalopelvic Disportion (CPD) which is a labor complication.   Physicians and staff must act within the standard of care when CPD occurs. 

When are mothers at risk for CPD?



A mother may be at risk for CPD if the baby is too big because of the following:


               1.            Gestational diabetes

               2.            This is not the mother’s first pregnancy

               3.            Not being delivered until past the due date


Symptoms of CPD


The doctor should be aware of any symptoms that the baby is suffering from CPD because of the following:


1.            Abnormally Amniotic fluid.

2.            Large height because the distance between the pelvic bone and the top of the                                  uterus

3.            Signs of fetal distress because of low fetal heart rate or oxygen levels

4.            Longer than average labor




Hazards Causing Motorcycle Accidents


Motorcycle Lane Splitting


When a motorcycle drives between two lanes of stopped  or slowing moving cars, lane splitting occurs.  A common reason for motorcycle accidents in lane splitting occurs because a motorcycle is in close proximity to cars and cars don’t anticipate motorcycles passing them in slowed or stopped traffic. 


Alcohol Abuse and Speeding


Death or serious injuries are likely to occur in accidents entailing alcoholic consumption and speed.  The most dangerous condition for a motorcyclist is when cars are making left hand turns.  These accidents account for approximately 42% of all motorcycle accidents involving cars.  Usually, the car hits the motorcycle when the motorcycle is riding straight through an intersection, passing a car, or trying to overtake the car. 


Accidents between objects and Motorcycles


Motorcycle accidents with fixed objects amount to 25% of all motorcycle deaths.  This is especially true since the motorcycles have no protection.


Motorcycle Road Hazards


Potholes, dead animals, slick pavements and uneven heights of payments, and unexpected objects on the road presents serious safety problems to motorcyclists.  Always take extra precaution on roads under construction.  






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Perforated colon during abdominal surgery results in $2.8M Florida medical malpractice verdict


The patient had gone to the emergency room complaining of acute abdominal pain.  The hospital’s on-call surgeon determined that the patient needed gallbladder surgery that was scheduled for the next day. 


During the surgery, the surgeon perforated the man’s colon causing severe pain that required intravenous pain medical for three days, during which he had symptoms of bowel perforation that were not timely or properly diagnosed.  When the man was discharged from the hospital, he suffered renal failure, heart damage, and dementia.  He had hospitalizations and in-patient rehab stays over a period of six months.  Additionally, he had to have dialysis.  He sustained respiratory failure and required a tracheotomy.  After 12 months, he was on a ventilator.  Furthermore, he needed to have a pace maker implanted, had to have liver abscesses drained and required multiple revision surgeries for his Ileostomy.  Later, the patient suffered septic shock and was near death when he underwent surgery with a second surgeon who discovered the colon perforation.  The second surgeon removed approximately two liters of feces and blood from the abdomen.  This required the removal of a large section of his colon, creating an Ileostomy.   The Ileostomy cannot be reversed and the man will pass feces into a bag for the remainder of his life. 


Overall conclusion?


A Florida medical malpractice jury awarded the Plaintiff $9.2M against the surgeon who perforated his colon during abdominal surgery and failed to discover the perforation in a timely manner.






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Inpatient suicide cases are the typical type of cases that could be medical malpractice.  These are people who were admitted to a psychiatric facility because they were at risk for suicide.  Typically, these types of cases the defendants are hospitals or psychiatrists.  These cases can be divided into medical malpractice suits or wrongful deaths.  The hospitals’ primary objective is to provide a safe environment to protect the patients.  Occasionally, when they are given the wrong observation level, they are not observed closely.  Thereafter, sometimes these patients kill themselves. 


Normally, when a patient injuries themselves, it is by hanging or other means.  Suicide cases proceed like any other medical malpractice lawsuit.  There are standard of care which need to be adhered to.  If there is a deviation from the standard of care in order to provide a safe environment to the patients, this breach of duty might constitute a medical malpractice lawsuit. 


In Conclusion?


Suicides are the 10th leading cause of death in the United States and approximately 42,000 die every year from self-inflicted harm, according to the American Foundation for the Prevention of Suicide.  The other thousands suffer catastrophic injuries as a result of suicide.  Two-thirds (2/3) of people who die, 66% of people who die by suicide in American are not being treated by physicians. 








Surgeon places wrong size prosthesis during shoulder replacement surgery


An orthopedic surgeon operated on a patient and the patient lost most of the use of his right arm, impacting his ability to work.  The orthopedic surgeon did a total shoulder replacement surgery on the 52 year old male patient.  The patient was a hydroelectric technician who earned approximately $46,000 per year when he had the surgery.  The orthopedic surgeon released the patient to return to work after four months with a 50 pound work restriction.  The patient could not perform his job. 


The patient had a shoulder surgery revised by a second orthopedic surgeon.


 The second orthopedic surgeon testified at trial that the prosthetic device implanted by the first orthopedic surgeon was placed too high which violated the standard of care for the area where the surgery was performed.   The second orthopedic surgeon testified that the standard of care for the placement of the humeral head prosthesis is 5 to 10 millimeters above the greater tuberosity.  In this case, the prosthesis was 25 millimeters above the great tuberosity.   After the second surgery, the patient could return to his job as a hydroelectric plant engineer.




They stipulated that if the patient worked until age 62, he would have earned an additional $385,624.  Defendant called two expert witnesses to testify that although the prosthesis was high, the joint was not overstuffed and that the surgeon used good medical judgment during the operation.  There was no testimony from the Defense on causation of the patient’s right shoulder rotator cuff problems.  The jury returned a verdict in favor of the patient in the amount of $922,854.56 for the medical expenses and lost wages. 





Medical Damages in a Motorcycle Accident


If the other motorist was not liable for the motorcyclist’s accident, then the claim is not worth too much. 


Damages consist of injuries and other losses that the motorcyclist suffered in the accident.  Damages are normally higher if the injuries as significant. 


Determining Damages for Settlement and Trial


The motorcycle claim settlement value usually is considerably less than trial value.  The injured party tries to avoid the risk of losing at trial.  Calculating motorcycle accident damages.  The Plaintiffs are the motorcyclists past, present, and future lost earnings and lost earning capacity which includes employment benefits, medical bills, and other financial losses are called “Special Damages”.  Special Damages are capable of calculations since they are calculated to the dollar. 


