Justia Lawyer Rating for Robert D. Kreisman

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This was a medical malpractice and wrongful death case of a newborn baby. The issue on appeal to the Vermont Supreme Court was whether the defendants’ (two physicians and hospitals) motion to dismiss predicated on the plaintiff’s (the family of the newborn) failure to timely serve summonses on these defendants was justified.

The parents of the newborn baby alleged that on June 12, 2012 their son died as a result of medical malpractice at the defendant hospital and at the hands of two physicians, who were claimed to have been negligent in their care and treatment or lack of it.

The plaintiffs filed their complaints against both sets of defendants on June 20, 2014. Under the applicable code of civil procedure, the plaintiffs had 60 days to serve the defendants with summonses.  On Aug. 18, 2014, the day before the 60-day period was set to expire, plaintiffs moved for an enlargement of time for service, requesting that the court extend the deadline for service of process “for an additional sixty (60) days.”

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On April 6, 2007,  Dramara Sviels was born at Memorial Medical Center in Springfield, Ill. During the delivery, Dramara contracted Group B Streptococcus infection, which was claimed not diagnosed before Dramara was discharged from the hospital the next day. As a result of the infection, it progressed to very serious meningitis, which was diagnosed on April 8, 2007. The meningitis left Dramara with cerebral palsy and seizure disorder. According to the report of this case, the lifetime medical and caretaking expenses would amount to more than $20 million.

In the lawsuit filed by Dramara’s family, it was maintained that the child was exhibiting symptoms of sepsis during his stay at Memorial Hospital at the time of his discharge and during an April 7 phone call from Dramara’s  parents to the hospital nursery after discharge. The lawsuit maintained that these symptoms should have been immediately treated.

The experts who testified on behalf of Dramara’s family stated that a chain of command protocol at the hospital should have been initiated to delay the infant’s discharge and that the nurses who handled the April 7 phone call should have referred the baby to a pediatrician or to the emergency room for immediate care.

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In a recent report it was stated that cerebral palsy affects nearly 10,000 newborns every year. The statistics are more troubling in that research shows that 25-35% of all cerebral palsy cases could have been prevented. It has been reported that medical errors during or after the delivery of a child was the cause of cerebral palsy in 35-45% of deliveries.

The diagnosis of cerebral palsy occurs usually by 18 months of age. One in 323 children has been identified with cerebral palsy. The malady is more common in boys than in girls. In addition, cerebral palsy is found more often in children of African-American descent than in Caucasian, Asian or Hispanic children.

The medical costs of caring for and treating a child with cerebral palsy are enormous. According to the study, the lifetime cost of care for an individual with cerebral palsy is almost $1 million.

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Zofran is an anti-nausea drug.  It has been linked to serious birth defects when used during pregnancy.  In 2015, a federal panel created the special multidistrict litigation docket for victims who had been using the Zofran drug made by GlaxoSmithKline (GSK).

The defendant, GSK, filed a motion in this federal district court claiming that the lawsuit was pre-empted by federal law under the U.S. Supreme Court decision in Wyeth v. Levine.  In that case, it was held that federal regulatory clearance of a medication does not shield the manufacturer from liability under state law.  The U.S. District Court in the Massachusetts district, however, denied the motion stating that the judge was “loath to dismiss” the claims without giving families a chance to develop the facts of their respective cases through discovery.

Zofran was first approved by the federal Food and Drug Administration in 1991.  It is intended to control extreme cases of nausea such as with cancer medications or following an invasive surgery.  It has not been approved for use during a pregnancy.  However, the drug Zofran has been prescribed by physicians to expectant mothers to lessen the symptoms of morning sickness.

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Beatriz Escobar received prenatal care from the defendant obstetrician, Dr. Daniel Rostein. She was admitted to MacNeal Hospital for induction of labor at 38 weeks gestation on the afternoon of Oct. 3, 2005.

On admission, she was given Pitocin at progressively increased dosages throughout the evening. After fetal monitor strips indicated possible fetal complications around midnight, Dr. Rostein, who was not at the hospital, ordered preparations for a Cesarean section delivery.

Once Dr. Rostein arrived at the hospital and evaluated Escobar, he found no fetal concerns and decided to proceed with the original plan for a vaginal delivery.

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When an infant is tragically injured during childbirth by the negligence of an obstetrician, nurse wife or nurse, the defense, with few exceptions, relies on medical publications. Most of these publications come from the American College of Obstetricians and Gynecologists (ACOG). On the other hand, a plaintiff’s neuroradiology expert would be called to testify about the baby’s time of injury. ACOG has taken most birth trauma injury cases as having occurred in the prenatal stages of childbirth. In other words, during labor and delivery the HIE injury (hypoxic ischemic encephalopathy), which is the basis for the lawsuit, didn’t occur during labor and delivery, but instead occurred as a matter of course during the time prenatally. That’s the standard defense.

