Segal McCambridge Legal Blog

Segal McCambridge Achieves Two Wrongful Death Defense Verdicts In One Week

Two unrelated cases, in two different states, in different areas of the law, both involving charges of wrongful death, recently ended within days of each other with the same result: the jury siding completely with the defense. In both cases, the Segal McCambridge team led its clients through to victory.

The first of the two cases was tried in Illinois. This case involved issues of professional liability in the medical malpractice area. A 76-year-old patient underwent hip revision surgery (replacement of a previously installed artificial hip) at Chicago’s Weiss Memorial Hospital. The patient passed away approximately 48 hours after the surgery was complete. His family brought suit against the Certified Registered Nurse Anesthetist (CRNA) and the hospital, on the theory that the CRNA was an apparent agent of the hospital. The plaintiffs sought $10.6M.

Trial began June 8, 2012, in the courtroom of Judge Thomas Hogan, and concluded June 20. Robert O’Malley and Kimberly Kayiwa of Segal McCambridge represented Weiss Memorial Hospital. The jury delivered a defense verdict after deliberating for less than two hours.

“It is always a difficult road to bring a matter of this complexity to verdict in Cook County,” says Mr. O’Malley. “I attribute our success to the dedication of our trial team, the clarity of our defense message and the good fortune of empaneling an attentive and thoughtful jury.”

The second case was tried in Texas. This case involved products liability issues in the death of a young man who died retrieving golf balls from a water hazard. He worked for a company that removes golf balls from water hazards and re-sells them as used equipment. To retrieve the balls, he used a mechanical breathing device, called a “hookah.” Our client, Gardner Denver, manufactured a compressor that was a component of the device (although almost certainly not an original component).

On a June day in 2009, the young man was found dead in the water. A medical examination concluded that his death was caused by an elevated level of carbon monoxide in his body.

His survivors sued, alleging that the component parts were defective and that each of the three product manufacturers, Gardner Denver and two other companies, had failed to warn. They sought nearly $13M, $6.7M of which represented punitive damages.

But there were other issues with the hookah. It had been heavily used, and parts had worn out and been replaced. As stated before, the Gardner Denver compressor was almost certainly not original. The Honda motor had been replaced shortly before the accident and had been installed improperly. The botched configuration shot exhaust into the compressor.

After a lightning-paced four-and-a-half days of trial in Dallas, the case went to the jury. In their verdict, announced June 25, they found the company’s boss, Dickie Seeders of A Plus Golf Ball Retrieval, 77% responsible and the decedent 23% responsible. No fault was assigned to any of the three manufacturers.

Our team for Gardner Denver consisted of attorneys Timothy Krippner, John LaBoon, Christina Denmark and J.R. Skrabanek, and paralegal April Mitchell.

“We are extremely pleased that the jury confirmed our view that Gardner Denver bore no responsibility for Mr. Logan’s tragic death,” says Mr. Krippner. “We wish the best for the Logan family.”

Currently, reporting requirements under the Medicare Secondary Payer (MSP) Act require claims resolved on or after October 1, 2011 for over $5,000 to be reported to the Centers for Medicare and Medicaid Services (CMS) starting January 1, 2012. In an effort to analyze the impact of the threshold on both funds recovered and costs of compliance, RAND looked at data from auto injuries and medical malpractice claims in a recently published Occasional Paper, “Recovery Under the Medicare Secondary Payer Act: Impact of Reporting Thresholds.” RAND authors Eric Helland and Fred Kipperman concluded that maintaining a reporting threshold for cases resolved, such as $5,000, will have a minimal impact on revenue and significantly relieve reporting burdens. Using auto accidents as an example, and  assuming there is no reimbursement to Medicare from recoveries on claims under the threshold, “retaining the $5,000 reporting threshold would reduce recoveries by 2.4 percent, or $24 million, while reducing the number of claims that must be reported by 43 percent.” As many insurers have implemented procedures to address conditional payments on every claim involving a Medicare recipient, regardless of the reporting threshold, it is possible this reduction in recovery will be even less, with great savings to the insurance industry. As costs are often passed on to consumers, many may benefit should CMS maintain a $5,000 reporting threshold.
The RAND paper may be accessed at http://www.rand.org/pubs/occasional_papers/OP332.html

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From the Chicago Sun-Times

A former Merrillville doctor who's awaiting sentencing for health care fraud has been ordered to pay $13 million in the first of more than 350 malpractice lawsuits against him.

A jury Thursday night in Hammond rendered the judgment against Mark Weinberger, the former Merrillville ear, nose and throat specialist.