The motorcyclist’s pain and suffering is not capable to the dollar.  Pain and suffering is left to the discretion of the jury.  Jurors’ common sense and background experience to determine pain and suffering.  In order to calculate lost earnings, you add the earnings and the employment benefits the motorcyclist would have lost.  Determining the future lost earnings capacity is more difficult.  It requires an Economic Expert to calculate present lost-future earning capacity to the jury because it involves present value. 








Brachial Plexus occurs when a baby is too large causing hurtful nerve damage in the form of a Brachial Plexus injury.  When nerve bundles, located on each side of the neck, are injured, then there is normally a Brachial Plexus injury.   Clavicle fractures, fractured humerous, sublexation of the cervical spine, and cervical cord injury makes up the majority of Brachial Plexus injuries.  Immediate medical treatment is extremely important for a baby who has suffered a Brachial Plexus birth injury.  Severe Brachial Plexus injuries consist of a torn nerve or a ruptured nerve. 


Brachial Plexus injuries are caused when the nerve root is torn from the spinal cord.   To suffer severe Brachial Plexus injuries, require additional medical treatment.  For instance, surgery may be required to repair the nerve, nerve graphs or nerve transfers may be done to treat the baby.  Babies with very severe cases might develop permanent injuries consisting of muscle contractions or tightening of the muscles. 




Causes for Motorcycle Accidents


Distracted Drivers


Distracted automobile drivers cause many crashes for motorcyclists.  Talking on a cellphone or texting while driving remains a major problem despite the fact that these activities are outlawed in many states.  Since motorcycles are small, they are particularly dangerous for an accident.  When a driver is distracted and momentarily does not focus on the road, there is a high probability for a motorcycle collision.  Distracted drivers are a worsening problem as indicated by statistics.  In almost 1 in 4 car wrecks entail driving and texting.  


Daily, 11 teenagers die because they are texting and driving.  In 2014, 3179 people were killed and 431,000 were injured as a result of distracted driving.  Yearly, 1,600,000 accidents occur because of texting while driving.  Roughly, 800,000 drivers are texting at any given moment across the United States.  Statistics indicate that texting while driving causing the following:


               It leads to an increase in time with eyes off the road

               Slows your brake reaction by 19%

               It is the same as driving blind for 5 seconds

               It makes you 23 times more likely to have an accident


What Motorcyclists Can Do to Avoid Distracted Drivers?


Lookout for motorists who cannot stay within their lanes

Be aware of traffic from both directions when entering a road

If you cannot make eye contact with the motorist, don’t cross in front of his vehicle

Use day time running lights

Make yourself visible with reflective clothing


As a motorcyclist, you must know your rights.  If you know the law concerning helmets, lane splitting, day time headlight use and licensing, you will have a stronger claim.   Wear safety gear.  Protect your life by wearing a helmet, along with protective jacket, gloves, and riding boots.  Ride defensively.  Be aware of cars which might not be able to see you.  Maintain your motorcycle well.  A well-maintained motorcycle is always safer. 


Rider Improvement Course


These courses are invaluable and make you a better motorcyclist and support your claim that you didn’t cause an accident.  Always care your liability insurance on your bike.  Be certain that your coverage has enough to satisfy any liability.   In order to win a motorcycle claim, do the following:  stay calm and gather the facts, even if you were cut off.  Always see a doctor.  Even road rash can become badly infected if left untreated.  Next, gather evidence.  If possible, take photos of the scene and ask for any witnesses who might have seen the accident. 






Millions of babies each year are afflicted with infant brain damage.  There are many causes for infant brain damage, but many babies experience long term, permanent neurological problems, and a vast range of physical problems. 


Infant Brain Damage Causes


Oxygen deprivation, infant stress, physical trauma suffered during labor and delivery, and infections in the mother’s body are common causes for infant brain damages.  Various disabilities and psychological problems of varying severity are attributable to infant brain damage. 


Oxygen Deprivation


Asphyxia is also known as Oxygen Deprivation which occurs in about 4 of every 1,000 9-month term births.  Premature babies are at a higher risk for Oxygen Deprivation.  Infants begin to breathe on their own shortly after delivery.  Several minutes of oxygen deprivation can lead to permanent brain damage and ailments such as cerebral palsy, autism, attention deficit hyper-activity disorder, and impaired vision. 


Umbilical cord problems, problems with the mother’s blood pressure, constricted airways are several reasons why infants are deprived of sufficient oxygen.  If the doctor is properly monitoring for fetal stress, these problems can be corrected.  In oxygen deprivation, the first state of injury involves damage to the brain cells which occur within the first few minutes due to lack of blood flow and oxygen.  The second stage of the injury, occurs after the blood flow and the oxygen is restored.  This second stage injury is called Reperfusion.  Infants with moderate oxygen deprivation normally have complete recoveries if they are given the proper medical assistance.  If the baby was to be deprived of oxygen for a longer period of time, they are likely to suffer permanent brain damage. 


Physical Trauma


Many medical mistakes can occur during labor and delivery.  Physical trauma may lead to infant brain damage.  For example, if birth assisting tools are not properly used, it may lead to brain damage due to improper placement of these tools, such as forceps or vacuums on the infant’s head.  If the delivery is performed to quickly or rapidly, physical trauma can also occur. 


Infections in the mother


As soon as possible during pregnancy, it is important for doctors to detect any maternal infections.  Infections such as syphilis, herpes and rubella, may lead to brain damage.   Maternal infections may also be a cause for developing childhood epilepsy, cognitive problems, and schizophrenia.  Symptoms of infant brain are as follows:  abnormal temperament, physical appearance, delays in development.




Placenta Previa occurs as a pregnancy problem because the placenta blocks the cervix.  Soon after pregnancy, the placenta forms on the inside wall of the uterus.  During the pregnancy, the placenta gives the baby food and oxygen.  When the placenta partly or completely covers the cervix, which is the opening of the uterus, Placenta Previa occurs.  The baby passes from the uterus into the cervix and thru the birth canal during a normal vaginal delivery.  Under normal conditions, the placenta attaches on the top of the uterus away from the cervix.

Who is at risk?

Placenta Previa happens approximately 1 out of every 200 pregnancies.  A mother might be more likely to develop Placenta Previa if the following occurs:

               1.            The mother is pregnant with more than one baby

               2.            The mother has had a C-section before

               3.            Have had other types of surgeries on the uterus

               4.            Have been pregnant before

               5.            35 years or older

               6.            Smoked cigarettes or used cocaine


The symptoms of Placenta Previa


Possibly, you will not know that you have Placenta Previa until your doctor detects it on a routine ultrasound.  The most common sign is a bright red bleeding from the vagina during the second half of the pregnancy.  The bleeding can range from light to heavy and is quite often painless.  Unfortunately, some women also have contractions with the bleeding. 