ACOG published in January 2003 a document that created strict criteria for establishing the existence of intrapartum HIE. Applying this stringent criteria, ACOG defenders argued that the injury to the baby occurred not during labor and delivery but prenatally. The claim that the baby was asphyxiated intrapartum, that is during labor and delivery, could not have happened because the strict criteria were not met.

The published paper by ACOG took the position that 4-10% of moderate to severe neonatal encephalopathy occurred as a result of hypoxia in the intrapartum period.

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Carol and Keith Klaine filed a medical malpractice lawsuit against Frederick Dressen D.O. and Southern Illinois Medical Services d/b/a The Center for Medical Arts. In an amended complaint, the plaintiffs added a party defendant, Southern Illinois Hospital Services d/b/a St. Joseph Memorial Hospital and Memorial Hospital of Carbondale (SIHS), for negligent credentialing of Dr. Dressen.

In the discovery process, SIHS provided over 1,700 pages of documents. However, SIHS refused to provide certain documents, which it listed in a privilege log, as required by Illinois Supreme Court Rule 201(n), asserting that the withheld documents were privileged pursuant to, inter alia, the Medical Studies Act (735 ILCS 5/8-2101) and the Healthcare Professional Credentials Data Collection Act (Credentials Act) (410 ILCS 517/1 et seq.).

The plaintiff moved the court to review the SIHS excluded documents that it claimed were privileged for an in-camera review. After reviewing the documents, the circuit court judge agreed with SIHS that all of the documents were privileged, with the exception of those documents contained in “Group Exhibit B,” “Group Exhibit F” and “Group Exhibit J.”

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Most recently, I have heard from mothers who have tragically lost a full-term baby for inexplicable reasons. In one particular case, the mother called me to talk about why her full-term child died in utero. She said that all of her prenatal care was uneventful. In fact, just 3 days before her due date, her doctor and staff did a final checkup on both her and her unborn child. Both were well.

This mother was 38 years old and had been trying for a full-term delivery with her husband for 7 years. She had been pregnant only once before but miscarried early in that pregnancy. Other than her somewhat advanced years, she had no known risks.

Yet when this mother called her doctor to say that the baby was not active, now just 2 days before her due date, the doctor discounted the alarm and told the mother that maybe she was in the early stages of labor. Instead, the mother’s blood pressure had actually become dangerously elevated,  which put the baby at risk.

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Last year, first-of-a-kind drug approvals by the FDA reached their highest level in 19 years. The annual total of first-of-a-kind drugs increased to this level because of the drug industry’s focus on drugs designed to treat rare and hard-to-treat diseases. In 2015, the Food and Drug Administration (FDA) approved 45 drugs with never-before-sold ingredients.

The FDA’s approvals are considered innovative in the treatment of rare and hard-to-treat diseases. This should be considered big news for the pharmaceutical companies as well as patients. However, specialty drugs on the market are accompanied by controversy over the enormous increase in drug costs to patients.

In fact, one of the most expensive drugs of the year was produced by Vertex Pharmaceuticals. The drug, Orkambi, is appropriate for treatment of cystic fibrosis. It is one of the most expensive drugs on the market and sells for $259,000 per year. The drug has been proven to iincrease lung function in patients with the deadly inherited lung disease. Cystic fibrosis is a disease that causes the buildup of sticky mucus to develop throughout the body.

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The law firm of Williams, Bax & Saltzman, P.C. represented Cole Goesel and his parents in a personal injury lawsuit that settled before trial. Because Cole was a minor, the law firm needed judicial approval to finalize the settlement. The parties’ contingent-fee agreement entitled the law firm to one-third of the gross settlement, while all litigation expenses would be covered by the Goesels’ share.

The U.S. District Court judge refused to approve the settlement unless litigation expenses were deducted off the top and one-third of the net settlement was allocated to the firm. The judge also rejected the firm’s attempt to count the cost of computerized legal research as a separately compensable litigation expense rather than rolling it into the fee recovery. The law firm appealed the judge’s order limiting its fees. The Goesels declined to participate.

The U.S. Court of Appeals reversed the district court judge’s decision. The appeals panel stated that although the district court enjoys substantial discretion to safeguard the interests of minors in the settlement of litigation, this discretion is not boundless. In this instance, the trial judge criticized aspects of the firm’s contingent-fee agreement that have received the expressed blessing of Illinois courts. The trial judge’s analysis of what the Goesels would receive, that being 51% of the gross settlement amount rather than 42%, was insufficient to justify discarding a reasonable contingent-fee agreement.

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