Federal District Court Decides Motion to Dismiss in Exeter Hospital Contribution Action

On September 4, 2014, the United States District Court for the District of New Hampshire dismissed one of two contribution claims filed by Exeter Hospital based on the lawsuits filed against it by patients infected with Hepatitis C. The patients were infected with Hepatitis C after David Kwiatkowski, a traveling cardiac catheterization technician, had injected himself with syringes of drugs and then replaced those syringes with saline, which in turn were used by patients at Exeter Hospital.

Most of the cases against Exeter Hospital have settled. Exeter Hospital brought a contribution action against a placement agency, Maxim Healthcare Services, Inc., and a certifying agency, the American Registry of Radiologic Technologists (ARRT) seeking contribution for the payments it made to Hepatitis C infected patients. Exeter Hospital alleged that Maxim, who had previously placed Kwiatkowski at hospitals, was aware that Kwiatkowski had been previously fired by a facility. Exeter Hospital also sought contribution from ARRT, alleging that ARRT was aware of the details of an incident occurring prior to the incident at Exeter Hospital, yet it never reported or investigated the incident and permitted Kwiatkowski to work at other hospitals, placing patients of those hospitals at risk.

The Court granted Maxim’s motion to dismiss, finding that although Maxim was aware that Kwiatkowski had been discharged from one of the hospitals at which he was placed, there was no allegation that Maxim was aware of the reasons for that termination.

ARRT also moved to dismiss. However, the Court found that ARRT knew about an incident involving Kwiatkowski misusing drugs yet never reported the incident to the authorities and it permitted him to be placed at other hospitals, which enabled him to remain employed as a traveling cardiac catheterization technician and which placed every patient at such hospitals, including Exeter Hospital, at risk. The Court found that a motion to dismiss was inappropriate because ARRT knew about the incident and, as a certifying agency, had broader duties.


A Trap for the Unwary

The First Circuit Court of Appeals recently dismissed a medical malpractice case because the plaintiffs did not comply with the two year statute of limitations applicable to tort claims against federal employees.  See Sanchez v. United States, ___F.3d ____ (1st Cir. 2014).  However, the physician defendants’ status as federal employees was not readily apparent.  Indeed, the First Circuit acknowledged, “The trap for the unwary into which Mr. Sanchez has fallen arises because doctors who work at facilities that may appear to be nongovernmental may nevertheless be deemed federal employees because of the manner in which their employers receive federal funds.”

Generally, a lawsuit in a state tort claim must be brought within three years of when the negligence occurred.  However, tort claims against the federal government are different.  Claims against the federal government must be first presented to the appropriate federal agency within two years of when the negligence occurred.  In medical malpractice cases, this is the Department of Health and Human Services.  In both state and federal law, the discovery rule may extend these time periods where the injury and its causal connection to the defendants could not be determined until a later time.

In Sanchez, the Court rejected the plaintiffs’ argument that it should toll the limitations period because they did not know that the doctors involved were federal employees.  While the Court agreed that the federal government could do more to publicize or alleviate the “statute of limitations trap,” the Court did not toll the statute of limitations because the plaintiffs did not conduct any inquiry into the doctors’ status.  The Court indicated that the status of the facilities could be obtained by contacting a hotline or by going to the following website: http://bphc.hrsa.gov/ftca/healthcenters/ftcahcdeemedentitysearch.html.

In New Hampshire some of the providers listed on the website as being federally funded such that its doctors may be deemed to be federal employees under the Federal Tort Claims Act include: Manchester Community Health Center, Goodwin Community Health and Families First of Greater Seacoast.

All medical malpractice cases have the potential to involve federal providers depending on whether there is a federally-funded facility involved in the injured patient’s care.  The consequence of not investigating whether a facility is federally-funded is dire and may result in dismissal of the case.  Our office has handled medical malpractice cases under the Federal Tort Claims Act and is keenly aware of the need to comply with federal law relating to claims involving federal employees.


Ropivacaine Overdose was Preventable

On October 25, 2011, the plaintiff, age 53, was recovering from surgery at the defendant hospital.  The surgery was uneventful and he was doing well postoperatively.  The nurse changed the bag of his epidural pain medication, Ropivicaine (Naropin), which was prescribed for 8 mL per hour; the bag was supposed to infuse over the next twelve hours.  However, the nurse mistakenly set the controls and the entire bag was infused in one hour.  Following the overdose, the plaintiff was paralyzed up to his clavicle.  He has regained some sensation and movement but his remaining paralysis is permanent. 

This serious and life-threatening medication error could have easily been prevented had the hospital required nurses to double check and verify high-alert medications administered to patients via an epidural catheter.  Such double checks are well-recognized.  The Joint Commission has required that hospitals use a double check system for over a decade.  Further, medication safety organizations, such as the Institute for Safe Medication Practices, also recommend use of a double check system for medication administration.