Know when to contact your doctor


If you are bleeding during the second or third trimester, make an appointment with your doctor.  If it is very severe, immediately go to the hospital.



Dangers Causing Motorcycle Accidents


Motorcycle riders always state that riding a motorcycle is a fantastic adventure.  Although it’s a fantastic adventure, motorcyclists encounter many dangers on the road.


Motorcycle Dangers


Since motorcycles only have two wheels and do not enclose the rider as in an automobile, motorcycles are much smaller and lighter than cars.  When there is an accident, a motorcyclist normally suffers serious injuries compared to car accidents.  More than likely, as a result of a motorcycle accident, there is death or serious bodily injury.  Usually there are 35 times more deaths as a result of motorcycle accidents when compared to car accidents.


Motorcycles have less visibility than cars.  Since motorcycles are much smaller than cars and more difficult to see on or off the roads, this poses a high risk for motorcycle accidents.  Road hazards are debris, uneven road surfaces, small objects and wet pavement can readily cause a motorcycle accident.  The motorcycle rider has no barrier to the road.  Car passengers are enclosed and well protected.  Motorcyclist do not have seatbelts or airbags.


Less Stabilities


Cars have four wheels and are quite stables.  Motorcyclist have two wheels and are very unstable.  Motorcycle accident occur frequently with emergency stopping and swerving.  Additionally, a front wheel can wobble at high rates of speed.  Riding a motorcycle has a high skill level.  Riding a motorcycle demands more skills than driving an automobile.  Inexperienced motorcyclist account for a high rate of deaths in motorcycle accidents.




Should You Trust Your Doctor?


Normally, the majority of people have faith in their doctors.  Although some doctors can be experts in their particular medical fields, they too can make errors.  generally speaking, these errors consist of lack of treatment or the incorrect treatment. 


The distinctions between medical misdiagnoses and failure to treat.  Doctors can be held liable if they fail or delay in diagnosing a medical disorder which results in injury or diseased progression.  Most doctors use differential diagnosis.  The diagnose the patient’s ailments based upon the symptoms. 


If a reasonably well trained doctor under certain circumstances would have considered as potential causes the patient’s symptoms determine whether or not there is misdiagnosis for medical malpractice.  If the doctor neglected to include the claimant’s correct diagnosis in the differential diagnosis list, or listed it but failed to rule it out with additional testing, then the doctor is more than likely guilty of medical malpractice.


Failure to Treat and Incorrect Treatment


If a patient were treated for a medical condition which the patient did not have, then the treatment or medication may cause more harm to him.  Additionally, this would be more harm caused by the illness that was untreated.  Erroneous treatment more than likely happens of consequence of misdiagnosis. The physician who properly diagnosed the medical condition may, however, be liable because the doctor failed to properly treat it.  Negligence could also occur because the doctor is attempting to treat the condition with a unique treatment which fails when a more conventional treatment would have been successful. 





18-wheel Truck Accident Statistics


Because of the huge sizes and the large weights carried by trucks, they can cause serious damage and death if they are involved in an accident.  There are slightly more than 2 million 1-wheelers in the United States.   Approximately 98% of 18-wheeler accidents cause one death.  $8 million annually is spent for fatal 18-wheeler accidents.  $15.1 billion which is the cost involving the loss of quality of life.  There are 2.3 deaths and 60.5 injuries caused by tractor trailers for every 100 million miles driven on U.S. highways. 

Approximately 59,150.00 is the average cost for an 18-wheeler accident.  Approximately 90% of all 18-wheeler accidents is caused or aggravated by human error.  Approximately 75% of 18-wheeler accidents are caused by the drivers of automobiles rather than the driver of the 18-wheeler. 

Driver fatigue causes approximately 30% of all 18-wheeler accidents.


Truck accident injury statistics


Approximately 22% of all truck accident result in injuries.  Approximately 70% of all truck accidents, there are no injuries or death, only property damage.  Approximately 130,000 individuals are injured each year in truck accidents.






Nerve damage because of surgical mistakes.  Surgical mistakes, which cause nerve damage, consist of the surgeons physical error and an error during administration of anesthesia. 


Surgeon physical error


When does surgical nerve damage occur?  Surgeons must operate in close proximity to nerves.  The surgeons instruments can come into close contact with the nerves and cause damage.   A nerve could be accidentally severed.  Inflammation can be caused because the surgeon’s instrument rubbed against the nerve. 


Errors which occur during the administration of anesthesia


Anesthesia is normally given locally, regionally, and generally.  Nerve damage could result if anesthesia is administered through a syringe.  The anesthesiologist must be very careful to ensure that the needle does not damage a nerve.  Regional anesthesia normally involves injecting a needle into the spinal column where there are a large number of nerves.  If the injection in the spinal column is not done correctly, it can cause severe nerve damage.  If not done properly, general anesthesia can also cause nerve damage. 








A heart patient who became blind was awarded a $6.8M verdict by a Dallas jury. 


A $6,844,543 verdict against the heart hospital Baylor Plano, which allowed a heart patient to become permanently blind from the complication of open heart surgery.  The last offer to settle was $4.4M and the last offer was $750,000 by the hospital attorneys. 


Mr. Fortner, 50, who was a school maintenance supervisor, had open heart surgery at Heart Hospital.  Approximately one day after the surgery, he slowly lost his vision.  After two days, he was completely blind after the surgery.  Nurses neglected to accurately report what was happening to Mr. Fortner’s vision. When they did report the vision problem to the critical care doctor, he neglected to consult with an ophthalmologist.  The critical cares doctors mistakenly thought that anesthesia or medication are what caused Fortner’s eye vision problems.  When they finally called an ophthalmologist, it was too late and Mr. Fortner was already permanently blind.  He suffered an anterior ischemic stroke of the optic nerves which resulted in the combination of blood loss and anemia during the surgery.  If he had been properly treated for the blindness, he could have kept his eye sight. 





$9.1M medical malpractice verdict for leg amputation after broken ankle


The patient was a public safety dispatcher for the City of Tonawanda, New York.  One day he fell on steps while he was on route to work.    A physician treated him for an ankle fracture that caused pain on the side of his foot near his small toe.  Approximately after one year of treatment, the patient selected another physician.  The defendant physician amputated the man’s little toe which caused him to suffer an infection.  The defendant physician then amputated the man’s fourth toe which caused the patient severe pain.  Subsequently, the patient had his leg amputated below the knee.  During the course of the medical treatment by the medical malpractice defendant physician, the patient had 12 surgical procedures.