The award includes $10 million in punitive damages for the estate of the late Phyllis Barnes.

The Barnes family attorney, Kenneth Allen, said the jury verdict "will be enough to send Weinberger a message that he's not going to reap any profits from his ill-gotten gains or future deals. This verdict will follow him and make sure that one way or the other, he pays for his wrongs."

Weinberger, who remains in the Metropolitan Correctional Center in Chicago, did not attend the trial. He's scheduled to be sentenced April 27 in federal court in Hammond, where he pleaded guilty to 22 counts of health-care fraud.

Weinberger admitted in October to fraudulently billing health insurance companies for $200,000 to $400,000 worth of surgeries he never performed.

He was charged in 2006, two years after he fled the country when clients began to complain and the FBI started to investigate him. He generated national media attention when he was finally caught in December 2009 in northern Italy, living in a tent at the base of a mountain.

In Barnes' case, Weinberger and Valparaiso physician assistant Joe Clinkenbeard were accused of failing to diagnose the cancer that claimed her life at age 50 in 2004. Weinberger was separately accused of performing unnecessary sinus surgery on Barnes, causing her pain and suffering.

The jury cleared Clinkenbeard of any liability in Barnes' death.

Before closing arguments, Dr. Dennis Han, an otolaryngologist who treated Barnes after Weinberger's surgery said he diagnosed her cancer immediately and performed numerous surgeries to remove the tumor and repair her vocal chords. Han repeated his earlier contention that Weinberger should have diagnosed Barnes' cancer and that the surgery he performed was unnecessary and caused her harm, irreversibly destroying bone and tissue.

Because Indiana law allows a maximum of $1.25 million per incident of malpractice, Weinberger's insurers are likely to file a motion to reduce the jury's award.

Weinberger still faces more than 350 other suits, including one scheduled to go to trial in May.

The Sun-Times article is here

The Indiana Court of Appeals ruled that compensation for attorney fees and other costs can be awarded under the Adult Wrongful Death Statute (“AWDS”).

From the opinion:

Beverly Brown, as executor of the estate of Barbara Frieden, settled a medical malpractice claim for the statutory limit and then petitioned the Indiana Patient’s Compensation Fund ("the Fund") for additional compensation. The trial court awarded $278,377.55, which included compensation for attorney fees, litigation costs, estate administration costs, and loss of services to Frieden’s parents. The Fund contends that these damages are not authorized by the Adult Wrongful Death Statute ("AWDS"). We affirm.

The decision, INDIANA PATIENT‟S COMPENSATION FUND, Appellant-Defendant, v. BEVERLY BROWN, Appellee-Plaintiff, No. 49A02-1001-CT-80 can be found here

Eads and Atterholt v. Community Hospital, a 5-0 decision written by retiring Justice Boehm:

A patient was injured leaving the hospital on crutches. She sued, asserting a general premises liability claim, and claiming the hospital was negligent in refusing her a wheelchair. The medical malpractice limitations period expired before her general negligence complaint was dismissed for failure to comply with the requirement of the Medical Malpractice Act that a medical malpractice complaint be filed with the Department of Insurance before it is presented to a court. We hold that under these circumstances a medical malpractice complaint alleging the same facts as the dismissed complaint may be deemed a continuation of the first complaint for purposes of the Journey's Account Statute.

The opinion is here

9/9/10 Update: Legalnewsline.com has a story on this case here

On July 31st, the Michigan Supreme Court in O’Neal v. St. John Hosp. & Med. Center, held that Michigan’s statutory loss of opportunity provision (Section 2912a(2)) does not apply to medical malpractice cases. Specifically, the court stated:

“We hold that the Court of Appeals erred by relying on Fulton and determining that this is a loss-of-opportunity case controlled by both the first and second sentences of MCL 600.2912a(2), and instead hold that this case presents a claim for traditional medical malpractice controlled only by the first sentence of § 2912a(2). Further, we conclude that plaintiff established a question of fact on the issue of proximate causation because plaintiff's experts opined that defendants' negligence more probably than not was the proximate cause of plaintiff's injuries. Finally, we hold that Fulton did not correctly set forth the burden of proof necessary to establish proximate causation for traditional medical malpractice cases as set forth in § 2912a(2). Therefore, we overrule Fulton to the extent that it has led courts to improperly designate what should be traditional medical malpractice claims as loss-of-opportunity claims and has improperly transformed the burden of proof in a traditional malpractice case from a proximate cause to the proximate cause.”

The opinion can be found here