Hospitals Must Report Certain Adverse Events

In New Hampshire and other states, hospitals are required to report the occurrance of certain bad outcomes.  In New Hampshire, these egregious medical errors are termed “adverse events.”  Examples of such adverse events include surgery performed on the wrong body part, retention of a foreign object in a patient after surgery, death or serious injury resulting from a medication error and stage 3 or 4 ulcers acquired after admission.

Following the occurrence of the adverse event, the facility must report the adverse event to the Commissioner of the Department of Health and Human Services. A facility that fails to report an adverse event is subject to disciplinary actions and sanctions.  The hospital must also conduct a root cause analysis of the event and implement a corrective action plan to implement the findings of the root cause analysis.

The Department of Health and Human Services publishes the reported adverse events for each hospital on its website.

Medicare calls these types of events “Never Events.”  If a Medicare patient is a victim of a Never Event at a hospital, Medicare will not pay the hospital for the treatment and the hospital is expected to absorb the cost.  The term “Never Event” is derived from the principle that these types of errors should never occur.

$1.5 Million jury verdict to family of deceased 36 year old despite the finding of a medical malpractice screening panel

On June 7, 2013, a Hillsborough County jury found that the defendants, a cardiologist and a cardiology group, were negligent when they failed to timely diagnose and treat coronary artery disease. Bill Landry Jr. passed out several times between April and September of 2004. He had numerous tests done by a neurologist and his PCP to try to determine why he was passing out. These tests were normal. His doctors referred him to the defendant cardiologist and cardiology group several times for a similar work-up to determinine if the reason he was passing out was from a cardiac condition. Without performing any tests, the defendants told him his problem was not cardiac and sent him home. On June 30, 2005, Bill Landry, Jr. was pronounced dead. An autopsy revealed that he died from coronary artery disease.

As in all medical malpractice cases in New Hampshire, this case was heard by a medical malpractice screening panel. The panel unanimously found for the defendants. At trial, the panel findings were entered into evidence, as required by law.

This is the first time in New Hampshire that a plainitff has prevailed at trial with the admission of unanimous unfavorable panel findings.

The jury was instructed that the evidence was not the same at the trial as the evidence before the panel, that the panel hearing is an abbreviated proceeding, that they are not bound by the panel findings and that it is their duty to decide the case based on all the evidence presented at trial.

The jury’s verdict proves that unanimous unfavorable panel findings against the plaintiff does not mean that the case is without merit.

The case was tried by Attorney Joseph McDowell and Attorney Heather Menezes.

Settlement Following Death of a Two-Month Old Infant Due to a Delayed Diagnosis of Bacterial Meningitis

Our office recently settled a case involving the death of a two-month old infant following a delayed diagnosis of bacterial meningitis.

The infant presented to the hospital with signs of a serious bacterial infection, including high fever, grunting, poor feeding, rapid heart rate and rapid breathing rate.  The emergency room doctor ordered blood tests, including a complete blood count (to assess the types of cells in the blood) and a blood culture (to detect bacteria).  The emergency room doctor diagnosed bronchiolitis (a viral infection).  A pediatrician consulted.  His notes indicated that something more was going on, but he provided no treatment. 

Established guidelines called for immediate administration of antibiotic medication and a lumbar puncture.  Early antibiotics are recommended because early treatment is crucial with a serious bacterial infection.  The lumbar puncture would have more quickly diagnosed bacterial meningitis.

Without proper treatment, the infant’s condition quickly deteriorated and she later died of bacterial meningitis.  The plaintiffs’ position was that her death could have been prevented by antibiotics and a lumbar puncture.

During the case, plaintiffs discovered laboratory records that suggested the infant was suffering from a bacterial infection.  These records revealed evidence that was contrary to the understaning of the treating physicians.  The case settled.  

Early Offer Law is Unfair to Injured Patients

The early offer law became effective in our state on January 1, 2013.  This law, which was passed over Governor Lynch’s veto, permits medical providers to make early settlement offers to patients injured by medical negligence that excludes damages that are allowed under the law.  For example, if an injured person elects the early offer system, he or she would give up the right to be compensated for pain and suffering, emotional distress and lost earning capacity; that person’s spouse would give up the right to make a claim for lost services, support and companionship.  The early offer law also requires that the injured patient submit future medical expenses when they are due and the injured patient is then at the mercy of the provider for payment of these expenses. 

The early offer law includes a waiver of rights form.  This waiver may have been included in administrative paperwork signed by the patient and the patient may not even realize he or she has opted in to the system.  A patient considering whether to opt in must be cautious because if one opts in and does not accept the settlement offer, his or her trial rights will be adversely affected. 

The law requires that the medical provider obtain legal counsel for the injured person at the provider’s expense.  Again, caution is advised because the attorney has limited responsibilities. 

Our attorneys are knowledgeable about medical malpractice cases and the early offer law.  There is no charge for an initial consultation.

McDowell and Osburn, PA 603-623-9300