A post-surgical infection following the below the knee amputation caused an above the knee amputation to be performed by another physician. 


The man file his medical malpractice lawsuit against the defendant physician and the subsequent physicians under medical malpractice that treated him. 


Trial Results


The jury returned a verdict in favor of the medical malpractice claimant in the amount of $9.1M, which included $2.8M for economic losses, past and future medical expenses and loss wages, $6M for non-economic damages, $2M for past pain and suffering and $350,000 to the Plaintiff’s ex-wife for lost services. 






Preventing 18-wheeler Accidents


Many 18-wheeler accidents can be prevented if one follows these recommendations: 


               1.            Be aware of your blind spots

               2.            Be aware of all 18-wheelers around you at all times, especially when

                              changing lanes or passing an 18-wheeler

               3.            Maintain your car.  Make sure that your vehicle is properly maintained.

               4.            It is necessary to have your brakes repaired. 

               5.            Never drive under the influence.  Do no drink and drive or take medication

                              which will make you drowsy while driving.  If you are too tired, pull over

                              off the road and rest.

               6.            Keep a safe distance.  Never follow an 18-wheeler too closely.

               7.            Remember that 18-wheelers take much more time to stop than automobiles.






What to do and things not to do after an 18-wheeler accident.


Things to do after the accident


1.            Immediately call 9-1-1 and be certain that a police officer comes to the accident scene and writes a report. 

2.            Obtain photographs or video of the accident site. 

3.            Obtain as much information at the scene as possible.

4.            Obtain the names and addresses of any witnesses and contact information.

5.            Obtain as much information as you can while at the scene.

6.            Seek medical treatment.

7.            Comply with the doctor’s orders.

8.            Concentrate on your recovery to mitigate your damages. 

9.            Bring your car to a repair shop to obtain estimates.

10.         Inquire about your attorney’s reputation for handling 18-wheeler accidents.



Things NOT to do after an 18-wheeler accident


1.            Do not give a recorded statement to the adjuster, before being released by your doctor, attempting to settle your claim.

               2.            Be certain that your future medical bills are accounted for.

               3.            Do not avoid seeing the doctor.

               4.            Do not wait to hire an attorney who is experienced with truck accidents.

               5.            Do not wait until the statute of limitations has expired





The teenager complained of intermittent nausea and episodes of vomiting.  The pediatrician diagnosed the teenager with having symptoms of migraine and told her to return if the symptoms continued. 


On April 27, 2016, the teenager awoke with continuing symptoms.  She returned to see the pediatrician.  She complained of a pounding headache that morning and now she had numbness in the tongue.  The pediatrician diagnosed the teenager as suffering from migraine and sinusitis and prescribed anti-nausea medications without ordering further diagnostic testing. 


On May 1, 2016, the teenager awoke with a severe headache and nausea.  She had vomited for several hours and she went to the Defendant hospital emergency department.  The emergency room physician documented that no imaging had been conducted of the teenager for her headaches and prescribed medication to alleviate her symptoms.  The emergency room physician recommended an MRI to be performed on an outpatient basis but failed to order a CT scan to be completed on this visit.  The medical malpractice lawsuit further alleges that if the pediatrician in the emergency room on the same day examined the teenager who failed to follow verbal commands.  The pediatrician attributed this to the medication.  The pediatrician recommended the teenager be kept in the emergency room for observation.  However, the pediatrician did not order a brain CT scan.  The emergency room physician returned to reevaluate the teenager, she did not respond to verbal stimulation or attempts at shaking her.  The physician still did not order an emergency CT scan and assumed that the teenager was exaggerating her symptoms.  The physician admitted the teenager for observation and ordered medication, IV fluids, but did not order a CT scan.  


When the teenager arrived to the hospital’s pediatric  floor, the nurses noted she had rapid respiration, swollen eyes, and dry blood in her nose.  Finally, the physician ordered a CT scan which showed a large brain tumor.  The neurosurgeon drained the fluid that built up on her brain to relieve the pressure but the prognosis by that time was poor. 


The teenager was transferred to another hospital where the tumor was removed during emergency surgery.  Unfortunately, she never did regain consciousness and was declared brain dead several days thereafter.  The teenager then died. 





A Florida Appellate Court refuses to enforce Nursing Home Arbitration Agreement

On January 8, 2015, a male patient was discharged from a Florida hospital.  The man was admitted to the Defendant nursing home facility.  the patient’s daughter, on the following day, signed an agreement prepared by the nursing home.  This agreement contained an optional arbitration agreement that waived the resident’s right to a trial by jury and agreed to finding arbitration.


On January 11, 2015, the resident suffered a severe aspirational event at the Defendant nursing home.  He was transported to a local hospital and never returned to the nursing home.  Subsequently, the resident’s daughter obtained a Power of Attorney from her father and filed a suit on his behalf against the Defendant nursing home.  She is the same daughter who signed the admission document that contained the arbitration provisions.


In the lawsuit, she claimed that her father’s hospitalization and injuries were caused by the Defendant nursing home’s negligent care and treatment.  The Defendant nursing home, in response, filed to compel arbitration, being that the resident gave verbal and written consent to his daughter to sign the admission agreement containing the arbitration agreement on his behalf.  The Defendant nursing home argued that the resident had to resolve all his claims against the Defendant nursing home using arbitration. 


The Trial Court, after conducting an evidentiary hearing, denied the nursing home’s motion to enforce the arbitration agreement.  The Court held that the binding agreement for arbitration had not been entered by the resident or his daughter on his behalf.  The nursing home appealed.


Appellate Court Decision


The elements considered by the Appellate Court under the revised Florida Arbitration Code when ruling on a motion to compel arbitration:


               1.            Whether a valid written agreement to arbitration exists

               2.            Whether an arbitrable issue exists

               3.            Whether the right to arbitration was waived


In deciding the case, the Appellate Court said that the first element was an issue and the Defendant nursing home had the burden of establishing an enforceable written agreement to arbitrate.


The Appellate Court stated that the Defendant nursing home produced evidence suggesting the daughter was acting as her father’s agent when she signed the admission agreement.  It was also evidenced before the Court that 1) the resident did not sign the agreement, 2) the daughter was not authorized nor did the father give her consent to execute this agreement on his behalf, and 3) the daughter specifically advised the Defendant nursing home that she had no authority to sign the documents on behalf of her father, and 4) the nursing home’s Director of Admissions had no independent recollection of either the resident or the execution of the Admission Agreement.


