Articles Posted in Medical Malpractice

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Alfred J. Giudicy appealed the circuit court’s judgment dismissing his medical malpractice case without prejudice after he chose not to file an affidavit of merit within 180 days. The filing deadline is required under § 538.225. Giudicy argued that § 538.225 violates the Missouri Constitution.

It was also contended by Giudicy that the medical providers waived their defense of failure to file an affidavit of merit and that he substantially complied with the statute. The Missouri Supreme Court rejected those arguments and affirmed the circuit court’s judgment.

Section 538.225 serves “to cull at an early stage of litigation suits for negligence damages against health care providers that lack even color of merit” and “protect the public and litigants from the cost of ungrounded medical malpractice claims.” See Mahoney v. Doerhoff Surgical Serves, Inc., 807 S.W. 503, 507 (Mo. Banc 1991). The section also prevents the plaintiff from threatening a medical provider with a groundless claim before settlement in lieu of the high cost of defense.
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Chasidy Plunkard, 40, experienced pelvic pain and irregular bleeding. After undergoing a transvaginal ultrasound and diagnosed as having a cyst in the right ovary, she was referred to an osteopath, Dr. Charles Marks, who did an endometrial biopsy.

The biopsy was interpreted as benign. Dr. Marks allegedly told Plunkard that absent abnormal bleeding, nothing more needed to be done for her.

However, nine months later, Plunkard sought treatment for what was described as widespread pain. She also presented to a hospital emergency room five months later, complaining of severe abdominal pain. Plunkard underwent laparoscopic surgery and was later advised that she suffered from metastatic cancer.
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Mr. Doe., 66, presented to a hospital emergency room shortly before midnight, complaining of chest pain. He underwent an EKG and testing of his troponin levels; both tests allegedly were “nonspecific.” After Doe began belching excessively, treating physicians and medical providers allegedly administered a gastrointestinal cocktail.

Doe fell asleep and was later discharged and sent home. The next evening, Doe returned to the emergency room, complaining of continued chest pain.

He was transferred to another facility where testing revealed a 100% occlusion, blockage in his coronary artery. Doe also was treated for shock, stroke, acute kidney injury and respiratory failure among other things.
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When Linda Smith began experiencing abdominal pain, bloating and diarrhea, she consulted a gastroenterologist. The doctor ordered a CT scan. It was interpreted by a radiologist, Dr. Jonathan Foss, showing an unremarkable pancreas.

Approximately two and a half years later, Smith read through the radiologist’s addendum to her medical chart, which showed that she had a pancreatic mass. An MRI was recommended for her.

Smith was subsequently diagnosed as having metastatic pancreatic cancer, which required chemotherapy and surgery. Despite undergoing treatment, Smith died at the age of 56. She was survived by her husband and four adult children.
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Julius D’Amico, 73, was admitted to Bryn Mawr Hospital for surgery to treat what was believed to be an infection in her arm AV graft used for hemodialysis. During the surgery, she lost blood and fluid volume, which led to a postoperative decrease in her blood pressure, blood volume and hemoglobin.

In addition, that night she suffered prolonged periods of hypotension and decreased tissue profusion. After undergoing hemodialysis the next day, she became unstable, lost consciousness and suffered a fatal heart attack.

D’Amico was survived by her husband and two adult daughters.
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Mr. Doe, a diabetic who suffered from peripheral vascular disease, underwent a partial leg amputation. While undergoing inpatient rehabilitation, Mr. Doe developed symptoms of a gastrointestinal bleed and was readmitted to the hospital.

During Mr. Doe’s 5-day stay, his attending medical providers did not assess his surgical stump and nurses did not change his dressing.

Mr. Doe developed an infection of the incision site, resulting in gangrene. Consequently, Mr. Doe required a revision of the surgical stump. He sued the hospital alleging improper wound treatment.
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Daniel Scavetta, who had a history of intravenous drug abuse, began seeing internist Dr. James Agresti. Dr. Agresti prescribed Suboxone. After a colonoscopy revealed multiple polyps, including one that was too large to remove, Scavetta was referred to a colorectal surgeon, Dr. Joel Nizen.

A CT scan showed a 1.9 cm lesion in Scavetta’s liver and an enlarged spleen. This prompted the interpreting radiologist to recommend that Scavetta undergo an MRI of his abdomen. Although Dr. Nizen performed surgery approximately two weeks later, he did not investigate the lesion.

Approximately 13 months later, Scavetta saw blood in his urine. The CT scan and MRI revealed a 4.2 cm liver mass. Scavetta was subsequently diagnosed with having Stage IV hepatocellular carcinoma.
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Alexis Dameron was held in contempt for refusing to comply with the Circuit Court of Cook County’s discovery order. Under the order, she was required to disclose the report of Dr. David Preston to the defendants Mercy Hospital & Medical Center and several physicians who were defendants in this lawsuit.

Dameron initially disclosed Dr. Preston as an Illinois Supreme Court Rule 213(f)(3) controlled expert witness in her answers to defendants’ interrogatories. She subsequently moved to
redesignate Dr. Preston as a Rule 201(b)(3) consultant and thus shield Dr. Preston’s report, which would otherwise be discoverable under Rule 213(f)(3), along with any other documents from a comparison electromyogram (EMG) and/or nerve conduction study (EMG study) Dr. Preston performed on Dameron.

The plaintiff, Dameron, filed an interlocutory appeal pursuant to Illinois Supreme Court Rule 305(b)(5) and the appellate court reversed, holding that Dr. Preston could be redesignated as a Rule 201(b)(3) consultant and that Dameron could shield Dr. Preston’s report and EMG study from discovery. The Illinois Supreme Court allowed the defendants’ petition for leave to appeal.
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Mr. Doe, age 55, underwent surgery to repair a ruptured tendon in his right bicep. After the surgery, he complained to Dr. Roe, the surgeon, that he had numbness and tingling and could not feel his right hand.

Dr. Roe ordered an x-ray and allegedly told Mr. Doe that a nerve had been irritated during the surgery; he said this condition would improve in time.

However, several weeks later, Mr. Doe consulted a hand surgeon. Mr. Doe underwent exploratory surgery with the second surgeon, which revealed that the metal “button” used to anchor Mr. Doe’s tendon to the bone had entrapped the posterior interosseous nerve (PIN). Although the metal button was removed by the second surgeon, Mr. Doe suffered permanent nerve damage. This resulted in permanent pain and numbness as well as a lost function in his right hand. Mr. Doe was an accomplished piano player but is now unable to continue playing.
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Ms. Doe was in her late 30s and suffered from multiple symptoms, including headaches. She consulted Dr. Roe, a neurologist, who performed a clinical examination. Dr. Roe diagnosed Ms. Doe as having multiple sclerosis (MS).

For approximately the next seven years, Ms. Doe underwent chemotherapy treatment and took numerous medications, resulting in complications that included pulmonary embolism, infertility, and a compromised immune system. Now hospitalized for a sleep study, a medical provider told Ms. Doe that she did not have MS and never had the condition.

Doe sued Dr. Roe, the neurologist, alleging that he misdiagnosed her migraine condition as MS. Among other things, Doe argued that Dr. Roe chose not to confirm the diagnosis through a brain MRI and that previous imaging studies showed no evidence of lesions on her spine or brain.
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