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.


Who Let the Dogs Out?

An attack by a vicious dog can result in severe physical and emotional injuries to the person who was attacked. By statute, the owner of the dog is strictly liable for injuries caused by his or her dog. RSA 466:19. Although frequently referred to as a dog bite statute, a dog owner may be liable for a person’s injuries even if the dog never bites the person.

Further, a landowner may also be liable for injuries caused by a vicious dog. All landowners are under a duty to use reasonable care under all the circumstances in the maintenance and operation of their properties. If a landlord knew or should have known that his tenant kept a vicious dog on the property, then the landlord (and the dog’s owner) may be liable to a person injured by his tenant’s dog.

Wrongful Death Following Propane Explosion

In a tragic case, a woman was killed when her relatively new condominium exploded due to a propane leak in her basement.  The force of the explosion nearly leveled the condominium and all of the gas appliances were destroyed.  Careful examination of the propane system piping revealed two important clues: there was a slight horizontal bend in the external propane gas pipe running into the unit and deformation of the interior pipe thread.  The horizontal bend indicated that the pipe had been struck from an external force.  The Fire Marshal’s investigation revealed that the landscaping company had mowed the day before.  Also, the piping in the house showed a break in the pipe threading at a point that was very thin.

The plaintiff’s liability theory was that, contrary to the State Fire Code, the exterior propane piping was not guarded against strikes and the interior propane piping was improperly threaded, which weakened the pipe and made it more susceptible to cracks from an external force.  Several experts, including a metallurgist, a fire investigator, an engineer and a code expert, were consulted and provided opinions in the case.

The plaintiff estate sued: the condominium developer, the builder, the condominium association, the company that installed the interior propane piping, the company that installed the exterior propane piping, the landscaping company, and the propane supplier.  The plaintiff pleaded a breach of warranty claim against the condominium developer for selling a condominium with a structural defect (the improperly-installed propane system).

A settlement was reached for the family prior to trial.

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.


Vaccine Injury

Most of the time, vaccines are a routine, uneventful part of healthcare.  For certain individuals, however, reactions to the inoculations can cause severe injuries and health conditions.  Adults and children alike can find their lives permanently changed by these serious vaccine injuries.

The National Vaccine Injury Compensation Program (VICP) is a no fault system providing compensation to people injured by vaccines.  The system recognizes that vaccines can lead to serious injuries, and provides monetary compensation for victims.

The vaccine compensation fund is governed by a set of regulations that includes a description of symptoms that occur within a set period of time following different vaccinations.  It is presumed that the adverse symptoms are caused by the vaccination if the symptoms documented in a victim’s medical records meet the stated timeline for the vaccine in question.  Compensation may then be available for all medical treatment, including future medical treatment, pain and suffering and any future loss of earning capacity.  The fund also pays for the victim’s attorney fees.  Compensation is only available if symptoms persist for more than 6 months and the symptoms require medical treatment for the victim.

McDowell & Osburn, PA, has successfully litigated vaccine injuries at the U.S. Court of Federal Claims.  A review of a child’s medical records from before and after a vaccination will likely indicate whether a child or adult may be eligible for compensation for a vaccine injury.  Any claim must be filed within 36 months of the onset of the injurious symptoms.  Attorney Joseph McDowell of our firm is admitted to practice before the Court of Federal Claims.

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.