The Appellate Court ruled that the Trial Court found that the Admission Agreement was not explained to the residence nor was his consent requested and that no legal authority had been given by him to his daughter to make decision regarding arbitration.  There was no apparent or implied agency when there was no representation of authority by the principal.  The Appellate Court found that there was sufficient evidence to support the lower court’s ruling that there was no binding Arbitration Agreement.






What knee is the correct one?


Elective knee arthroscopic surgery for a torn meniscus was done on a 50 year old patient.  Before the surgery began, the patient said, and the physician documented, that both knees were symptomatic with menial joint pain, but the right side was worse.  X-rays showed early signs of osteoarthritis with mild joint space narrowing in both knees.   Finally an MRI showed that the right knee had a medial meniscus tear.  Arthroscopic treatment was recommended by the surgeon because of the nature and the persistence of the symptoms.  Finally, it was noted that the patient was satisfied with the results of the right knee operation, possibly the patient would want left knee arthroscopy and it would happen several weeks thereafter.


Records showed that the knee operation was performed at the hospital where the surgeon had several similar operations scheduled that day.  The right knee was marked by the surgeon before the patient was wheeled into the operating room.  The mark was off to the side, just above the knee.  The circulating nurse placed and prepped the knee appropriately after which the scrub nurse the physician’s assistance draped it per the standard protocol.   Next, the surgeon scrubbed and a time out procedure was done according to the records whereby all parties verbally agreed on the proper side to be operated on. 


The surgeon trimmed away the torn piece of the degenerative medial meniscus.  When the surgeon was shaving some of the chondrolytic changes on the medial femoral condyle, the circulating nurse found that the team was operating on the left leg.  After looking under the drape, they saw the mark on the right knee.  Unfortunately, by this time the arthroscopy was complete and the surgeon informed the family of the error and asked if they wished for him to address the correct right side.  The family refused and the patient subsequently filed suit for wrong-sided surgery.


The jury awarded a verdict of $25,000 and apportioned culpability as:  the surgeon was 50% at fault, the hospital 40% at fault, and the anesthesiologist 10% at fault.  Before the trial, the hospital and the anesthesiologist settled for an amount in excess of $25,000. 






As the United States population ages, hip replacement surgery is becoming quite common place, but it does entail risk.  A common risk from this type of surgery is heart attack or stroke occurring during the procedure.  Breathing problems can also occur after the surgery, as well as post-operative infections and post-operative falls.   Hip replacement surgery risks include allergic reaction to the artificial joint, breaking down of the new joint over time due to wear and tear, excessive bleeding during the surgery, infection in the new joint, blood clots during or soon after the surgery is performed, and weakness and/or stiffness in the new joint. 


If the doctor has deviated from the standard of care, he might have committed medical malpractice.  This includes providing inappropriate care as well as failure to provide care when needed. 


When does medical malpractice occur in hip replacement?


A hip replacement expert must review your records and provide an opinion as to whether the surgery was done improperly and the surgeon was negligent.  If a medical expert is not able to say that the doctor deviated from the standard of care, you might not be able to proceed with your lawsuit against the surgeon.  The Plaintiff in a medical malpractice lawsuit must prove that there was medical negligence which is testified to by a medical expert and medical witness.  When the expert renders an opinion, he will consider the following:


               1.            Your complaints

               2.            Your doctor’s objective medical findings

               3.            Your medical condition pre-surgery

               4.            Your doctor’s experience in performing joint replacement surgery

               5.            What the medical text books say concerning hip replacement surgery

               6.            What the doctor explained to you about the risks and benefits of the surgery







Nowadays, we share the roads with 18-wheeler trucks.  Because of the large size and the amount of weight carried by 18-wheelers and blind spots, there are more risks involving 18-wheeler accident than with regular automobiles. 


The following are some of the common causes for 18-wheeler accidents:


1.            Driving under the influence.  Unfortunately, 18-wheeler drivers are often driving the influence of illegal drugs, prescription drugs or alcohol, which impair their ability to safely drive an 18-wheeler.  These drivers place other motorists at serious risk for injury or death


2.            Minor Traffic Violations.  Frequently, it is thought that minor traffic violations, such as tailgating, speeding and failure to obey traffic signals are minor in nature.  These minor traffic violations become major when it involves an 18-wheeler truck accident.  

18-wheelers cannot stop as quickly as an automobile.   If a truck is tailgating the automobile in front of him and the automobile must brake quickly, more than likely an accident will occur. 


3.            Excessive Schedule Expectations.  Truck drivers often operate on very tight delivery schedules.  Frequently, these drivers are encouraged to drive fast to make up for lost time.  Additionally, the drivers could have excess driving hours causing extreme fatigue which can lead to an 18-wheeler accident.  This can lead to improper decision making or falling asleep at the wheel. 


4.            Distracted drivers.  Truck drivers use their cellphones for talking or texting.  Often, they use their cellphone to look up an address while driving and this can cause the driver to not look at the road and cause an accident.  Whenever a driver’s attention is averted from the road, this creates an incredible risk for a very severe accident.


5.            Jack-knifing.   When a trailer, which is being pulled by a truck, skids forward the truck can fold which is causing a jack-knife.  This can be caused due to faulty equipment, poor road conditions, or improper braking techniques.






Some patients may sue for malpractice because of surgical errors.  In order for a patient to sue for medical malpractice, the patient must prove they have a patient-doctor relationship.  Additionally, they must prove that the doctor was deviated from the standard of care for the area.  During the time of the surgery, the patient must also prove that the doctor caused them injuries.


The surgeon might be liable for medical malpractice if he fails to give the patient quality care.  In order to show that the patient did not receive the accepted standard of care requires expert testimony to show that the doctor deviated from the proper care. 


What are spinal fusion surgeries?


Hardware is placed in the spine to put the spine in position.  This type of surgery is done as treatment for fractures, curvatures and other back problems.  Other types of spinal surgery malpractice consists of surgeries which were unnecessary, hardware was misplaced and procedures resulted in infections.  Spinal fusion is used to stabilize, strengthen and reduce pain in the spine.  According to the Mayo Clinic, common risk of spinal fusion include the following:


               1.            Infection

               2.            Poor wound healing

               3.            Bleeding

               4.            Blood clots

               5.            Injury to blood vessels or nerves in and around the spine

               6.            Pain at the bone graft sight

  7.            Accelerated wear and tear on the remaining vertebra and the

                 possibility of more chronic pain


Spinal fusion medical malpractice errors consist of the following:


1.            Negligently performing the procedure and/or failing to

               recognize the complication

2.            Recommending the procedure when it is not advised

3.            Failing to fully inform the patient of all the risks before the surgery







Approximately 10% of every child born with Cerebral Palsy, is attributable to  medical malpractice.  Since a doctor or someone on the medical staff made a mistake, 1 out of every 10 children has Cerebral Palsy because of a medical mistake.


What causes Cerebral Palsy?


When the brain has suffered an injury usually before or after delivery, Cerebral Palsy is caused.   Cerebral Palsy causes abnormal signals from the brain to the central nervous system.  Depending on the severity of the brain injury, children can be crippled or paralyzed from use of certain muscles.  When there is an abnormally prolonged delivery or a very difficult labor, Cerebral Palsy can be caused.  Occasionally, it is caused because something has occurred with the umbilical cord cutting off the oxygen from the baby thus causing a brain injury due to oxygen deprivation.   How severe the disability is normally is dependent on the amount of time the baby suffered the injury. 


Are these injuries preventable?


Whether a mother has infections or other complications during child birth should be diagnosed by doctors.  If an infant is too large to be delivered vaginally, doctors should be able to assess the baby’s size before birth and use a C-section.  For instance, physicians should be able to diagnose an umbilical cord prolapse which occurs when the umbilical cord come out before the infant.  Physicians are required to make quick decisions when an infant shows signs of distress whether before, during, or shortly after birth which would save the mother and baby from further complications.  If a baby is delivered and has had oxygen deprivation, the doctor can still prevent the Cerebral Palsy.  Time is very crucial because every second that passes without the infant having oxygen only increases the risk for Cerebral Palsy.  A physician can place the baby in a decompression chamber full of 100% oxygen which helps oxygenate all the tissue.  Thus it reduces trauma to the brain.  Normally, if the baby has been deprived of oxygen and the physician does not use the oxygen therapy hyperbaric therapy, then the Cerebral Palsy is more likely the doctor’s fault. 


Should a parent file a Cerebral Palsy lawsuit?


A child with Cerebral Palsy has very high medical expenses.  When a Plaintiff wins a Cerebral Palsy lawsuit against a physician, they can be compensated for the medical treatments necessary for the caring of the child with Cerebral Palsy.  Furthermore, the child can be compensated for in-home-care, punitive damages, pain, suffering and mental anguish and lost wages. 






A bone fracture might occur because the doctor was too rough during delivery or incorrectly used the delivery instruments.  Bone fractures may heal by themselves but in more severe instances babies may need special medical equipment to properly have the bone healed.  For several months, the family might incur substantial medical expenses.  In order to recoup these medical expenses, families may file a birth injury lawsuit against the physician. 


Treating bone injuries


Broken bones in babies normally occur in the collar bone.  The collar bone might be fractured during a breach delivery in which the child starts crowning feet and bottom first rather than head first.  In this situation, the medical team must act quickly to ensure that the baby receives oxygen.  When acting too quickly, the doctor uses medical devices to deliver the baby.  If these instruments have excessive force, the baby may sustain a fracture.  Skulls, legs, and arms are the areas most fractured.   It is very difficult to diagnose a fractured bone on a baby.  Doctors use x-rays, MRI’s or CT scans to detect bone fractures.  1 in every 1000 deliveries, a child suffers a fractured bone.  Sometimes, the bones will heal without medical assistance.  But, there are other fractures that never heal properly and might stunt growth, impair strength, and limit the child’s range of motion during the remainder of his life.  






Spina Bifida is a congenital condition in which the embryonic neuro tube, this is a tissue that becomes the spinal cord and brain, does not properly close before birth.  The most common type of Spina Bifida causes the malformation close to the lower back.   The physician may have to perform surgery to close the area if the baby has this type of birth injury.  According to medical experts, taking Folic Acid during the pregnancy can reduce the change of Spina Bifida by over 70%.  


Spina Bifida Diagnosis


Using an ultrasound enables physicians to diagnose Spina Bifida.  The lemon sign which would be shown on the ultrasound indicates that the concave frontal bones appear flattened or pulled.  Spina Bifida can also be detected by radiologists and they can determine when the ventricles have become dilated. 


Spina Bifida complications


Babies shall experience different degrees of disability according to the level lesion.  The higher the level of the lesion, the more problems the baby will more than likely have.  Common disabilities attributable to Spina Bifida include the following:

               1.            Attention problems

               2.            Impaired cognitive function

               3.            Abnormal eye movement

               4.            Bowel and bladder problems

               5.            Orthopedic problems such as club feet

               6.            Hip injuries and scoliosis

               7.            Weakness or paralysis of the legs






Pharmacists have a duty of care to properly fill the prescriptions and maintain a record of all medications.  If the pharmacist violates the standard of care, patients can be seriously injured.  When the pharmacist breaches the standard of care, the pharmacist should be held accountable to compensate the patient.   Attorney Tim Chelpaty is skilled at handling pharmacy errors and to compensate the patient for the damages.


Pharmacy Errors are a major problem in the United States.  According to the Food and Drug Administration, there were approximately 1.3 million people injured annually because of medication mistakes.  Data bases containing information about patients are maintained by pharmacies.  Pharmacists should use the data base to be certain that the prescriptions are properly filled considering other drugs which the patient might be taking.  The data bases also alert the pharmacists about any dangerous situations concerning several medications. 


Prescription Errors which have occurred are as follows:


 1)  Prescription mistakes causing death 

 2) Poisoning because of prescription errors

 3) Prescription errors causing toxicity

 4) Pharmacy errors attributable to under dose

 5) Pharmacy errors contributing because of overdose. 


Investigating Pharmacy Errors/Negligence


We use expert witnesses to review all of the pharmacy’s documents and maintenance records, as well as the quality control procedures used by the pharmacy.  We identify deviations from the standard of care exposed by the negligence of the pharmacy management.






Brain damage caused at birth is medical negligence.  Parents of a child who suffers brain damage at birth, fear for the future and health of the baby.  Severe hemorrhage normally is the result of physical brain trauma.  Also, when the brain is deprived of oxygen, it can cause catastrophic brain injury.  These two types of injuries are the biggest causes of injuries to an infant. 


When there is intracranial hemorrhage, there is bleeding in the baby’s brain which is caused by the rupture of a blood vessel within the skull.  Acute bleeding in the infant’s brain cause result in a deformity of the infant’s skull because of a rough labor and delivery.  Depravation of oxygen can cause brain damage.   To determine if a rough vaginal delivery or lack of oxygen during birth caused the child to suffer a severe brain injury, the parents must obtain the medical records.  In very premature infant births, bleeding in the brain is more common.  When this happens, there is a less amount of oxygen in the blood and inadequate blood flow.


Subdural hemorrhages happen between the outer and inner layers of the brain.  With subdural hemorrhages, newborns may develop seizures.  Subarachnoid hemorrhages occur below the inner most of the two membranes that cover the brain.   Subarachnoid hemorrhages usually occur in full term newborns.  Intraventricular hemorrhages occur in the brains ventricles.  




Insurance companies spend approximately $80,000 to defend a cardiologist in a medical malpractice payment.  Cardiologists have a significant economic incentive to do what is best for the patient while attempting to avoid possible medical malpractice lawsuits. 


Fact and Medical Malpractice


Unfortunately, cardiologists sometimes believe that a patient is suffering from heartburn reflux or some other gastrointestinal complaint.  Heart attacks are misdiagnosed quiet often by the medical staff as well.   Heart attacks rank as one of the top 5 diseases for medical malpractice jury awards.  Medical malpractice awards for heart attacks typically alleged mismanaged diagnostic methods, medical tests, or misdiagnosis.   Diagnostic errors are one of the main causes of loss in cardiology medical malpractice.  Cardiologists could reduce the loss by ruling out conditions carrying the greatest risk of misdiagnosis.  This can be done by good documentation, good physician communication, and proper diagnostic tests.  Changing diagnosis according to the indications available would be keys to good proper conclusions. 


Tips to prevent cardiologist medical errors:


               Make sure your cardiologist knows all your medications

               The cardiologist should know all allergies

               The cardiologist should write the correct prescription for the patient

               The cardiologist should answer all questions or concerns

               The cardiologist should learn about the patients conditions from all available resources

               The cardiologist should make sure they have all the correct health information

               The cardiologist should make sure the primary care doctor is coordinating the treatment





Blockage of the pulmonary artery is a pulmonary embolism.  Usually, it is caused by a blood clot.  The size of the blockage and the speed of the diagnosis and treatment determine the severity of the pulmonary embolism.  A substantial pulmonary embolism can block the flow of blood to the lungs and it can even cause death.  Misdiagnosis of pulmonary embolism is one of the most commonly encountered medical problems.  Pulmonary embolism misdiagnosis is a significant problem because the damage caused by the pulmonary embolism enlarges with time.  Catastrophic damage can occur when a doctor fails to properly diagnosis pulmonary embolism. 


The following are common symptoms of pulmonary embolism:


               *Calf or thigh swelling

               *Calf or thigh pain


               *Shortness of breath

               *Sharp pain when inhaling


Doctors generally consider the pulmonary embolism symptoms.  But, the symptoms by themselves are insufficient to diagnose pulmonary embolism because other ailments have similar symptoms including heart attack.  Patients with deep vein thrombosis, which is a common cause, are 32% asymptomatic.  Usually, the doctor performs diagnostic tests to determine if a patient has suffered a pulmonary embolism.  The tests commonly used are D-dimer, CT-pa, V/Q scan, pulmonary angiogram and lower extremity venous ultrasound.  The results of these tests and the symptoms mentioned above or normally sufficient for the doctor to diagnose pulmonary embolism.  Since other conditions have the same symptoms as pulmonary embolism, misdiagnosis is quite easy.  Misdiagnosis normally consists of the following:  lung cancer, pneumonia, and heart attack.   The doctor performs a differential diagnosis to determine possible medical conditions that can be causing the symptoms.  Test results from the above-mentioned tests, along with the symptoms, can be ruled out because they don’t match the test results.  A doctor can be legally liable for medical malpractice if it is shown that the doctor deviated from acceptable medical standard of care when doing the differential diagnosis.  




What is a Wrongful Death Lawsuit?


The lawsuit for Wrongful Death is a claim usually initiated by the surviving family members or loved ones of the decedent who was killed as a result of someone’s negligent conduct.  Also, the result can occur as the consequence of an intentional act.  The lawsuit is normally filed against the person, persons, or entity which were responsible for the death.  

Dealing with the death of a family member, can be the most difficult period of time in your life.  When the family members was attributable to another parties wrongdoing or negligence, usually the grieving process is increased by these negligent acts.  You might have the right to file a wrongful death lawsuit.  A wrongful death statute entitles the surviving family heirs to file a wrongful death lawsuit because of another parties negligence causing the death of the loved one.


Wrongful death compensatory damages consist of the following:  


          1) Funeral expenses
          2) Medical expenses
          3) Damage award will include interest from the date of the decedent’s death
          4) Loss of parental guidance
          5) Loss of income
          6) Potential future earnings.  


How Wrongful Deaths Occur


Wrongful Death occurs when a person is killed because of the misconduct or negligence of another party.  Heirs who were dependent on the decedent may be entitled to monetary damages.  Wrongful deaths can occur in the following ways: 


           1) Automobile accidents
           2) Medical malpractice
           3) Premises liability
           4) 18 wheeler accidents
           5) Motorcycle accidents.   


You will need a Wrongful Death attorney.  Because of our experience and resources, we have the ability to handle wrongful death cases and obtain adequate compensation.  



What should you do if you’ve been involved in an automobile accident?  Below are several things to do after motor vehicle accident.



The state law requires that you stay at the scene of an accident. 
If other people in the vehicles have sustained injuries and you leave the scene, you can be charged with criminal penalties. 




Be certain that everyone involved in the accident is alright. 
If medical attention is needed, please get medical assistance. 



If there is physical injuries or substantial property damage, call the police. 
Ask the police to file a police report. 



Obtain insurance information from the other driver(s), license plate number(s), Driver’s license number(s), addresses, and names. You should not admit guilt unintentionally or unnecessarily. 

Obtain the names, addresses, and phone numbers of any witnesses if possible. 
Ask the witness what he or she saw. 


Tell your insurance company that you have been involved in an accident.  
You are required to cooperate and tell them the truth.  If the insurance company finds out that you lied about an accident, they could possibly deny coverage for the accident.



Obtain list of medical professionals whom you seek for treatment. Obtain list of what medical treatment and medications that you receive. It is necessary to obtain copies of all medical reports and bills in order to document you medical expenses. 



The photos help document the amount of compensation you are to receive for your property damages.  Obtain a copy of the damage evaluation.  Receive a copy of your insurance company damage appraisal.   If you are not satisfied with the property damage, we can help you. 

Don’t discuss the accident with anyone unless you advise your lawyer.  If we represent you, you should not talk to anybody about the accident.  Please tell them to communicate with us. 



Insurance Bad Faith occurs quite frequently.  When the insurance company denies the insured’s right to receive the insurance benefits as stated in the contract, there might be Bad Faith.

Common examples of Bad Faith are as follows:  An insurance company denies payment to an insured which can consist of inadequate investigations by the insurance company, coercive tactics, or acts of claims adjusters.  


There is stated or implied covenant of Good Faith and Fair Dealing in every contract.  This means that both the insured and insurance company are to act fairly with good faith within the contract.  The insurance carrier is expected to fully compensate the insured in a timely manner.




When an insurance company engages in Bad Faith, this action is called a Tort or a Civil Wrong.  The insured has a right to file a lawsuit against the insurance company seeking compensatory damages for money owed and punitive damages.  In order to punish the insurance company for its misconduct, let a Bad Faith attorney help.  Bad Faith claims are complex and they require expertise of a lawyer who has experience with these types of cases, and will thoroughly examine your claim and fight for the maximum compensation.  




Remember to submit in writing problems with your insurance carrier.  Remember also, include all communications with the adjuster and the claim itself.  Maintain written notes if you speak with someone by telephone with the insurance company.  Be certain to include the person’s name and the date of the note.  



1.     Put your complaint in writing and send it to the insurance company. 
2.    Know who the claim adjuster is and be certain to reduce all communications to writing. 
3.    Obtain the name of the claims adjuster supervisor and send him/her a detailed letter. 



If the policy provision can be interpreted more than one way and your interpretation is reasonable, the insurer is usually bound by the interpretation.  The policy is interpreted against the insurance company because it wrote the policy.  



We can sue your insurance company.  Attorneys such as myself can handle Insurance Bad Faith Claims on a contingency fee basis.  This fee arrangement allows you to pursue your case.  The attorney fees are based on the ultimate recovery or settlement. 




As soon as possible after the slip and fall, you should obtain medical treatment.  Prompt medical treatment will show that you were injured and will help the credibility of your claim.  You should inspect the area where you fell.  You should be able to determine the cause of the fall.  If possible, immediately obtain pictures of what caused you to fall.  


Next identify witnesses.  Obtain the names, addresses, and phone numbers of anyone who witnessed your fall.  Even if someone did not witness the fall, they could describe the conditions of the floor and your pain.  




You should complete the accident if the slip and fall occurred in a business.  If possible, you should request a copy of the accident report.  Do not give the insurance company a recorded statement.   If you give a recorded statement without the assistance of an attorney, you might say something to minimize your injuries or liability.  




You should not use a social media.  Insurance companies frequently look at social media to determine whether or not they could use anything you posted to minimize your damages and their liability.  The insurance companies use the social media to counteract anything you might allege concerning the slip and fall.  




Do not talk to store representatives.  In addition to using insurance claim adjuster investigations, store representatives might call you directly.  You should not talk to store representatives because you might say something that adversely affects the legitimacy of your injuries.  





Under Title 7 of 1964 Civil Rights Act, Sexual Harassment is a form of sex discrimination.  There are many state laws concerning Sexual Harassment.  The most common forms of Sexual Harassment normally consist of creating a hostile work place for women, consisting of sexist remarks.  Additionally, it consists of direct sexual advances.  

You can talk to the offending party in the Sexual Harassment case.  This might be enough to stop the offensive conduct.  If this is ineffective, you must put the offender on notice that his or her conduct is unacceptable.  If the offensive conduct does not stop, employers are responsible for the conduct of their employees.   Additionally, employers have the responsibility to protect employees from sexual harassment. 

Many companies have written procedures concerning how to handle sexual harassment claims.  If your employer has a sexual harassment procedure, you should follow it carefully.  Normally, there is a designated person to whom to report the harassment.  If there is such a person, you should report it to the person responsible for handling sexual harassment claims.  If your employer has no procedure to address the sexual harassment, you should complain to your supervisor.  Also, keep a record of any and all incidents of harassment in your complaints, which include persons, times, dates, and what was said or done.  

If you are unable to settle the harassment complaint, you will need to file with the Equal Employment Opportunity Commission (EEOC).  New Mexico has a Human Rights Bureau which accepts and investigates complaints.   Your claim will be investigated by the governmental agency and will attempt to settle it with negotiations.  If the agency cannot resolve your complaint, the state agency can issue a “Right to Sue” letter.   You can file a civil lawsuit once the government agency issues a “Right to Sue” letter.  If you win the sexual harassment claim in the lawsuit, you might be entitled to attorney fees and court costs, fringe benefits lost, damages due to emotional distress, your employer might need to start policies to stop sexual harassment.  


Call 9-1-1 if the accident is severe.  Call the local police if the accident is severe.   

Next, report the claim to your insurance company as soon as possible.  Provide the insurance company with the following information:  the other driver’s insurance company, including policy number, the phone numbers and address of all people involved, names of all the parties involved, the vehicle license plate numbers, contact information of witnesses, and any photos of damage if available.  The claim process begins with contacting your agents.  Given your insurance agent the other driver’s information and the police accident report concerning how the accident occurred. 

After you file the motorcycle claim, the claims adjuster will tell you whether or not they need to schedule an appointment to inspect the damage to your motorcycle.  






Approximately 4.5 million people are bitten by dogs yearly, resulting in approximately 885,000 requiring medical treatment.  If the owner of the dog knew that the dog had a tendency to bite, the dog owner is liable for the injuries their dog causes.  The owner can also be held liable if they know that their dogs had a propensity to bite.   


Dogs can inflict serious injuries on young children because of the small height.  This normally results in severe facial injuries.  Elective surgery might be necessary for these facial injuries.  Initially, there are psychological injuries suffered by the dog bite victims of traumatic stress disorder.  The homeowners’ insurance normally cover liability arising from dog bites.  $100,000 to$ 300,000 is the average amount of liability in homeowner policies.  


Tim Chelpaty Law Office

121 Wyatt Dr. Suite #2

Las Cruces, NM 88005


Office Hours:
Monday - Friday
9am to 5pm


Las Cruces

Silver City





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